BARKER & KEITHLY REPORTS OF CASES ADJUDGED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE COURT FOR THE TRIAL OF IMPEACHMENTS AND CORRECTION OF ERRORS OK THE STATE OF NEW YORK WITH COPIOUS NOTES AND REFERENCES, TABLES OF CITATIONS, &c. EDWIN BURRITT SMITH AND ERNEST HITCHCOCK, COUNSELORS AT LAW. BOOK I. CONTAINING COLEMAN'S CASES, 1 VOL. ; COLEMAN & CAINES' CASES, 1 VOL. ; AND JOHNSON'S CASES, 3 VOLS. THE LAWYERS' CO-OPERATIVE PUBLISHING COMPANY, NEWARK, WAYNE COUNTY, NEW YORK. 1883. Entered according: to Act of Congress, in the year eighteen hundred and eighty-three, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, Washington, D. (,'. B. R. Andrews, Printer, Rochester. N. Y. GENERAL TABLE OF CASES REPORTED THIS BOOK. CASES REPORTED IN COLEMAN. [Figures refer to Marginal Figures in respective vols.] Andrews v. Andrews Andrews, Andrews v. - Armstrong, M'Gourch v. Allen and Talmadge, Cornell v. - B 135 42 45 133 51 57 Beebe, Paddock v. Brantingham's Case Branson, Boardman et al. v. Brooks v. Patterson Ballard & Parkman, Kibbe & Ludlow . Berry who, &c., Ellis et al., assignees, v. Bird, Savage and Bird, Robert ^Murray & Company v. - 58 Baker, Burns v. 73 Brown v. Mitchell 84 Britt et al. v. Van Orden 96 Burr . Skinner 97 Byron et al., Lefferts v. 110 Boardman et al. v. Branson 45 Burns v. Baker 73 Butler et al. c. Ditz - 102 Barret v. Forrester 92 Boardman & Hunt v. Fowler, manucaptor, 108 Benninger v. George 85 Bird, assignee, &c., v. Mabbit et al. 65 Ball, Phelps v. 66 Ball, Wendover v. 44 Bird et al. v. Sands 105 C Carnes v. Duncan, administrator 35 Cohan, administrator, Kip v. 45 Child v. Murray, manucaptor - 59 Cannon, manucaptor, Cathcart . 60 Church, Clason and Stanley t>. 62 Card, Fitzroy et al. v. - 63 Conklin . Hart 69 Cornell v. Allen and Talmadge 70 Cannon, manucaptor, Cathcart v. 80 Crygiers v. Long - 103 Cole etal., Staff ordv. 107 Cascadier, an insolvent debtor 116 Cathcart v. Cannon, manucaptor - 60 Clason and Stanley v. Church - 62 Cathcart v. Cannon, manucaptor 80 Campbell, assignee, &c., v. Grove 113 Campbell, Hoyt and Bennett v. 128 Cuyler v. Vanderwerker - 89 Carter, Winter v. - 47 Case v. Shepard 90 COLEMAN. D Dobbin v.- Watkins - - 33 Drake v. Hunt 43 Driggs, Van Loon t. 50 Drake v. Miller - 85 Dole, sheriff, v. Moulton et al. - 87 Durell, Stansbury, assignee, &c., v. 99 Delavan, The same v. 99 Ditz, Butler et al. v. 102 Duncan, administrator, Carnes v. 35 Denning, Hyers v. 70 Dusenbury, Sharp . 134 Dowelle, The People D. 35 Dill v. Woods - 106 E Earl v. Lefferts - - 98 Edwards, McKinstry T. 124 Ellis et al., assignees, v. Berry, who, &c. 57 Evers, Price . 41 Eden, Wardell v. 137 F Franklin et al., Nore v. 46 Fleming, executor, v. Tyler 66 Forrester, Barrett v. 92 Fowler, manucaptor, Boardman & Hunt v. 108 Finch, Kemble v. 109 Fitzroy et al. T. Card 63 Fox, Newkirk et ux. v. 133 Ferris v. Phelps 95 G Gillet, Wilde v. 64 George, Benninger . 85 Gourley v. Shoemakers 103 Graham, Storey v. Ill Grove, Campbell, assignee, &c., #. 113 Gillespie, Ptister & M'Comb v. 119 Gibbs, Scott v. 127 Griswold T. Haskius 75 Graves v. Hausenfrats - 97 Gorham v. Lansing, who is, . Holcomb et al. - Jenkins r>. Kinsley - Jenkins n. Pepoon et al. Jones, Percival v. K Kettletas t. North Knap, executor, t>. Mead Kip v. Cohan, administrator Kemble . Finch - - - Kinsley, Jenkins v. Kibbe & Ludlow v. Ballard and Parkman Ludlow, The People v. Le Conte T. Pendleton Loder, Scofield and wife D. Lansing, who is, &c., Gorham v. Livingston, Sackett v. - Larroway, Lewis et al. v. Larroway, Van Loon et al. v. Lefferts v. Byron et al. Long, Crygiers v. - Lefferts, Earl v. Lansing, Holmes et al. v. Low v. Hornbeck - Lewis et al. v. Larroway I^awrence and Dayton, Marston v. Le Conte v. Pendleton - Lothrop, Sacket v. Little c. Woodman et al. M M'Gourch v. Armstrong - M'Nealy, Morrison v. Mabbit et al. , Bird, assignee, &c. , v. Murray v. Smith - M'Kinley and Co. Marklar et al., M'Evers v. Marston v. Lawrence and Dayton Murray, manucaptor, Child v. Miller, Drake v. Moulton et al., Dole, sheriff, v. M'Kinstry v. Edwards Morrison v. M'Nealy M'Evers v. Marklar - M'Coon, Suydam v. Mead, Knap, exec., v. Mitchell, Brown v. M'Dougal, Wimple et al. v. N Newkirk et ux. u. Fox Nore v. Franklin et al. North, Kettletas v. O Oudenarde r. Van Bergen Ouderkirk, Van Patten t>. - 92 97 127 128 69 43 103 61 136 55 104 49 122 45 109 136 51 34 72 98 116 122 124 124 110 103 98 92 127 124 94 74 91 54 50 61 65 71 78 93 94 59 85 87 124 61 93 59 122 84 49 133 46 49 47 118 Platt v. Platt Price v. Evers - Pepoon et al, Jenkins v. Phelps v. Ball - Phelps, Stafford v. Pendleton, Le Conte v. Platt v. Bobbins et al., admrs. Phelps, Ferris t. Percival v. Jones - Post v. Van Dine Peck, Philips v. Palmer v. Sabin Patterson, Brooks . Paddock . Beebe Pfister & M'Comb . Gillespie Pendleton, Le Conte v. Platt, Platt v. Philips v. Peck Q Quackenbos v. Woodward - R 36 41 55 66 67 74 81 95 104 106 112 132 133 135 119 72 36 112 120 Robert Murray & Company v. Bird, Sav- age and Bird ----- 58 Robbins et al., admrs., Platt v. 81 8 Sharp v. Dusenbury 134 Suydam v. M'Coon - - 59 Swartwout, manucaptor, Gelston, assign- ees. &c., . - 76 Salstonstall, White . - - - - 82 Shepard, Case v. - 90 Sacket v. Lothrop - - 91 Sable v. Hitchcock - - 103 Sands, Bird et al. v. - 105 Slosson, Wheaton . 121 Swift, Sacket v. 122 Seely v. Shattuck - - 126 Spencer v. White 67 Sabin, Palmer . - 132 Skinner, Burr .---- 97 Stafford v. Cole et al. - - - 107 Storey v. Graham 111 Scott v. Gibbs - - 127 Stansbury, assignee, &c., . Durell - 99 Same, at the relation of Allaire, v. The Judges of Westchester - 135 Same e. Delavan - 50 Shoemakers, Gourley v. 103 Scofield and wife v. Loder 98 Sacket . Livingston - - - - 122 Smith, Murray v. 71 Stafford v. Phelps - 67 Sacket v. Swift 122 Shattuck, Seely v. 126 The People v. Dowelle 35 The same, at the relation of Thompson, . The Judges of Westchester - - 55 The People v. Townshend 68 The People v. Waters, sheriff - - 77 The People, at the relation of Jansen, v. The Judges of Ulster - - - 117 Tyler, Fleming executor v. - 66 Tylee, Herring v. 64 The People v. Ludlow 34 COLEMAN. CASES REPORTED. The Judges of Westchester, The People, at the relation of Thompson, v. 55 Townshend, The People v. - 68 The Judges of Ulster, The People, at the relation of Jansen, v. 117 The Judges of Westchester, The people, at the relation of Allaire, r>. - 135 Towers v. Vielie - 86 The People v. Waters, sheriff 77 V Vielie, Towers v. - Vanderwerker, Cuyler *.- Vischer et al. , Van Alen v. Van Patten . Ouderkirk Van Loon v. Driggs Van Loon et al. v. Larroway Van Orden, Britt et al. . Van Bergen, Oudenarde T. - COLEMAN. 86 89* 115 118 99 124 96 47 Van Dine, Post v. Van Alen v. Vischer et al. W Wardell v. Eden Wendover v. Ball - Winter v. Carter Wickham v. Waters Wimple et al. v. M'Dougal Woodman et al., Little- 0. Wisner et al. v. Wilcocks et al. White, Spencer v. Waters, sheriff, The People v. Woods, Dill v. Williams, an insolvent debtor - Woodward, Quackenbos v. - Watkins, Dobbin to. Wilde v. Gillet White v. Saltstonstall Wheaton . Slosson Waters, Wickham v. Wilcocks et al., Wisner et al. v. 106 115 137 44 47 49 49 54 56 67 106 113 120 33 64 82 121 49 65 CASES REPORTED IN COLEMAN AND CAINES. A Abeel t>. Wolcott et al. - 229 ; Adams, Keeler v. 435 ! Allen and Talmadge, Cornell v. 75 Ames, Moore . 490 Anonymous, 160, 176, 345, 399, 406 408, 409, 419, 426, 428, 456, 461 488. Andrews v. Andrews Andrews, Andrews v. 121 Arden et al. . Rice et al. Arjo v. Monteiro - - 227 Armstrong, M'Gourch v. Arnet, M'Gregor t>. 166 Atterbury v. Teller, Junior, - 309 B Bach and Bach r. Coles - 434 Bacon, Olney v. - 474 Bacon, More t. - 433 Bailey, Seaman t>. Bain ~v. Thomas and Green 359 Baker, Burns v. - 78 Baker and Sloane v. Sleight, Sheriff of Essex 343 Baldwin, Delavan v. 458 Ball r. Ryers 435 Ball, Wendover v. 49 Balletal., Russelr>. 233 Ball, Phelps v. 71 Billiard and Parkman, Kibbe and Lud- low v. - - 56 Bancroft, Bogert v. 466 Barhite et ux., Stay ley . 394 Barret t>. Forrester 95 Bates v. Williams - 70 Bayard p. Malcom and Malcom 456 Beardsley, Broome v. 493 Beebe, Paddock . 135 Bedford, Henrick T. Bedford, Reynolds r. - 484 Bt-dle et ux. V. Willett 148 Beekman ct al., Lucet et al. v. 428 Beekman r. Franker - 446 B<-lknap, Fall and Smith v. 473 Bell et al. 0. Rhinelander - 155 Benjamin, Masterton, gent., &c., . - 363 Benninger. George 89 Bergen and Garritson t>. Boerum 404 Berry, who is impleaded with Bushbee, Elles et al., assignees, &c., v. - 62 Borrian, Brandt ex dem. Palmer v. 473 Bird etal. . Pierpoint 462 Bird et al. fl. Sands - - - 107 Bird, assignee, &c., v. Mabbit et al. 70 Bird et al., Murray et al. v. 63 Blackford, Rathbone . 262 Boardman, Hinckley . 478 Boardman and Hunt v. Fowler, manu- captor - 111 Boardman v. Branson - 51 Boerum, Bergen and Garritson v. 404 Bodwell B. Willcox 367 Bogert t>. Bancroft 466 6 Bogardus, Reed v. 466 Borland, Delamater n. 337 Bowne, Gordon, survivor, &c. v. - 524 Bowne v. Shaw - - - 304 Bowne, Hun et al. v. 159 Bovce v. Morgan - 476 Bradt v. Cray 491 Bradford, Hawkins et al. r>. 216 Brandt, ex dem. M'Cleland, v. Burrows - 483 Brandt, ex dem. Palmer, t. Berrian 473 Brandt, ex dem. Walton, v. Ogden - 419 Brandt, ex dem. Van Courtlandts, v. Brantingham's case 48 Buckhout and Buckhout 186 Brain v. Rodelicks and Shivers - 176 Bradt v. Way et ux. - 361 Branson, Boardman v. 51 Brazier, Gilbert v. - 153 Brevoort v. Sayre and Hurd 419 Brett and Bunu v. Hood 259 Britt et al. v. Van Orden - 99 Bronk, Haughtalling v. - - 495 Brown v. Smith - 430 Brown v. Mitchell - - 88 Brown, Jackson ex dem. Prior v. 299 Brown, Jackson ex dem. Rodman v. 209 Brown et al, The People v. 284 Brownell, Jackson, ex dem. Golden v. - 488 Brower, Manhattan Company D. 322 Brooks*. Hunt 444 Brooks . Patterson 133 Broome v. Beardsley - - - 493 Buckhout and Buckhout, Brant ex dem. Van Cou/tlandts i>. 186 Bunker, Pell v. - 344 Burdock & Cace, The People v. 4.18 Burns v. Baker - 78 Burr v. Skinner 100 Burrows, Brandt ex dem. M'Cleland v. 483 Butler et al. v. Ditz 105 Butler, Marscroft v. 366 Bvron et al., Lefferts v. 112 Caines, Giles v. - 463 Callagan et al. . Hallet and Bowne - 179 Camman v. New York Insurance Com- pany 188 Cammann, Mumford . 482 Campbell v. Grove -J^~_- r - 115 Campbell v. Munger et al. - 209 Campbell, Hoyt and Bennet v. 129 Campbell & Lorraine, Cook et al. n. - 502 Cannon, rnanucaptor, Cathcart v. 65 Candee T. Goodspeed - 399 Card, Fitzroy et al. v. - 69 Games v. Duncan, adm. 41 Carter, Winter v. 52 Cary, Ranney v. - 465 Cascadier's case 117 Case v. Shepherd 94 Cathcart . Cannon, manucaptor, - 65 Catlin, Simonds v. 346 Chamberlin et al., Jackson ex dem. Wil- liams et al. . 221 COLEMAN AND CAINES. CASES REPORTED. Chamberlain, Waddington . ;:i . - 400 Chandler et ux. v. Trayard 358 Cheetham v. Lewis -' - - - 498 Cheetham, Smith v. - - - ' . - 425 Child v. Murray, manucaptor 65 Childs, Meiks e. - - - - - 482 Church, Clason and Stanley v. - - 68 Christie, Van Drisner v. 482 Church v. New York Insurance Com- rny - - - - '-- - 148 v. Frost et ux. - - - - 464 Clarkson . Gifford .... 158 Clason v. Lyle 233 Clason and Stanley v. Church - - 68 Clason, Lyle v. 233 Clinton v. Porter 388 Clinton v. Croswell .... 398 Clough, Koy . 425 Codwise and Ludlow v. Hacker - - 401 Cod et ux. v. Harrison et al. - - 431 Coffin. Tracy 470 Cogswell v. Vanderbergh 214 Cogswell, Kirby v. - - - - 300, 320 Cohan, admr., Kip v. - - - - 50 Cole v. Grant 368 Cole v. King ib. Cole D. Grant et al - ... ib. Cole et ux. v. same - ... ib. Cole v. Stafford - - - - 228 Cole, Stafford v. 110 Coles, Bach and Bach v. ... 434 Coles et al. v. Thompson ... 329 Colfaxetal., Shaw & Barker 0. - 450 Columbian Insurance Company, Living- ston 0. - 339 Columbian Insurance Company, Mum ford and Mumford 0. - 400 Columbian Insurance Company, Nichol and Thompson . - 262 Columbian Insurance Company, Pom- roy v. 408 Columbian Insurance Company," Stein- bach v. 374 Columbian Turnpike Company v. Wood- worth ... - - 363 Combs v. Wyckoff - - - - 202 Conklin v. Hart 74 Cornell 0. Allen and Talmadge - - 75 Cotton, Hallett v. - - . - - 150 Cox et al. , Neilson v. - 197 Cook et al. v. Campbell & Loraine - 502 Cray, Bradt 0. 491 Crocken, Renaudet .---- 218 Crocker, Gardinier v. - - - - 481 Crosby, Whitney v. - - - - 442 Croswell, The People v. - 205 Croswell, Clinton v. - 398 Cross. Hobson 367 Crygiers 0. Long - - - - 106 Cuyler 0. Yanderwerker 93 D Davenport et al., Seaman v. - - 148 Day 0. Wilber- - - 381, 400, 406 Dean, Roosevelt v. 460 Dearman, Ekhart .--- 422 Deas0. Smith 221 Delafield, Livingston . - - - - 147 Delafield, Waterbury et al. . - - 324 Delafield, Watsons . - - - - 407 Delavan v. Baldwin - 458 Delavan, Stansbury, assignee, &c., . - 102 Delamater . Borland - - - 337 COLEMAK AND CAINE8. Den 0. Fen - 303 Denning, Heyers . 75 Denniston, Howell . - 448 De Peyster v. Warne 342 De Peyster et al. , Watsons . - - 162 DevoeY Elliot 396 Dill. Woods 108 Ditz, Butler et al. v. - 105 Dobie, Manny . - ... 496 Dobbin . Watkins - 39 Dole, Sheriff, &c., . Moulton - 91 Dowelle, The People . 41 Drake . Hunt - - 49 Drake . Miller - - 89 Driggs, Given v. - 485 Driggs, Stocking . - . 361 Driggs, Van Loon 0. 56 Du Boys . Fronk - - - 446 Duesenbury, Sharp . - 134 Duncan, adm., Carnes . - 41 Durrell, Stansbury, assignee &c., v. 102 E Earl . Lefferts 102 Eden, Wardell v. 137 Edwards, Masters . - - - 327 Edwards, M'Kinstry . 125 Eddy, Phelps 0. 232 Ekhart . Dearman .... 422 Elliot, Devoe . - - 396 Elles at al.. assignees, &c. . Berry, who is impleaded with Bushbee - - 62 Everitt, Surrogate, &c., The People, &c., ex rel. Beach . - - 149 Evers, Price v. - - 46 F Fall and Smith v. Belknap - 473 Fallmer . Steele et al. - - 158 Farrington . Rennie - 393 Felter Mulliner - 427 Fen, Den . - 303 Ferguson, Jackson, ex dem. Fisher . - 467 Finch, Kemble . 112 Finck, Sayer. - 413 Fisher, Robinson & Hartshorne . 452 Fitzroy et al. . Card - - 69 Fleming, executor, v. Tiler 71 Forrester, Barrett 0. - 95 Fox, Newkirk et ux. . 134 Franker, Beekman 0. - 446 Franklin et al., Nore 0. - 52 Freeman, Leonard 0. - 491 Freer, The People 0. - - 283, 309 Fronk. Du Boys 0. - 446 Frost et ux. , Clark 0. - - 464 Fowler, manucaptor, Boardman and Hunt0. - 111 Furman 0. Haskin - 410 G Gardenier 0. Crocker - - - 481 Gardner, Jackson ex dem. Norton et al. 0. - - 359 Gardnier, Van Ness 0. 165 Garrison, Rogers 0. - - 421 Gelston, Hartshorne et al. 0. - 434 Gelston, assignee &c. 0. Swartwout, manucaptor - 81 George, Benninger 0. 89 Gibbs, Scott 0. - 128 Gilbert 0. Brazier - 153 7 CASES REPORTED. Gilchrist v. Van Wagenen - - 313 Giles T. Caines - 463 Giles, Jackson, ex dem. Counter r. 442 Gifford, Clarkson v. - - - 158 Gillespie, Pfister and M'Comb r. 120 Gillet, Wilde ?. - "- 69 Gillingham, Moyle r.. - 176 Gilliland Morrel - - - 212 Given v. Driggs - - - 485 Gordon, survivor, &c. . Bowne - 524 Gorham v. Lansing 117 Gould, Tillotson t>. 373 Gould, Spencer . 373 Gourley v. Shoemakers - - - 106 Goodspeed, Candee n. 399 Grant, Cole. - 368 Grant et al., Cole t. 368 Same, Cole et ux t>. - 368 Graves v. Hausenfrate 101 Green, Grover v. - 190 Green, Williams t. 470 Griswold c. Haskins . ... 80 Griswold et al. v. Stoughton - - 146 Grove, Campbell r. - 115 Grover v. Green - 190 Guthrie, Wilson c. - - 477 H Hacker, Codwise and Ludlow r. - 401 Hacker, Ludlow et al. e. 177 Haff . Spicer et al. - - 495 Haight, Jackson ex dem. Van Bergen et al v. 357 Hallet . Cotton - - - - - 150 Hallet, Shuter v. - 189, 330 Hallet and Bowne, Patrick r. - 421 Hallet, Low v, - 417, 432 Hallet, Huguet, assignee, /?. - 162 Hallett, Milward v. - 267 Hallett and Bowne, Callagan et al. /. - 179 Halsey. Watsons 160 Hallock v. Robinson - 395 Hamilton v. Holcomb et al. 67 Hammond, Jackson ex dem. Smith v. - 311 Hart, Woods r. - 447 Hart, Conklin r. - - 74 Hartshorne et al. v. Gelston 434 Harrison et al., Cod et ux. P. - 431 Haskin, Furman v. 410 Haskins, Griswold c. 80 Haughtalling r. Bronk 495 Hausenfrats, Graves c. - 101 Hawkins et al. v. Bradford 216 Herbert, Manhattan Company V. - - 147 Henrick t>. Bedford 484 Henry, Hudson r. - - - 168 Herrings. Tylee 69 Henshaw v. Marine Insurance Company 410 Heycraft, Ludlow t . ... 439 Heyers v. Denning 75 Hillyer, Ryers v. - 185 Hitchcock, Sable v. 106 Hinckley v. Boardman - - 478 Hobson, Cross v. 367 Holcomb etal., Hamilton^. - - 67 Holmes t. Williams - 449 Same v. Same .... 40(5 Holmes et al. v. Lansing - 97 Hopkins, Van Rensselaer r. - - 481 Horner, Lansing f>. 445 Hornbeck, Low v. 128 Horton, Wolfe v. .... 433 Howd, Jackson ex dem. Rosekrans T. - 474 8 Howell v. Denniston - Howland et al., Lenox et al. r. Howland et al., Maitland et al. v. ' - Hough t. Stover Houghton v. Strong Hoyt and Bennet Campbell Hood, Brett and Bunn r. Hubble et ux. adm. of Patterson, Ross et al. v. Hudson v. Henry Huguet, assignee, v. Hallet Hulbert, Spencer v. Hun et al. v. Bowne Hunt, Brooks T, - Hunt, Drake r. I Ingersoll, Mitchell . Ingersolls, Van Antwerp c. Isaacs, Remsen, admx. v. 3 Jackson, ex dem. Golden . Brownell Jackson, ex dem. Cramer v. Stiles, Wil- liams Tenant Jackson, ex dem. Cobley v. Valentine - Jackson, ex dem. Counter v. Giles Jackson, ex dem. Fisher v. Ferguson Jackson, ex dem. Finch et al. . Kough Jackson, ex dem. Hogeboom, v. Stiles, Griffin tenant Jackson, ex dem. Hogeboom, v. Stiles and Griffin Jackson, ex dem. Kemp et al. v. Parker and Brewster - Jackson, ex dem. Lawyer, . Stiles, Pal mitier tenant Jackson, ex dem. Lewis et al. . Van Loon Jackson, ex. dem. Low et al. t>. Rey- nolds Jackson, ex dem. Metcalfe, v. Wood- worth Jackson, ex dem. Norton, v. Stiles, Grover tenant Jackson, ex dem. Norton et al. . Gard- ner - Jackson ex dem. Prior, v. Brown Jackson, ex dem. Rosekrans . Howd - Jackson, ex dem. Root, v. Stiles, Van Buskirk tenant Jackson, ex dem. Russel et al. v. Stiles, Dockstader tenant Jackson, ex dem. Same . Same, Freelick tenant - Jackson, ex dem. Rosekrans, v. Stiles, Howd tenant - Jackson, ex dem. Rodman, v. Brown - Jackson, ex dem. Spilsbury et al. 0. Wat- son Jackson, ex dem. Smith, v. Hammond - Jackson, ex dem. Van Bergen et al. v. Haight Jackson, ex dem,. Ostrander . Van Der Mark Jackson, ex dem. Van Slyck et al. v. Sou - Jackson, ex dem. Williams et al. v. Chamberlin et al. Jackson, ex dem. Watson, v. Marsh Jackson, ex dem. Winter, v. M'Evoy - 448 499 503 394 302 129 259 323 168 162 418 159 444 49 429 370 156 CASES REPORTED. Jackson, ex dem. "Waggoner et al. . Murphy 481 Jackson . Manu 199, 856 Jackson v. Stiles 414 Jenkins v. Kinsley ;- - - 136 j Jenkins v. Pepoon et al. 60 | Jenkins, Union Turnpike Company v. - 264 | Jones and Crawford v. Reid - - 338 j Jones, Percival v. - - 107 Judges of the Common Pleas of Wash- ington, The People v. - - 362 Judges of Common Pleas of Ulster, The People ex rel. Jansen et al. Administrators of Jansen v. 118 Judges of Westchester Common Pleas, The People ex rel. Allaire . 135 Kane and Kent v. Scofield - - - 414 Keeler v. Adams - 435 Kemble v. Finch - 112 Kemper, Roosevelt v. - 341 Kenvey, Malin v. - - 192 Ketcham, Van Winkle . - 503 Ketteltas v. North - 54 King, Cole . - 368 King, The People ex rel. Bennet r. - 364 Kinsley, Jenkins . 136 Kibbe and Ludlow v. Ballard and Park- man - - 56 Kibbe and Titus v. Stoddard - 470 Kirby and Kirby v. Watkeys - - 216 Kirby v. Cogswell .... 300, 320 Kip v. Cohan, admr. 50 Kip v. Cohan, adm. - 50 Knap, exec., v. Mead ... - 120 Knap . Palmer ----- 302 Knapp v. Onderdonk - - - 426 Koy v. Clough - - 425 Rough, Jackson, ex dem. Finch etal. v. - 230 Lackey and Briggs . M'Donald - - 190 Lane, Malin v. - - - 192 Lansing. Homer - - 445 Lansing, Gorham v. 117 Lansing, Holmes et al. v. - - - 97 Larroway, Van Loon et al. v. 126 Larroway, Lewis et al. 9. ' - - 126 Lawrence, Lowry v. - 170 Lawrence et al. Marston v. 97 Lawrence . Van Wagenen 313 Le Conte v. Pendleton - - 76 Ledyard and Ledyard, Manhattan Com- pany v. - 226 Lefferts v. Byron et al. - - - 112 Lefferts, Earl v. - 102 Lenox et al. . Howland et al. - - 499 Leonard . Sunderlin - 480 Leonard v. Freeman .... 491 Lewis, Cheetham v. - 498 Lewis et al. v. Larroway - - 126 Little v. Woodman et al. - 60 Livingston v. Rogers - 303, 331 Livingston v. Columbian Insurance Company 339 Livingston. Delafield - 147 Livingston, Sacket . - - - - 124 Loder, Scofield et ux. . - 101 Long, Crygiers . 106 Lothrop, Sacket . - - 94 Loveland, M'Gregor . - - 166 COLEMAN AND CAINE8. Low . Hallet - 417, 432 Low . Hornbeck 128 Lowry . Lawrence - 170 Lucet et al. . Beekman et al. - 428 Ludlow et al. . Hacker - 177 Ludlow . Heycraft - - 429 Ludlow, The People . - 40 Lusher . Walton 206 Lydig, Manhattan Company . 423 Lyle . Clason 283 Lyle, Clason . 233 M Mabbit et al., Bird, assignee, &c., . 70 Maitland et al. . Howland et al. - 503 Malin . Kenney - 192 Malin . Lane - 192 Malcolm and Malcolm, Bayard . 456 Manny . Dobie - 496 Mann . Marsh 365 Mann, Jackson . - 199, 856 Manhattan Company . Lydig 423 Manhattan Company . Ledyard and Ledyard - 226 Manhattan Company . Brower 322 Manhattan Company . Miller - 345 Manhattan Company . Smith - 168 Manhattan Company . Herbert 147 Marine Insurance Company, M'Kay r. - 427 Marine Insurance Company, Henshaw. 410 Marine Insurance Company, Radcliff and Davis r. - - 461 Marsh, Jackson ex dem. Watson v. 210 Marsh, Mann r. - - 365 Marston . Lawrence et al. - 97 Marscroft v. Butler 366 Masterton, gent., &c., . Benjamin - 363 Masters . Edwards - 327 Mayor and Corporation of New York . Sands 420 Mead, Knap, exec. . - - 120 Meiks. Childs - 482 Merrill, Quick . 476 M'Alpine, Peck . - 490 M'Cabe . M'Kay 366 M'Coon, Suydam . 64 McDonald, Lackey and Briggs v. 190 M'Dougal, Wimple et al. . 54 McEvoy, Jackson ex dem. Winter v. - 207 M'Gregor . Loveland - - 1 66 M'Gregor . Arnet - ib. M'Gourch . Armstrong - 55 M'Kay . Marine Insurance Company 427 M'Kay, M'Cabe . - - 866 M'Kenzie . Williams 428 M'Kinstry . Edwards 125 M'Kinley's case 82 M'Nealy, Morison . 66 M'Neil's case - - - - - 175 M'Vicar . Woolcot - 501 Miller, Drake . 89 Miller, Manhattan Company . - 345 Milward . Hallett 267 Mitchell, Brown . - - 88 Mitchell . Ingersoll 429 Moore . Ames 490 More . Bacon 433 Morrel, Gilliland v. 212 Morgan, Boyce v. - 476 Morris, Finder . 489 Morison . M'Nealy - 66 Monteiro, Arjo . 227 Moulton, Dole, Sheriff. &c,, . 91 CASES REPORTED. Movie . Gillingham 176 Mulligan, Palmer et al., . Mulligan etal., Palmer v. - 360 Mulliner, Felter . 427 Mumford v. Cammann - 482 Mumford and Mumford n. Columbian Insurance Company Munger et al. , Campbell v. 209 Murphv, Jackson ex dem. Waggoner et al.Y - 431 Murray v. Smith - 76 Murray et al. v. Bird et al. - 63 Murray, manucaptor, Child v. 65 N Napier et al. v. Whipple 441 Negus, Van Cott . 396 Neilson T. Cox et al. - 197 Nichol and Thompson v. Columbian Insurance Company 262 Newkirk et ux. v. Fox 134 New Windsor Turnpike Company v. Wilson - 467 New York Insurance Company, Cam- man v. 188 New York Insurance Company, Church v. 148 New York Insurance Company, Town- send v. - - 144 North, Ketteltas v. 54 Nore v. Franklin et al. 52 O Ogden, Brandt ex dem. Walton . 419 Ogden, Steinbach v. 420 Olney v. Bacon - - 474 Onderdonk, Knapp v. 426 Ouderkirk, Van Patten v. 119 Oudenarde v. Van Bergen 53 Paddock v. Beebe - 135 Palmer, Knap v. - 302 Palmer et al. v. Mulligan 423 Palmer et al. v. Mulligan et al. - 360 Palmer v. Sabin - 133 Parkman v. Sherman - 260 Parker and Brewster, Jackson, ex dem. Kemp et al. v. 427 Patterson, Brooks t. - 133 Patrick v. Hallet and Bowne - 421 Payne, Thompson and Adams t. - - 441 Peck v. M'Alpine 490 Peck, Phillips v. 113 Pell T>. Bunker - 344 Pendleton, LeConte n. 76 Pepoon et al., Jenkins v. 60 Percival v. Jones 107 Petrie et al. , Van Home . 390 Petrie t. Wood worth 496 Pfister and M'Comb v. Gillespie - - 120 Phelps t>. Ball - 71 Phelps v. Eddy - 232 Phelps, Stafford v. 72 Phillips v. Peck - 113 Phillips, Shadwick v. - 471 Pierre C. Van Wyck, The People r>. - * 411 Pierpoint, Bird et al. v. - 462 Pinder v. Morris - 489 Platt v. Robins et al., administrators of Smith 85 Pomroy, t>. Columbian Insurance Com- pany 408 10 Pomroy v. Preston 416 Post v, Wright and Buchan 183 Preston, Pomroy v. - - 416 Price v. Evers - 46 Porter, Clinton t. - 388 The People v. Ludlow 40 The People t>. Dowelle - 41 The People v. Townsend 73 The People v. Croswell 205 The People v. Freer - 283, 300 The People v. Brown et al - 284 The People 0. Judges of the Common Pleas of Washington The People v. Waters - - -, - The People v. Wright - The People v. Pierre C. Van Wyck - The People T. Burdock & Case - The People v. Smith The People ex rel. Thompson, v. the Judges of the common pleas for Westchester The People ex rel. Jansen et al. admin- istrators of Jansen, v. Judges of com- mon pleas of Ulster The People ex rel. Allaire v. Judges of Westchester common pleas - The People ex rel. Bennet v. King The People, &c. ex rel. Beach v. Everitt, Surrogate, &c. Q- Quackenbos v. Woodward - Quick v. Merrill R. Radcliff and Davis v. Marine Insurance Company Ranney v. Crary - Rathbone v. Blackford - Reedfl. Bogardus Reid, Jones and Crawford . Remsen, admx. v. Isaacs Renaudet v. Crocken Rennie, Farrington n. - Reynolds D. Bedford - ... Reynolds, Jackson, ex dem. Low et al. 0. Rhinelander, Bell et al. v. - Rice et al., Arden et al. . Robins et al. Administers of Smith, Platt v. Robinson, Hallock v. Robinson & Hartshorne $. Fisher Rodelicks and Shivers, Brain . Rogers v. Garrison Rogers, Livingston v. 303, Roosevelt . Dean Roosevelt v. Kemper Ross et al. v. Hubble et ux. adm. of Pat- terson - Russel v. Ball et al. Russell, Witmore v. Ryers v . Hillyer Ryers, Ball v. 362 82 390 411 458 497 61 118 149 121 476 461 465 260 466 338 156 218 393 484 155 155 312 85 395 452 176 421 331 460 341 323 233 479 185 435 8 Sabin, Palmer v. Sable t. Hitchcock Sacket. Livingston Sacket v. Lothrop - Sacket v. Swift - Saltonstall, White t. 133 - 106 124 94 124 86 COLEMAN AND CAINE8. CASES REPORTED. Sampson, Spencer v. - -'-- 311 Sands, Bird et al. v. - - - - 107 Sands, Mayor and Corporation of New York t>. - 420 Sayer . Finck - v - - 413 Sayre and Hurd, Brevoort v. 419 Schenck & Ten Brook v. Woolsey 453 Schermerhorn, Schermerhorn v. 495 Schermerhorn v. Schermerhorn 495 Schermerhorn et al. . Tripp - 371 Scofield, Kane and Kent v. - 414 Scofield et ux. v. Loder - 101 Scott. Gibbs - - 128 Seaman v. Bailey 391 Seaman . Davenport et al. 148 Seeley v. Shattuck - 127 Shadwick v. Phillips - 471 Sharp D. Duesenbury 134 Shattuck, Seely v. - 127 Shaw and Barker . Coif ax et al. 450 Shaw, Bowne .-.-- 304 Shawe v. Wilmerden - 424 Sheffield v. Watson 157 Sherman, Parkman v. 260 Shepherd, Case . - 94 Shoemakers, Gourley v. - 106 Shuter v. Hallet - - 189, 330 Simonds v. Catlin - ... 345 Skinner, Burr v. - - - 100 Sleight, Sheriff of Essex, Baker and Sloanefl. - - - 343 Slosson, Wheaton v. - 122 Smith, Brown v. - - 430 Smith D. Cheetham - - - 425 Smith, Deas . 221 Smith, Manhattan Company v. - 168 Smith, Murray .----- 76 Smith, The People . - - 497 Smith, Strong et al. v. 340 Smith, Williams v. 403 Son, Jackson, ex dem. Van Slyck et al. v. 389 Spicer et al., Haff v. 495 Spencer v. Gould 373 Spencer v. Ward 373 Spencer . Webb - 194 Spencer v. White - - - 72 Spencer v. Sampson - 311 Spencer v. Hulbert - ... 413 Stafford, Cole v. 228 Stafford T. Cole - 110 Stafford v. Phelps - - 72 Stansbury, assignee, &c., . Delevan - 102 Stansbury, assignee, &c. -v. Durrell - 102 Stayley v. Barhite et ux. 394 Steele etal., Fallmerfl. - 158 Steele et ux., Tenant, . 169 Same et al., Same, aseignee v. - 169 Steinbach v. Ogden 420 Steinbach t. Columbian Insurance Com- pany - 374 Stiles, Van Buskirk, tenant, Jackson ex dem. Root v. - 468 Stiles, Dockstader, tenant, Jackson ex dem. Russel et al. v. 443 Same, Freelick, tenant, Jackson ex dem. Same v. - - 443 Stiles, Howard, tenant, ex dem. Rose- krans v. 317 Stiles, Jackson v ... 414 Stiles, Williams Tenant, Jackson, ex dem. Cramer v. - 483 Stiles, Griffin tenant, Jackson, ex dem. Hogeboom, v. 227 COLEMAN AND CAINES. Stiles and Griffin, Jackson, ex dem. Hoge- boom, v. - - 314 Stiles, Palmitier tenant, Jackson, ex dem. Lawyer, v. 484 Stiles, Grover tenant, Jackson, ex dem. Norton, v. - - 477 Stocking v. Driggs - 361 Stoddard, Kibbe and Titus v. 170 Stoughton, Griswold et al. v. 146 Stover, Hough v. 394 Strong et al. v. Smith 340 Strong, Houghton v. - 302 Strowell v. Vrooman 371 Stryker . Eden - Warne, De Peyster v. Waters, The People t. Waters, Wickham r. Waterbury et al. v. Delafield \Vutkeys, Kirby and Kirby c. Watkins, Dobbin v, Watsons T. Delafield Watsons r. De Peyster et al. Watsons, Halsey v. Watson, Jackson &f dem. Spilslmry et al. t. - Watson, Sheffield v. Way et ux., Bradt v. - Webb, Spencer T . Webb v. Wilkie - Wendover v. Ball Wheaton . Slosson Whipple, Napier et al. r. Whitney v. Crosby White v. Saltonstall White, Spencer r. Wilber, Day v. - 381, 400, 12 214 93 469 90 494 116 371 400 417 206 373 373| 137 342 82 54 324 216 39 407 162 160 368 157 361 194 211 49 122 441 442 Wilcox, Bodwell . - 367 Wilde v. Gillet - - 69 Wickham v. Waters - 54 Wilcocks et al. , Wisner et al. r,. 62 Wilkie, Webb . -% - 211 Williams, Holmes v. - 449 Williams, Bates t. - 70 Williams v. Green 470 Williams v. Smith - 403 Williams' case - " r 114 Williams, M'Kenzie v. - 428 Willett, Bedle et ux. v. 148 Wilrnerden, Shawefl. 424 Wilson, Tower v. 487 Wilson v. Guthrie - 477 Wilson, New Windsor Turnpike Com- pany v. 467 Wimple et al. v. M'Dougal - 54 Winter v. Carter - - 52 Wisner et al. . Wilcocks et al. - 62 Witmore v. Russell 479 Woods T. Hart . 447 Woods, Dill v. 108 Woodworth, Jackson, ex dem. Met- calfe, v. - 480 Woodworth, Columbian Turnpike Com- pany v. 363 Woodworth, Petrie v. 496 Woodward, Quackenbos . 121 Woolsey, Schenck & Ten Brook t . 453 Woodman et . al., Little v. 60 Woolcot, M'Vicar v. 501 Wolcott et al., Abeel v. 229 Wolfe v. Horton - - - 438 Wright, The People t. 390 Wright and Buchan, Post r. - - 183 Wyckoff, Combs v. 202 COLEMAN AND CAIXE8. CASES REPORTED IN VOL. I. JOHNSON'S CASES. Allard 0. Mouchon, Alner, Eagle Andrews 0. Beecker, Arnold and Ramsay 0. The United In surance Company, Astor 0. Cooper, Aupoix, Laplace 0. B Badger, James 0. Bailey, case of Baker, Burns 0. Ball, Phelps 0. - - - Bank of the United States 0. Haskins, Barber and Griffin, Strong 0. Barrett 0. Forrester, Bartle, Ernst Bates 0. Williams, - Beach, Jackson, ex dem. Culverhouse, 0. Bently 0. Weaver, - Beecker, Andrews 0. - Betts 0. Turner, Billings 0. Skutt, Billings, Cortes 0. - Birdsall, Conroe 0. - Bird 0. Mabbett et al', Bird et al. 0. Sands, Blagge, Smith 0. - - - - - Blight, Neilson 0. Bloodgood, Johnson 0. - Boardman and Hunt 0. Fowler, Brantingham 0. Fay, Brandt, ex dem. Cortlandt, 0. Dyckman, Bridgen, Salter and Steele 0. - Broome, Gahn and Mumford 0. - Brooks 0. Patterson, Britt et al. 0. Van Norden, - Brower 0. Kingsley, Budd, Haines 0. Burns 0. Baker, ... Burr 0. Skinner, Byron, Lefferts 0. C Cahill 0. Dolph, ... Cannon, Cathcart 0. - - - Cantillon, Wilde 0. - Carter, Frost 0. - - - - Card, Fitzroy 0. Case 0. Shepherd, Case 0. Van Ness, - Cathcart 0. Cannon, Caulkins, Johnson 0. Church, Clason and Stanley 0. Church, Mumford 0. Clason and Stanley 0. Church, - Cole and Spalding, Stafford 0. Colvin 0. Morgan, Concklin 0. Hart, Conroe 0. Birdsall, Cooper 0. Astor, Corp 0. M'Comb, Cortes 0. Billings, JOHNSON'S CASES, 1. Covenhoven 0. Seaman, 23 OOA Crygier 0. Long, 393 *OU 332 - 411 Crysler, Jackson, ex dem. Bronck, 0. - Cuyler 0. Vanderwerck, - 125 247 i- D 60, 363 32 Dale, Ludlow 0. 16 406 Davis v. Ostrander, 106 Dederick, Valkenburgh, 0. 133 Delamater, Heermance 0. 220 iq-i Delavigne . The United Insurance Com- 101 qo pany, 310 o/o Denning, Heyer 0. 103 fj-t DeVilliers and Williams, White v. 173 ol Dill v. Wood, 394 - 132 JOA Ditz, Jackson, ex dem. Butler, 0. 392 o!s9 Dine, Post 0. 412 - 247 Doe v. Roe, - - - 25, 402 319 Dole v. Moulton, 129 30 Dole, Van Rensselaer 0. - 239, 279 /. 399 f)A A Dole v. Van Rensselaer, 330 - a4U /H 1 Dolph, Cahill 0. 333 411 fts Doughty, Mott 0. 230 DO 1 AK Doyle v. Moulton, - 246 105 Doguet v. Rhinelander et al., 360 - 270 Dunlap, Jackson, ex dem. M'Crea, 0. 114 - 31 Dunsbagh, Jackson, ex dem. Trowbridge 0. Durell, Stansbury 0. 91 396 394 - 238 Dyckman, Brandt, ex dem. Cortlandt, 0. 275 205 E - 51 413 Eagle 0. Alner, 332 - 255 Earle 0. Shaw, 313 , 275 Earle 0. Lefferts, 395 - 244 Ellis v. Hay, 334 120 Ensign 0. Webster, - 145 - 328 Ensign 0. Wands, 171 ,390 Ernst v. Bartle, 319 - 334 335 F - 134 Farringtou, Oakley 0. 129 391 Fay, Brantingham 0. - 255 - 415 Ferris 0. Phelps, 249 Fitzroy v. Card, - 30 Fleming v. Tyler, 102 - 333 Finch, Kemble 0. 414 28, 220 Ford v. Gardner, 243 - 123 Forrester 0. Barrett, 247 73 Fowler, Boardman and Hunt r. 413 - 30 Frost v. Carter, 73 245 - 248 28, 220 Gahn and Mumford v. Broome, 129 - 116 Gardiner v. Smith, 141 29 Gardner, Ford v. 243 - 147 Gelston v. Swartwout, 136 29 Gepherd, in the matter of 134 - 413 Gillet, Wilde 0. - - - - - 30 415 Goelet v. M'Instry, 405 - 103 Goix v. Knox, 337 127 Goix v. Low, - 341 - 32 Goodrich 0. Walker, 250 328 Goold 0. Shaw, 293 - 270 Gourley v. Shoemaker, 392 13 CABES REPORTED. Gouverneur, Le Roy et al. t . - Gouverneur and Kemble, Le Guen T. Graves n. Hassenfrats, Gravesend, Voorhis r. Green, Palmer v. Griswold, Haskins v. H Haines t. Budd, Hallett and Bowne, Vredenburgh r. Hamilton v. Holcombe, - Hart, Concklin v. Hassenfrats, Graves v. Haskins, Bank of the United States r. Haskins, Griswold v. Hay, Ellis e. Heermance v. Delamater, Herring r. Tylee, Heyer t>. Denning, - Holcombe, Hamilton t. Holmes t> . Lansing, Hopkins, Ken worthy r. Horton v. Palmer, Husted, the case of Jackson, ex dem. Bronck, r. Crysler, Jackson, ex dem. Butler et al. . Ditz, Jackson, ex dem. Cooder, T. Woods, . - Jackson, ex dem. Culverhouse, v. Beach, Jackson, ex dem. Fitzroy, v Sample, Jackson, ex dem. Jones, v. Striker, Jackson, ex dem. June, c. Raymond, Jackson, ex dem. Kane, v. Sternbergh, Jackson, ex dem. M'Crea, v. Dunlap, Jackson, ex dem. Moore, r> . Van Bergen, Jackson, ex dem. Murray et al., v. Wals- worth, Jackson, ex dem. Pickart, T. Backer, - Jackson, ex dem. Rensselaer and Crabb, v. Bull, Jackson, ex dem. Rensselaer, v. Whitlock, Jackson, ex dem. Trowbridge, t. Duns- bagh, Jackson, ex dem. Van Alen, v. Rogers, - Jackson, ex dem. Vrooman, v. Smith, - Jacocks, Prior r. James v. Badger, Jones and Crawford v. Reed, Jones, Percival v. Johnston t. Bloodgood, - Johnston v. Caulkins, - Justices of Chenango, People r. Justices of Delaware, People t. Kane, Sleght r. - Keaquick, Lawler u. Keating v. Price, - Kemble v. Finch, Kenworthy v. Hopkins, Kingslev, Brower r. Knox, Goix v. Laight et al. v. Morgan Lansing, Holmes v. Laplace c.Aupoix Lawler r. Keaquick Lawrence and Dayton, Marston v. - 225 Lefferts r. Byron - 415 437 Lefflngwell and Pierrepoint . White 99 391 Le Guen v. Gouverneur and Kemble - 437 237 Lenox, The United Insurance Company r. 377 101 Le Roy et al. v. Gouverneur 22ft 135 Le Roy et al. D. Veeder - 417 Lodie, Scofield t. 395 Lodge v. Phelps, 139 335 Lothrop, Sacket 0. 249 29 ib. Long, Crygier v. Low o. Silva - jfc 184, 39a 336 103 Low, Seton et al. T. 1 391 Low, Goix v. 341 132 Ludlow v. Dale 1ft 135 334 M 220 Mabbett, Bird r. - 31 31 Main c. Prosser, 130 103 Markler, M'Evers v. 248 29 Mackay v. Rhinelander et al. - 408 248 Marston, Tuttle r>. 26 107 Marston v. Lawrence and Dayton - 397 27 M'Comb, Corp v. - 328 136 M'Evers, Sheldon t. 169 M'Evers, t. Markler, 248 M'Kinley, in the matter of 137 125 M'Instry, Goelet v. 405 392 M'Nealy v. Morrison, 28 163 Morgan, Laight et al. t. 429 399 Morris, Vredenbergh t. 22S 231 Morehouse, Torrey v. - 242 284 Morrison, M'Nealy t. 28 85 Mott D. Doughty, - 230 153 Morgan, Colvin r. - 415 114 Moulton, Dole v. - 119 101 Moulton, Doyle v. - 246 Mouchon, Allard c. 280 372 Mum ford v. Church, 147 331 Murray v. Smith, - 105 Le Conte r. Pendleton - Lefferts, Earl t. 14 213 91 106 169 131 20 393 51 116 179 181 76 174 22 414 107 334 337 429 248 406 174 397 N Neilson v. Blight, Newkirk, Wells r. O Oakley v. Farrington, Ostrander, Davis r. 104, 135 Palmer r. Green, Palmer r. Horton, Patterson, Brooks f. People v. Townsend, People T. Justices of Chenango, People t. Justices of Delaware, People T. Waters, People v. Valentine, Pendleton, Le Conte v. Percival v. Jones. - Phelps p. Ball, - Phelps, Ferris T. - Phelps, Lodge v. Platt v. Robins and Swartwout, - Post t>. Dine, - Price, Keating r. - Prior v. Jacocks, Prosser, Main v. R Rathburn, Sebring and Van Wyck, . Raymond, Jackson, ex dem. June, r>. - Reed, Jones and Crawford v. - 205 228 129 106 - 101 27 - 328 -' 104 - 179 181 - 137 104, 135 393 - 31 249 . 139 276 - 412 22 - 169 130 331 85 20 JOHNSON'S CASES, 1. CASES REPORTED. Rhinelander et al, Mackay v. Rhinelander et al., Duguet v. - Roe, Doe 0. - - 25, Robins and Swartout, Platt v. Rogers, Van Alen .- Rogers, Thayer v. S Sacket 0. Lothrop, Saltonstall 0. White, - - Salter and Steele 0. Bridgen, Sample, Jackson, ex dem. Fitzroy, v. Sands, Bird et al. , v. Sebring and Van Wyck v. Rathburn Scofield v. Lodie, - -,' Seaman v. Covenhoven, - Seton et al. v. Low, Shaw, Earl . - Shaw, Goold P. Sheldon v. M'Evers, Shepherd, Case v. Shoemaker, Gourley v. Silva v. Low, - 184, Skinner, Burn?. Skutt, Billings c. - Sleght v. Kane, Slocum and Burling v. United Insurance Company, - Smith v. Murray, Smith, Jackson, ex dem. Vrooman, v. - Smith, Gardner v. - Smith v. Blagge, - Spence v. White, Spalsbergh v. Walrod, - Stansbury v. Durell, Stevenson, Towle and Jackson v. Stafford v. Cole and Spalding, Strong 0. Barber and Griff en, Striker, Jackson, ex dem. June, p. - Swartwout, Gelston 0. - Thayer v. Rogers, - Thompson 0. Tompkins, Townsend, People v. Towle and Jackson v. Stevenson, Towers v. Vielie, Tompkins, Thompson r. Torrey v. Morehouse, Turner, Betts v. JOHNSON'S CASES, 1. 408 Tuttle v. Marston, 25 360 Tylee, Herring ID. 31 402 Tyler, Fleming v. 102 276 281 U 152 United Insurance Company, Slocum and Burling v. - 151 United Insurance Company, Delavigne c. 311 249 United Insurance Company, Arnold and 221 Ramsay 0. 363 244 231 United Insurance Company v. Lenox, 377 394 V 331 QQS; Van Alen v. Rogers, 281 tsyo OQ Valentine, People v. 336 wtj 1 Valkenbergh v. Dederick, 133 1 9-tet Vanderwerck, Cuyler v. 247 O-Lt> oqa Van Ness, Case v. - 243 A&O 1fiQ Van Bergen, Jackson, ex dem. Moore, . 101 1DS7 9A.fi Van Norden, Britt v. 390 ISnO QQO Van Rensselaer 0. Dole 239, 279 O7* QQft Van Rensselaer, Dole v. - 330 OOU 001 Veeder, Le Roy, et al. r. 417 Ov A 10^ Vielie, Towers . 221 i\J. 272 JLvw aq Wands, Ensign . 171 *J*J\J 110 Waters, People v. 137 A -L\7 4.1 Q Weaver, Bentley v. - 240 TT J.O Q9Q Weavel v. Lasher, 241 O. Van Zandt, 69 Denton, People r>. 275 Desdoity, Skidmore v. - 77 Dole . Bull and Porter, - 239 Doe and Dunning, Jones v. 74 Doe and Lansing, Gorham v. - - 107 Dole v. Moulton, - - - 205 Doney, Palmer v. - 346 Douglass, Thomas v. - 226 Duguet T. Rhinelander et al., - 476 Dunning and Doe, Jones v. 74 384 296 292 280 116 424 109 253 480 442 107 438 408 105 283 Gelston, Brant, ex (fern. Prevost v. Gilfert v. Hallett and Bowne, - Gilbert . Field, - Gilbert r. Eden, Gibbs, Scott v. Gilchrist, Armstrong et al. v. - Gillespie, Pfister and M'Comb v. Giles v. Bradley, Goix v. Low, Goold and Goold . Shaw, Gorham v. Lansing and Doe, Gouverneur et al., Murray. - Graham v. Adams, Grove, Campbell v. - Goeen, Milner v. - \ H Hake, Jones v. 60 Hallett and Bowne, Nixen v. 218 Hallett, Faugier v. - 233 Hallett and Bowne, Gilfert v. - 296 Harrison, Kelly - - 311 Juhel v. Rhinelander, .... 120 Juhel et al. v. Church, ... 333 Juhel, Rhinelander et al. v. 487 K Kane v. Ingraham, .... 403 Kane, Sleight 0. 236 Kelly v. Harrison, 29 Kemp, Judah v. 411 Kenyon, Barnes 0. .... 381 Knapp 'v. Mead, - - - - - 111 Knott, Titford v. 211 Lague, Tunno and Cox v. - - - 1 Laing n. United Insurance Company, 174, 487 Lansing and Doe, Gorham v. - - - 107 Lansing v. Fleet, 3 Laroway, Jackson, ex dem. Lewis, v. - 114 Lawrence v. Bowne, - - - 225 Lenox, United Insurance Company v. - 443 Lewis . Elrnendorf , - ... 222 Livingston, Ricketts v. - - - 97 Livingston, Swift .---- 112 Livingston, New York Bank v, 409 Livingston v. Rogers, - 488 Loder, Scofield v. 75 Loomis and Tillinghast v. Shaw, 36 Low, Goix v. 480 Lucet, Rutgers . .... 92 Ludlow, Baker . ... 289 Ludlow, Johnston and Weir v. - - 481 M Mahany v. Fuller, - Mayell v. Potter, Mead, Knapp . M'Donald, Bogart v. M'Kinstry v, Edwards, JOHNSON'S CASES. 2. - 209 371 - Ill 219 - 113 N. Y. REP., BOOK M'Keel, Treadwell v, - - - 340 Milnerfl. Green, ...... 283 Moulton, Dole v. 205 Munroe and Roe v. Easton, 75 Murray . United Insurance Company, 66, 168, 263 Murray, Jackson, ex dem. Gansevoort, v 219 Murray v. Ringwood Company, - - 278 Murray v. Gouverneur et. al., - - 438 N Newkirk et al. . Willett, - 413 New York Insurance Company, Jack- son 1 ^, .... 191 New York Bank v. Livingston, - 409 Nitchie v. Smith, - ...... 236 Nixen v. Hallett and Bowne, - - 218 Noble, Renoard v. 293 O Olcott, People v. 301 Ouderkirk, Van Patten v. - - 108 Ouland, Allaire v. .... 52 Paddock v. Beebee, 117 Palmer v. Doney, - 346 Parker v. Tomlinson, - 220 Patterson, Brooks .---- 102 Peck, Philips v. 104 Percival v. Jones, 49 People D. Cayuga Judges, 68 People v. Pleas and Clark, - - 376 People v. Cochran, - - - - 73 People, ex relat. Allaire, v. Westchester Judges, - - - - - 118 People v. Denton, .... 275 People v. Olcott, 301 People v. Thompson, - - - 342 People, ex relat. Quackenboss . Burtch, 400 Pfister and M'Comb v. Gillespie, - 109 Philips . Peck, 104 Pepoon v. Jenkins, - - - - 119 Pepoon, Jenkins . 312 Peters, case of George, - - - 344 Platt, Jackson, ex dem. Martin v. - - 71 Platner's Executors, Van Rensselaer v. 17 Platner's Devisees, Van Rensselaer v. - 24 Pleas and Clark, People v. - - - 376 Potter, Mayell .--- - 371 Powell, Jackson, ex dem. Lewis and Ely . 67 R Rankin v. Blackwell, - 198 Ray et al. . Bogart et al., - - - 432 Reedy . Seixas, 337 Renoard v. Noble, 293 Reynolds, Clapp v. 409 Rhinelander et al. , Duguet v. - - 476 Rhinelander, Juhel v. - - - - 120 Rhinelander v. Juhel et al., - - 487 Ricketts v. Livingston, 97 Ringwood Company, Murray v. - - 278 Robertson and Brown v. United Insur- ance Company, - 250 Roe and Munroe v. Easton, 75 Roget v. Thurston, - - 248 Rogers, Livingston .--- 488 Roosevelt, Crammond v. 282 Rush*. Cobbett, - - - 70,256 Rutgers . Lucet, 92 1. 2 17 CASES REPORTED. Sable v. Hitchcock, Sable, Hitchcock v. ... 488 Salisbury, Jackson v. Huyck, Sands, Jackson v. .... 297 Scoffield v. Loder, - - - - - Scott r. Gibbs, 116 Seaman v. Haskins, - 195, 284 Sealy v. Shattuck, 69 Sebor, Haskins v. 217 Seixas, Reedy t>. 337 Shattuck, Sealy . Shaw, Loomis and Tillinghast v. 36 Shaw, Goold v. 442 Shepherd, Case v. Sherwood, Jackson, ex dem. Gifford v. - 37 Sharp v. Dusenbury, - 117 Shute v. Davis, .... 336 Sisson, Jackson ex dem. Potter, v. - 321 Skidmorep. Desdoity, 77 Sleight v. Kane, 236 Slosson, Wheaton v. - 111 Smith, Nitchie c. 286 Snowden, Haskins u. 287 Stafford v. Van Zandt, 66 Stagg, Butterworth n. 291 Stewart v. Williams, - 71 Stoughton, Fish v. - - - - 407 Suffelt, Hodges v. .... 406 Swift v. Livingston, .... 112 Thompson, People v, - - - - 342 Thomas r. Douglas, 226 Thurston, Roget . 248 Titford v. Knott, - - - - 211 Tomlinson, Parker . 220 Treadwell v. M'Keel, . - 340 Tunno and Cox v. Lague, 1 Van Bramer v. Hoffman, - - - 200 Vandenheuvel v. United Insurance Com- pany, 127 Van Patten t>. Ouderkirk, - - 452 18 Van Rensselaer, Executors of, v. Platner, 17 Van Rensselaer, Devisees of, v. Platner, 24 Van Schaick v. Edwards, - - - 355 Van Zandt, Demar v. - - - 69 Van Zandt, Stafford v. - - - - 66 Vredenburgh, Waddington v. - - 22& Vischer, Jackson, ex dem. Van Alen, v. 106 Vos and Graves v. United Insurance Com- pany, 180, 460- U United Insurance Company, Vandenheu- vel ,---- - 127,452 United Insurance Company, Murray v. 66, 168, 263- United Insurance Company, Laing v. 174, 487 United Insurance Company, Vos and Graves . .... 180, 469 United Insurance Company, Warren v. 231 United Insurance Company, Bakewell . 246 United Insurance Company, Robertson and Brown .---- 250> United Insurance Company, Franklin v. 285 United Insurance Company, Holmes t>. 33 United Insurance Company v. Lenox. 443- W Waddington r. Vredenburgh, - - 228 Wardell v. Eden, 121, 258- Warren t. United Insurance Company, 231 Weatherwax, Fish v. - - - - 215- Westchester Judges, People ex relat. Al- laire, v. 118- Wheaton v. Slosson, - - - - 111 Whitaker c. Cone 58 Whitaker, Cone v. - 280 Williams, Stewart v. 71 Wilcox, Bernard *.---- 374 Willett, Newkirk v. - - - - 413 Woodward, Jackson, ex dem. Quacken- boss, v. - - - - , 110 Woodworth et. al., v. Jones et. al., - 417 Ziele and Beeker v. Campbell, - - 382 JOHNSON'S CASES, 2_ CASES REPORTED IN VOL. Ill, JOHNSON'S CASES. Abbot 0. Sebor - ... Alsop and Pomeroy, Murray et al., 0. Armstrong and Barnwall, Cruger 0. B Ball, Russell v. Ballard 0. Walker Bates 0. New York Ins. Co. Bazen 0. Roget - _- Brinckerhoff, Jackson, ex. dem. Jones 0. - -. - Brush, Clement 0. - - L , -, '-' Butterfield, Carpenter 0. Byron, People 0. C Carpenter 0. Butterfield - Caswell, Jones 0. - - * - Church, Forbes 0. - - Clement 0. Brush - Clendining & Adams, Rice 0. Coit & Woolsey 0. Smith Coit & Woolsey 0. Houston - Columbian Insurance Company, Van- dervoort 0. - Columbian Turnpike Company, Gilbert 0. Conroy 0. Warren Cornell, Denn ex dem. Golden 0. - Croswell, People v. - - - Cruger 0. Armstrong & Barnwall - Crowningshield 0. New York Insur- ance Company Cummins, Dennis 0. - D Dale, Parage 0. - - - - Dennis, ex dem. Golden 0. Cornell Dennis 0. Cummins ... Denniston, Riggs 0. - Desbrough 0. Neilson - Dubois, Duncan 0. Duff 0. Lawrence & Van Zandt, - Duncan 0. Duboys - Dusenbury 0. Ellis Duval, Learned 0. - - - Dupuy 0. United Insurance Company E Ellis, Dusenbury 0. - Forbes et al. v. Church Franklin, People 0. - G Gilbert 0. Columbian Turnpike Com pany Guernsey, People 0. H Haight, Ward v. - Hallett, Herbert 0. - Hallet & Bowne, Patrick 0. - Hart, Johnson 0. - - - JOHNSON'S CASES, 3. Harvey, Hildreth 0. - - - - 300 Hastie and Patrick, Livingston v. - - 293 39 Hendricks, Jackson, ex dem. Gomez v. 214 - 47 Herring V. ganger 71 5 Herbert 0. Hallett 93 Hess V. Morgan 84 Hickock v. Scribner - - - - 311 - 91 Hildreth 0. Harvey - ... 300 60 Holmes et al. v. Lansing 73 - 238 Houston, Coit & Woolsey 0. - - 243 87 Hunt 0. Leon - 140 s 101 J - 180 Jackson, ex dem. Gansevoort 0. Lunn - 109 145 Jackson, -ex dem. Gansevoort v. Parker - 124 53 Jackson, ex dem. Gomez v. Hendricks 214 Jackson, ex dem. Jones v. Brinckerhoff 101 Jackson, ex dem. Lewis 0. Laroway - 283 - 145 Jackson, ex dem. Smith v. Wilson - - 295 29 Jackson, ex dem. Woodhull 0. Rumsey 234 - 159 Jackson, ex dem. Woodworth 0. Lindsay 86 180 Johnson v. Hart ----- 333 - 183 Jones v. Caswell 29 16 - 243 K i- 137 Kemble 0. Gouverneur and Rhinelander 130 ert - 107 L 259 Lansing, Holmes v. 73 - 174 Laroway, Jackson, ex dem. Lewis, v. - 283 337 Lawrence v. New York Insurance Co. - 217 5 Lawrence & Van Zandt, Duff 0. - 162 ur- Learned v. Duval, ----- 141 - 142 Leon, Hunt v. 140 297 Lenox, the Un. Ins. Co. v. - - 178, 224 Lindsey, Jackson, ex dem. Woodworth 0. 86 Livingston 0. Hastie and Patrick, - - 293 156 Ludlow, Patrick v. - - - - 10 - 174 Lunn, Jackson, ex dem. Gansevoort, 0. 109 297 - 198 Lynch & Stoughton 0. Viar - - 303 81 M - 125 Moore & Pollock, Rundle et al., v. - 36 162 -lf)K Morgan 0. Woodworth 89 I ~-> 70 Morgan, Hess 0. 84 l U - 141 Murray et al., 0. Alsopand Pomeroy - 47 y 182 N Nase v. Peck - - 128 - 70 Neilson, Desbrough 0. - - - - 81 New York Insurance Company 0. Thomas - - - 1 159 New York Insurance Company, Crown- - 299 ingshield, 0. - - - 142 New York Insurance Company, Law- rence 0. - - - - - 217 m- New York Insurance Company, Bates 0. 238 107 New York Corporation, People 0. - 79 - 265 Nicoll, Steadfast, ex dem. Nicoll, 0. - 18 P 80 Parage 0. Dale 156 - 93 Parker, Jackson, ex dem. Gansevoort, 0. 124 76 Patrick 0. Ludlow 10 - 322 Patrick v. Hallett & Bowne - 76 19 CASES REPORTED. Pease, People v. 333 Peck, Nase v. 128 People v. Byron 53 People v. Guernsey .... 265 People 0. New York Corporation - - 79 People . Franklin 289 People r>. Pease 333 People v. Croswell 337 R. Rice v. Clendening & Adams - - - 183 Riggs D. Denniston - - - - 198 Rhinelander etal., Kemble & Gouverneur v. 130 Rhinelander etal., Stienback v. - - 269 Roget Razen v. 87 Roosevelt, Wilkie v. - 66, 206 Rumsey, Jackson ex dem. Woodhull v. 234 Rundle et al. , v. Moore & Pollock - - 36 Russel v. Ball 91 8 Saidler, Winton . 185 Sanger, Herring v. 71 Scribner, Hickock v. - - - - 311 Sebor, Abbot v. 39 Smith, Coit & Woolsey v. 16 Stagg & Snell v. United Insurance Com- pany 34 Steadfast ex dem. Nicholl v. Nicholl - - 18 20 Steinback v. Rhinelander et al. Striker, Thomas v. - - >,'t 269 90 Terhune, Van Nuys v. 82 Thomas, New York Insurance Com- pany v. ...... 1 Thomas v. Striker - - .-, - 90 U 182 United Insurance Company, Dupuy v. United Insurance Company, Lenox . - - 178, 224 United Insurance Company, Stagg & Snell v. ...... 34 Van Nuys v. Terhune - - - - 82 Vandervoort v. Columbian Insurance Company - . - - - 137 Viar, Lynch & Stoughton t. - - 303 W Walker, Ballard v.* 60 Warren, Conroy .---- 259 Ward v. Haight 80 Wilkie v. Roosevelt - - - - 66, 206 Wilson, Jackson ex dem. Smith v. - - 294 Winton v. Saidler 185 Woodworth, Morgan v. 89 JOHNSON 3. CITATIONS IN OPINIONS OF THE JUDGES CONTAINED IN THIS BOOK COLEMAN, COLEMAN & CAINES, AND JOHNSON CASES, THEEE VOLUMES. CASES CITED. Abbott of Strata Marcella, case of, 5 Co. 32, 1 J. C. 297 Abbott 9. Smith, 2 Bl. Rep. 947, 950, 2 J. C. 383 Abel 9. Potts, 3 Esp. 242 3 J. C. 231. 232 Adams 9. Buckland, 2 Vern. 514, 3 J. C. 57 Adams v. Dpdgson, 2 Atk. 157,. . 1 J. C. 434 Adams 9. Lingard, Peake, 117, .. 3 J. C. 186, 190, 196 Adams 9. Tomlinson, T. Raym. 100, 2 J. C. 313 Alanson 9. Butler, 1 Lev. 211, 1 Sid. 330, . 2 J. C. 5, 11 Alcorn . Westbrook, 1 Wils. 117, 3 J. C. 251 Alice v. Gale, 10 Mod. 112 2 J. C. 313 Allen 9. Allen, Bl. Rep. 697, .... C. & C. 349 Allen 9. Hill, Cro. Eliz. 238, 1 J. C. 47, 88 Allen u.Vinter, 2 Jones, 31,.. 2 J. C. 5, 11, 12 Allesbrook v. Roach, 1 Esp. Gas. 351, 352, 2 J. C. 214 Alves 9. Hodgson, 7 Term, 243, 1 J. C. 140 Always . Burroughs, Doug. 263, 1 J. C. 131 Andre 9. Fletcher, 3 Term R.266, 2 J. C. 334 Andrews 9. Beeker, U. C. 411,.. 2 J. C. 260 Anonymous, 2 Mod. 7, . . - 1 J. C. 87 Anonymous, Jenk. 121, Case 113, 1 J. C. 88 Anonymous, 1 Leon. 47, 3 J. C. 121 Anonymous, 1 Sid. 157,- 1 J. C. 126 Anonymous, Cro. Jac. 219, U. C. 217 Anonymous, 2 Hen. IV. 14, U. C. 225 Anonymous, 11 Hen. IV. 7, 1J. C. 225 Anonymous, 9 Hen. VI. 58,.... U. C. 225 Anonymous, 12 Mod. 607, U. C. 231 Anonymous, Nels. 78, U. C. 423 Anonymous, 1 Vern. 180,. 1 J. C. 423 Anonymous, Prec. in Cha. 536, . . 1 J. C. 423 Anonymous, 12 Mod. 515, 1 J. C. 503 Anonymous, 2 Mod. 100, U. C. 503 Anonymous, 1 Ld. Raym. 724, 2 J.C. 144, 455, 456 Anonymous, 6 Mod. 222, 2 J. C. 319 Anonymous, 2 Salk. 645... 2 J. C. 319 Anonymous, 2 Vent. 346, 2 J. C. 202 Anonymous, Jenk. Cent. 19, 2 J. C. 491 Anonymous, Freem. Rep. 475, Case 651, 3 J. C. 104 Anonymous, 4 Leon. 82, 3 J. C. 121 Anonymous, 3 Atk. 17 3 J. C. 236 Anonymous, 12 Mod. 502, 3 J. C. 266 Anonymous, 12 Mod. 88, 3 J. C. 266 Anonymous, 1 Ld. Raym. 732, 3 J. C. 292 Anonymous, 1 Leon. 287, 3 J. C. 384 Anonymous, Jenk. 5 c. 55, 3 J. C. 384 Anonymous, 11 Mod. 99, 3 J. C. 388 Anonymous, 1 Lev 3 J. C. 399 Archer's case, 1 Co. 64 b 2 J. C. 390, 392 Archer's case, 1 Co. 86, .. 3 Johns. C. 21, 26 Armstrong ex dem. Tinker v. Pierce, 3 Burr. 1901, 2 J. C. 325 Arnold . The United Ins. Co. 1 J. C.333, 3 J. C. 50 Arnold & Ramsey v. The United Ins. Co. U. C. 363, 2 J. C. 477 Astley 9. Reynolds, 2 Str. 913, 3 J. C. 241 Atkinson 9. Coatsworth, 8 Mod. 33, 34, 3 J. C. 176 Atkinson 0. Jameson, 5 Term R. 25, 2 J. C. 11 Atkinson v. Teasdale, 2 Bl. Rep. 817, C. &C. 368 Att'y Gen'l 9. Day, Ves. 221, C. & C. 352 Attorney General v. Sutton, 1 P. Wms. 755, 759, 760, 3 J. C. 22 Attorney General v. Wall, 5 Bro. P. C. 387, 1 J. C. 498 Attorney General 9. Town of Sal- lop, 2*Bro. P. C.405, 1 J. C. 498 Auriolt>. Mills, 4 Term R. 98, .... 2 J. C. 19 Avelyn 9. Ward, 1 Vesey',422, .... 2 J. C. 317 B Bachelour 9. Gage, Cro. Car. 188, 2 J. C. 19 Bachelor . Searle, 2 Vern. 737, 3 J. C. 22, 26 Backhouse 9. Wells, 2 P. Wms. 476 ; 1 Eq.Cas.Abr.184, 2 J.C. 390; 3 J.C.21, 26 Backwell v. Bardue, 1 Mod. 113, 3 J. C. 176 Bacon 9. Dubarry, 1 Ld. Raym. 246, - 2 J.C. 22 Bagley v. Warburton.Comyns Rep. by Rose, Case, 212... 1 J. C. 290 Bagley . Warburton, 2 Com 1 J. C.| 83 Bagshaw 9. Spencer, 2 Atk. 577; 1 Vesey,142,l46,-_ 2 J.G',393,899; 3 J.C.22 Baillie 9. Moudigliani, Park, 116, 1 J. C. 227 Baker fl.Bache, 2 Ld. Raym. 1382, 2 J. .C. 18 Baker v. The Bishop of London. 2H. Bl. 414 1 J. C. 492, 502 Baker e.Prit chard, 2Atk.389, .... 1 J. C. 423 Bald win 0. Blackmore, 1 Burr. 596, 602 2 J.C. 28 Balmerino, Lord, case of, 9 St. Sr. 302, 3J. C. 385, 387 21 CITATIONS. B Balston v. Baxter, Cro. Eliz. 304, 3 J. C. 247 Banister v. Scott, 6 Term, 489, 1 J. C. 75 Bank of England v. Morice, 4 Bro. P. C. 238, C. & C, 336 Banner v. James, 1 L'd Raym. 726, 1 J. C. 233 Barbone v. Brent, 1 Vern.176, ... 1 J. C. 492 Barker v. Braham, 2 Bl. Rep. 869, 871, C.&C.368 Barker v. Darner, 1 Salk. 80,.... 2 J. C. 336 Barker v. Keate, 1 Mod. 262, .... 2 J. C. 396 Barzillay v. Lewis, Park. 360, 725; 7 Term Rep. 523, 1J. C. 18, 349, 355, 2 J. C. 147. Basker v. Cambridge University, 1 Bl. Rep. 114, 115, 3J. C. 386 Basset . Salter, 2 Mod. 136, .... 2 J.C. 5, 11 Bates v. Graves, 2 Vesey Jun. 295, 1 J. C. 493 Beak e.Tmyrwhit,3 Mod. 195 2 J. C. 144 Blake v. Tyrrell, 1 Show. 6; Carth. 81... 1 J. C. 18; 2 J. C. 144, 456 Bean t>.Stupart,Park,322; Dough. 10, 1 J. C. 343, 348, 351 Beasley's Case, T. Jones, 64, 2 J. C. 294 Beaucamp v. Neggin, Cro. Eliz. 282, C. &C. 333 Beaufort, Duke of 9. Bertie, 1. P. Wms. 704 1 J. C. 218 Beck v. Robley, 1 H. Black. 89 n 1 J.C. 59, 60 Beckford v. Jackson, 1 Esp. Rep. 337, 2 J. C. 496 Beckford . Tobin, 1 Ves. 307, 310, 2 J. C. 202 Bedell's case, 7 Rep. 40, 1 J. C. 95 Bedell . Constable, Vaugh. 182, . 3 J. C. 56 Bedle v. Beard, 12 Co. 5, 3 J. C. 114, 118 Beebe ad*. People, Jany. 1802,... C. & C. 365 Bennct . Vade, 2 Atk. 324 ... A . . 3 J. C. 236 Bennet v. Viele, Jany. , 1802 C. & C. 486 Bent 9. Baker. 3 Term R. 27, 34, 3 J.C. 186, 190, 195, 237 Bereus t. Rucker, 1 Bl. Rep. 313, 3 J. C. 135 Bernard! 9. Motteaux, Doug. 575, 1 J.C. 18 354, 355, 358: 2 J. C. 147. The Bernon, 1 Rob. Adm. Rep. 103,106, 3 J.C. 52 Berry ads. Elles, Col. 57, 58, C. & C. 364 Berry . Perry, 3 Bulst. 64, 3 J. C. 232 Blackborn v. Edgley, 1 P. Wms. 601,605, 3 J. C. 22, 26 Blackham's case, 1 Salk, 290, 2 J. C. 143, 456 Blackstone . Stone, Skin. 269,.. 1 J. C. 231 Blake v. Blake, 5 Bro. 387, 1 J. C. 498 Bexwell v. Christie. Cowp. 395, . . 3 J. C. 32 Bird v. Appleton, 8 Term R. 562, 3 J. C. 133 Bird c. Cardwick, 1 Vern. 110,.. 3 J. C. 317 Bishop v. Church. 2 Ves. 100, 371, 2 J. C. 230 Bize v. Dickanson, 1 Term R. 285, 3 J. C. 241 Bland T. Robinson, 3 Burr. 1077, 2 J. C. 359 Blesard v. Hurst, 5 Burr. 2670, .. 2 J. C. 2 Blue v. Marshall, 3 P. Wms. 381, 2 J. C. 378 Bluet 9. Bampfleld, 1 Cha. Cas. 237, 2 J. C. 135 Btanden . Baugh, Cro. Car. 302, 1 J. C. 37, 43, 44, 86 B. Tell, 1 Salk, 271, 2 J. C. 11 Dominus Rex, v. James, Str. 1256, 1 J. C. 20 Dominus Rex, v. Rhodes, Str. 428, 3 J. C. 6 Dominus Rex. v. Seward, 2 Str. 739, 2 J. C. 337 Dormer v. Fortesque,3 Atk. 130,. 1 J. C. 172 Dowman v. Vavasor, 9 Co. 13, a, . 3 J. C. 367 Drage . Brand, 2 Wils. 377, 2 J. C. 406 Drake v. Beere.l Vent. 258; 1 Salk. 250, 1 J. C. 126 Draper's Company v. Davis, 2 Atk. 295, U. C. 500,507 Duguet P. Rhinelander, 1 J. C. 360, 2J. C. 192, 194 Duke of Marlborough v. Lord Godolpbin, 2 Vez. 78, 1J. C. 83, 84 Duke of Norfolk's case, 3 Ch. Cas 1 3 J C 25 Dyer t>. Missing, 2 Bl. Rep. 1035, 2 J. C. 28, 51 E 2 J. C. 18 2 J. C. 249 Eardleys.Turnock, Cro. Jac. 629, Earl v. Lefferts, 1 J. C. 395, ...... Earl of Pomfret v. Lord of Wind- sor, 2 Ves. 483, ____ ..... 2J.C. 436,437 Earl of Suffolk v. Green, 1 Atk. 450, .................... 1J Eddowes v. Hopkins, . C. 423, 434 C. & C. 183 Eden v. Parkinson, Park. 353, Doug. 732, ................. 2 J. C. 194 Edgworth v. Davis, Cas. in Ch. 40, ............... . ........ 2 J. C. 431 Eumondson v. Machell, 4 Term R. 5, ........................ 3 J. C. 258 Edmonson t.Popkin,! BOS.& Pull. 270 ..................... 2 J. C. 260,280 Eldridge v. Knott.Cowp. 215, ____ 3 J. C. 118 24 E Elkins v. East India Co.l P. Wms. 396,. - 2 J. C. 365 Eller's case,-l Leach,365, 2 J. C. 343 Ellis v. Johnson, Cro. Car. 261,... 2 J. C. 28 Ellis v. Segrave, 5 Bro. P. C. 478, 487, -. 1 J.C. 498, 507 Enderby v. Fletcher, Park. 309 (or 410, 4th ed.), 3 J. C. 13 Eny's Ex'r . Donnisthornes Ex'r, 2 Burr. 1190,1195,1197,.... 2 J. C. 19, 20 Erving v. Peters, 3 Term R. 685, 690,.., 1 J. C. 278 Evans v. Prosser, 3 Term R, 186, 3 J. C. 152, 154 Evered . Hone,2 Mod. 293 2 J. C. 316 Ewer v. Jones, 2 Salk. 41 5, 2 J. C. 202 Ewer v. Jones, 2 L'dRaym. 935,.. 1 J. C. 18- Eyre v. The Countess of Shafts- bury, 2 P. Wms. 103, 2 J. C. 59 Ex'rs of Hughs v. Hughs, 7 Term R. 350, 3 J. C. 65- F Fairclaim ex dem. Fowler, v. Sham title, 3 Burr. 1292, 1304, Col. 56; C. & C.62 Farmer ex dem. Earl, v, Rogers, 2 Wils. 27, 1 J. C. 402 Fazacharly v. Baldo, Salk. 352, Col. 39; C. &C. 44; 2J. C. 28 Fenner v. Meares, 2 Bl. Rep, 1269, 1J.C.52, 56 Fernandes . DeCosta, Park. 177, 1 J,C. 354, .... 356, 358 ; 2 J. C. 1 38, 456, 458, 464, 465. Ferrar's case, T. Raym. 84, 2 J. C. 304 Ferrer v. Beale, 1 L'd Raym. 692, 2 J. C. 29- Ferrers v. Sherley,12 Vin. 224, .... 1 J. C. 231 Field . Carron, 2 H. Bl. 27, 2 J. C. 109' Finch's case, Cro. Eliz.220; 2 Leo. 134 C. &C. 298 Finch . Finch, 2 Vesey, 492, ... 2 J. C. 416 Fitzherbert v. Fitzherbert, Cro. Car. 484, 3 J. C. 105- Fleetwood's case, 8 Co. 1 71 , 1 J. C. 225- Fletcher ?.Dyche, 2 Term R. 34, . 3 J. C. 298 Floyer D. Edwards, Cowp. 112, 113, 115, 2 J. C. 364 Floyer v. Johnson, 3 Bro. P.C.218, 1 J. C. 498 Foley & Windhams's case, 1 Leon. 105, Col. 95; C.&C.98 Forbes v. Wale.l Bl. Rep. 532 3 J. C. 291 Ford v. Grey, I Salk. 286; 6 Mod. 44, 3 J. C. 176 Forster v. Hale, 3 Ves. Jr. 712,.. C. & C. 353 Foster v. Bonner, Cowp. 454, C. & C. 175 Foster v. Wilmer,2 Str. 1249, .. 1 J. C. 193, 204 Foubert fl.Turst, 1 Bro.P.C.41... 1 J. C. 140 Fowler v. Dunn, 1 B. & P.48, .... 3 J. C. 121 Fox's case, 8 Rep. 93 b, 1 J. C. 95 Fox e. Fiely, 6 Mod. 225, , 2 J. C. 245 Franklin's case, 9 St.Sr. 255, 269, 3 J. C. 371, 388, 392, 398, 406 Franklin v. Bradell, Hutton,84,. C. & C. 333 Frederick v. Frederick, 1 P. Wms. 721; Miller, 359, 1 J. C. 218 Fronting Small, C. & C. 354 Frost v. Carter, 1 J. C. 73, 2 J. C. 281 Fry v. Penn, 2 Bro. Ch. R. 280, . 1 J. C. 423 Fuller's case, 5 St.Tr. 442, 444; 8 St.Tr. 78, 3 J. C. 387, 400, 406 Fuller v. Prentice, 1 H. Bl. 49,.. 2 J. C. 110 CITATIONS. G Gage v. Bulkeley, Ridgway, 266, 267, 2 J. C. 145,466 Galbraith v. Neville, Doug, ad- denda, U. C. 345 Ganesford v. Levy, 2 H. Bl. 119, 2 J. C. 105 Gardiner v. Smith, 1 J. C. 141, _ 2 J. C. 150, 266 Garner v. Anderson, 1 Str. 11,. . 2 J. C. 337 Garrels v. Kensington, 8 Term R. 232, 234, 244, 2 J. C. 147, 148, 454 George v. Clagett, 7 Term R. 360, 2 J. C. 328 Geyer v. Aguilar, 7 Term R. 681, 1 J. C. 344 2 J. C. 147, 150. Gibson v. Brook, Cro, Eliz. 859, 1 J. C. 277 Gibson v. Hunter, 2 H. Bl. 87,..- 3 J. C. 160 Gidley v. Williams, 2 Salk. 753, .. 2 J. C. 319 Giles v. Bradley, 2 J. C. 252, .... 3 J. C. 82 Glover t>. Black, 3 Burr. 1394; 1 Bl.Rep.405, 2 J. C. 252 Glym v. Bank of England, 2 Ves. 42, 1 J. C. 500 Goddard v. Vanderheyden, 2 Wm. Bl. 794; 2 Wills. 269, 271, .. 1 J. C. 75 Godfrey ^.Turner, 1 Vern. 247,.- 1 J. C. 423 Goix v. Knox, 1 J. C. 337; 1 J. C. 351, 2 J. C. 78, 150 Goix . Low, 1 J. C. 341 : U. C. 362, 2 J. C. 130, 142, 177, 192, 452 Gold v. Death, Cro. Jac. 381 ; 3 Bust. 55; Hob, 92, 3 J. C. 229, 232 Golden v. Manning & Peyton, 3 Wils. 439, 2 J. C. 373 Goldsmith v. Baynard, 2 Wils. 231, 232, 2 J. C. 103 Goodall v. Dolley, 1 Term R. 714,.--. - -. 2 J. C. 2 Goodman v. Goodwright, 12 Bl. Rep. 190, -- 3J. C. 25 Goodtitle v. Herbert, 4 Term R. 680, U. C. 48 Goodtitle v. Petto, Str. 934. 2 J. C. 398 Goodtitle ex dem. v. Bailey, Cowp. 599, 1 J. C. 402 Goodtitle ex dem. Estwick,.Way, ITermR. 737, . 2 J. C. 325 Goodtitle ex dem. Hord, v. Stokes, Sayer, 67; 1 Wils. 341, 2 J. C, 389 Goodtitle ex dem. Jones, v. Jones, 7 Term R. 43, 47, 2 J. C. 325 Goodright v. Caton, Doug. 486, . . 1 J. C. 126 Goodwin v. Crowle, Cowp. 357,. 2 J. C. 406 Goodright v. Pullyn, 2 L'd Raym. 1437; 2 Str. 731,.-. 2 J. C. 390, 392, 395 Goodwin . Gibbons, 4 Burr. 2108, 3 J. C. 213 Goreerat v. M'Carty, 2 Dall. 146, 3 J. C. 264 Goss v. Withers, 2 Burr. 683, 696, 1 J. C. 296, 300; 2 J. C. 264 Governors,&c. of Hospital . Swan, 5Bro. P. C. 454, 1 J. C. 498, 507 Graham v. Stampter, 2 Vern. 146, - 1 J. C. 493, 503 Grant v. Parkinson, Park. 267; Millar, 261, 3 J. C. 44 Grant v. Southers, 6 Mod. 183,.. 2 J. C. 8, 12 Grant v. Vaughan, 3 Burr. 1516; 1 Bl. Rep. 485, .... 3 J. C. 6, 8, 260, 263 Grantham v. Gordon, 1 P. Wms. 612,... 2 J. C. 270, 271 Green v. Waller, 2 L'd Raym. 893, 1 J. C. 18 2 J. C. 144, 456. G Green v. Watts, 1 L'd Raym. 274, Col. 95; C. &C. 98 Green . Cole, 3 Saund. 228, -... 2 J. C. 217 Griffith t>. Goodhand, T. Raym. 464... 1 J. C. 71 Groenvelt v. Burwell,! L'd Raym. 454, 468, 470; Com. Rep. 81, 2 J. C. 28 Grove v. Campbell, C. & C. 115,. C. & C. 224 Gyles D. Hall, 2 P. Wms. 378, 3 J. C. 250 Hadley t>. Clark, 8 Term R. 259, 3 J. C. 170 Hall v. Winckfield, Hob. 1 69, . ... 2 J. C. 381 Hallwood's case, 5 Co. 125, 126, a, 3 J. C. 382, 385 Hamden v. East India Co 2 J. C. 145 Hamilton v. Mendez,2 Burr.1198; Park. 359, 1 J. C. 296; 2 J. C. 140 Hankey et al. v. Smith, 3 Term R. 509, 3 J. C. 154 Hardy v. Bern, 5 Term R. 636, .. 2 J. C. 406 Harper's case, 11 Rep. 24 6.' 1 J. C. 95 Harrison v. Naylor, 3 Bro. C. C. 110, 2 J. C. 100 Hart . Buckminster, Styles. 103, 3 J. C. 176 Hart v. Johnson, 3 J. C. 322, 3 J. C. 113 Hart v. M'Intosh, Esp. Cas. 298, 299,- -. 3 J. C. 186, 190 Hawey ads. Hildreth, C. & C. 486 Harwood v. Billiard, 2 Mod. 269, 2 J. C. 396 Hatfield v. Hatfield, 3 Bro. P. C. 62, 2 J. C. 144 Hatton v. Gray, Eq.Cas. Abr. 21 pi. 10, ..- 3 J. C. 63, 65 Haughton v. Harrison, 2 Atk. 330, 2 J. C. 202 Hayes v. Warren, 2 Str. 933, C. & C. 334 Haynes . Mico, 1 Bro. C. C. 129, 2 J. C. 101 Haywood v. Whitby, 1 Burr. 228, 2 J. C. 316 Heath v. Crookshanks,- 2 Term R. 24, 3 J. C. 247 Heath . Perry, 3 Atk. 102, 2 J. C. 202 Henshaw v. Pleasance, 2 Bl. Rep. 1176, 2 J. C. 144, 456 Hercy v. Dinwoody, 4 Bro. C. C. 264-270, 2 J. C. 437 Hervey v. Hervey, Barnad. Ch. Rep. Ill, . 1 J. C. 292 Heylyn etal. fl.Adamson, 2 Burr. 674, 2 J. C. 76 Hickok . Scribner, J. C.811,. . - 3 J. C. 329 Higham v. Barf old, 3 Hob. 694, 2 J. C. 294 Hill's case, 8 S. 7; Foster, 271,. 2 J. C. 305 Hill v. Bateman, Str. 710, 2 J. C. 28, 51 Hill v. Lewis, 1 Salk. 132; 1 L'd Raym. 144, 3 J. C. 9 Hilliard v. Jennings, L'd Raym. 505; Carth. 514, 1 J. C. 166 Hinton's case, 2 Show. 247, 3 J. C. 263 Hixon v. Binns, 3 Term, 186, 2 J. C. 313 Hodgson v. Ambrose, . . . 2 J. C. 394 Hodgeson v. Bussey, 2 Atk. 90 n, 2 J. C. 392 Holdfast ex dem. Austey, v. Dows- ing, 2 Str. 1253, T 1 J. C. 166 Holmes v. Pontin, Peak. N. P. 100 1 J. C. 231 Hopkins . Hopkins, Cas. temp. Talbot, 51, 52, 2 J. C. 316 Hotchkiss . Royal Bank of Scot- land, 6 Bro. 468, 1 J. C. 498, 507 25 CITATIONS. Hookes v. Swaine, 1 Sid. 151,. .. 1 J. C. 71 Horn, John, Case of, 11 St. Sr. 288, 3 J. C. 288, 373, 401 How.Sir John,7?.Wooley,l Vent.l, 2 J. C. 103 Howard v. Casell, 6 Term R. 642, 1 J. C. 32 Howlet's case, Latch. 150, C. & C. 332 Hudson v. Hudson, Cas. temp. Talb. 127, 3 J. C. 57 Hudson T. Leighs, 1 Leon. 319,.. 2 J. C. 29 Hughes v. Cornelius, Raym. 473 ; 2 Show. 232, 242; Carth. 32; Bull. 244; Skin. 58, 1 J. C. 18; 2 J. C. 138, 139, 142, 144, 145, 152, 164, 166,455, 456, 464, 465. Hughs v. Harrys, Cro. Car. 229,. 1 J. C. 217 Hume v. Burton, Ridg. 51, 2 J. C. 307 Humphreys. Moxen, Peake, 52, 3 J.C.186, 196 Hunby v. Johnson, Cha. Rep. 243, 1 J. C. 492 Hunt, Executor, &c., v. Stokes, 4 Term R. 561, 3 J. C. 241 Hunter v. Potts, 4 Term, 185, 192, 1 J. C. 18 Hyat v. Hare, Comb. 382, 1 J. C. 406, '. 2 J. C. 375 Hyde t. Cogan, Doug. 703, 3 J. C. 18 Isack v. Clarke, 1 Roll. Rep. 132, 2 J. C. 291 Iseham v. Morrice.Bro.Car. 110, 1 J. C. 191 Irving v. Wilson, 4 Term R. 485, 3 J. C. 241 Jackson v. Monroe, 2 Bro. P. C. 415, 1 J. C. 498 Jackson ex dem. Cooder et al. v. Wood, 1 J. C. 163, 2J. C. 315 Jackson ex dem. Culverhouse v. Beach, 2 J. C. 399, 3 J. C. 120 Jackson ex dem. Fishery. Prosser, Cowp. 217, 1 J. C. 87 Jackson ex dem. Jones, v. Striker, 1 J. C. 284; C. & C. 354 Jackson ex dem..lune,v. Raymond, 1 J. C. 85, 1 J. C. 85 Jackson ex dem,. Livingston, v. Schutt, 1796, 3 J. C. 118 Jackson ex dem. Van Alen, v. Rogers, 1 J. C. 33, 1 J. C. 88 Jacobs c. Stevenson, 1 B. & P. 104, 2 J. C. 104 James r. David, 5 Term R. 141, 143, 3 J. C. 247, 251 James v. Pierce, 2 Lev. 132, 2 J. C. 7, 12, 15 James v. Pierce, 3 Hob. 453, 2 J. C. 11 James v. Semmes, 2 H. Black 213, 2 J. C. 101 James v. Trollop, Skin. 239; 2 Mod. 323, 3 J. C. 291 Jenkins v. Keymis, 1 Lev. 151,.. 1 J. C. 289 Jenkins ex dem. Yates, v. Church, Cowp. 482, 1 J. C. 38 Jennot v. Hardie, 1 Lev. 983, 2 J. C. 398 Jesus College v. Bloom, 3 Atk. 263, 2 J. C. 431 Jewson v. Read, Loft, 147, 2 J. C. 307 Johnson v. Sheddon, Burn on Ins. 166, 3 J. C.219, 220, 221 Jollifl c. Morris, 1 B. & P. 38, .. 2 J. C. 105 Jones r. Bever's case, Kelynge, 52, 2 J. C. 806 Jones *. Barkley, Doug. 694, 3 J. C. 251 Jones v. Bow, Carth. 225 2 J. C. 143, 456 Jones v. Hake, 2 J. C. 60, 3 J. C 209 2(5 Jones is. Hamond, Lutw. 124, 2 J. C. 217 Jones t>. Schmoll, 1 Term R. 130 n,.... 1 J. C. 301 Jordaine v. Lashbrook,7 Term R. 601, 604, 3 J. C. 186, 190, 196 Judah v. Kemp, 2 J. C. 411, .... 3 J. C. 251 Juhelfl. United Ins. Co., Oct., 1801, C. & C. 330 Kaines v. Knightly, Skin. 54, 3 J. C. 4 Kelly t>. Harrison, 2 J. C. 29, 1 3 J. C. Ill, 113, 119, 122 Kent v. Bridgman, Prec. in Ch. 233, 1 J. C. 493, 503 Kewley . Ryan, 2 H. Bl. 343, 1 J C 195 197 Key v. Briggs, Skin. 282, 2 J. c! 10 Kind 0. Regis, Doug. 134, C. & C. 338 King v. Burks, 7 Term R. 4, . 3 J. C. 385, 398 King v. Bagshaw, 7 Term R. 363, 3 J. C. 108 King r>. Burchell, Amb. 379,. 2 J. C. 389, 395 King v. Jane D. 1 Vent. 69, 2 J. C. 305 King t>. Jeff, Str. 984, 2 J. C. 304 King t>. Jones, 2 L'd Raym. 1527, 3 J. C. 155 King v. Lord Abingdon, 1 Esp. Cas. 228, 3 J. C. 364 King D. Mawbey, 6 Term R. 638, 2 J. C. 307 King v. Melling, 1 Vent. 214, 225, 230; 2 Lev. 59, 2 J. C. 392, 395 King v. Morris, Str. 901, 3 J. C. 266 King v. New College, 2 Lev. 14, . 2 J. C. 143, 456 King v. Nicolls, Stra. 1227, 2 J. C. 310 King v. Owen, 10 St. Tr. App. 194,.. . 3 J. C. 407 King v. Peppet, 1 Term R. 235, 2 J C 55 57 King "! "Read," 1 Lev." 9," ........ ' 2 J. C.' 307 King v. Kainsbury, 4rTerm R. 451, 2 J. C. 348 Kings. Saunders, 3 J. C. 397 King v. Scott & Hames, 3 Burr. 1262, 2 J. C. 311 King v. Seawood, 2 L'd Raym. 1472, 2 J. C. 337 King t>. Smith, T.Jones, 163, .... 2 J. C. 307 King v. Turneth, 1 Mod. 26: 2 Hob. 583 ; 1 Vent. 60, 3 J. C. 266 King t>. Wilkes, 4 Burr. 2527, . _ _ . 3 J. C. 407 King . Withers, 3 Term R. 428, 429, note,.. 3 J. C. 364, 365, 371, 373, 374 King a. Woodfall, 5 Burr. 2661,. 3 J. C. 407 King D. Wright, 8 Term R. 297, 298, 3 J. C. 379 King v. Wright, 1 Vent. 209,.. 2 J. C. 11, 15 Kinlock's case, Foster, 22, 27, 28, v 32, 33, 34,40... 2 J. C. 303. 305 Kirby v. Coles, Cro. Eliz. 137, C. & C. 332 Knight's case, 2 L'd Raym. 1014, Col. 95; C. &C. 98 Knotsford v. Gardiner, 2 Atk. 450, ... 1 J. C. 500 Kunckle v. Wynick, 1 Dall. 307,. 2 J. C. 19 Ladd . Garrod, 1 Lutw. 665, 3 J. C. 229 Lade v. Holford, Bull. N. P. 110, 2 J. C. 324 Lake v. Hutton, Hob. 252, 3 J. C. 381, 396, 397 CITATIONS. Lamb r>. Archer, Comb. 209, Col. 56; C. &C. 62 Laing v. The United Ins. Co. 2 J. C. 174, 2J. C. 481 Rangdon v. African Co.,Prec. in Cha. 221, 1 J. C. 492, 503 Lanning v. Levering, Cro. Eliz. 916; 1 J. C. 71 Lapiere v. Germain, 2 L'd Raym. 859, -. 2 J. C. 337 Laughter's case, 5 Co. 22 b, U. C. 70 Lavabre v. Wilson, Park. 114, 116, 1 J. C. 227 LeCaux v. Eden, Doug. 610, 614, 615,617,.- -. U. C. 18 Lechmere v. Earl of Carlisle, 3 P. Wms. 215, U. C. 84 Lee v. Fydge, Cro. Jac. 488, .... 3 J. C. 230 Leery v. Goodson, 4 Term R. 687 2 J. C. 55 Legh . Legh, 1 B. & P. 447, 2 J. C. 260 LeGrafts v. Hughes, Park. 259; Millar, 226, - 3 J. C. 44 LeGuen v. Gouverneur, 1 J. C. 436, 2 J. C. 156 Leighton v. Sir Edward Leigh- ton, 1 P. Wms. 673, U. C. 507 Lenthal . Cook, 2 Keb. 422; 1 Sid. 383; 1 Saund. 161; Salk. 438; Hardw. 464, 2 J. C. 244 Lenthal v. Lenthal, 2 Lev. 109, 2 J. C. 8, 12, 15 Lepping v. Kedgewin, 1 Mod. 207,-.- -. 2 J. C. 217 LeRoy et al. v. Gouverneur, 1 J. C. 226, 2 J. C. 247 LeRoy et al. w.Veeder et al. 1 J.C. 417, 1 J. C. 432 Lesebure v. Worden, 2 Ves. 56, 1 J.C. 500, 507 Lewis v. Baker, Barnad. Ch. Rep. 100, 1 J. C. 507 Lewis et al. . Rucker, 2 Burr. 1167, 1169, 2 J.C. 300; 3 J. C. 218, 220, 221, 222. Leyfield . Hillary, 10 Co. 93,.-- 2 J. C. 491 Lickbarrow 0. Mason, 2 Term R. 63; 2 H. Bl. 211, C.& C. 335; 1 J. C. 211 Lilburne's case, 2 St. Sr. 69, 81, 82, 3 J. C. 369 Linacreand Rhodes's case,2 Leon. 96, 2 J. C. 10 Lisle's Lessee v. Harding, Bull. N. P. 104, 2J. C. 355 Lisle v. Gray, Jones, 114; T. Raym. 31 5 ; 2 Lev. 223, 2 J. C. 387 ; 3 J. C. 22, 26. Little v. Heaton, 2 L'd Raym. 750, 1 J. C. 126 Livingston v. Clinton, July, 1799, 3 J. C. '-64 Loekyer et al. v. Offley, 1 Term R. 252, 3J. C. 17, 35 Loekyer v. Simpson, Moseley, 300,.--- 2 J. C. 101 Lodge v. Phelps, 1 J. C. 139, 2 J. C. 369 Long v. Blackall, 7 Term Rep. 102, 3 J.C. 25 Long i). Laming, 2 Burr. 1100, .. 2J. C. 392, 394 Loomis & Tillinghast . Shaw, . . 2 J. C. 36; 3 J. C. 43, 46 Louviere v. Lanbray, 10 Mod. 37, 1 J. C. 59 Lowe ". Davies, 2 L'd Raym. 1561, 3J. C. 22, 26 Lowe v. Jolliffe, 1 Bl.Rep. 365, -- 3 J. C. 191 Lowe v. Peers, 4 Burr. 2228, 3 J. C. 298 Lowry v. Bourdiee, Doug. 468, 2 J C 333 334 Lowry v. Lawrence, C. & C. 76,- C. & C.' 476 Lucas 0. Marsh, Barnes, 453, 3 J. C. 153 Lucy v. Levinston, 1 Vent. 175; 2 Keb. 831, 2 J.C. 21 Luddington . Kime, 1 L'd Raym. 203,-.-. 3J.C.21, 26 Luke v. Lyde, 2 Burr. 882, 887, 1 J. C. 381, 383, 388; 3 J. C. 98, 99 Ludlow v. Dale, 1 J. C. 16, 1 J. C. 342, 344, 353; 2 J. C. 130, 142, 177, 192. Lutterill v. Reynell, 1 Mod. 283,. 3 J. C. 191 Lyddall v. Dunlap, 1 Wils. 4, 2 J. C. 19 Lynch v. Clerke, 3 Salk. 154,--.. 3 J. C. 287 Lynn . Bruce, 2 H. Bl. 318, 319, 3 J. C. 256 M MacFerson w.Thoytes, Peake's N. P. 21, 2 J. C. 214 Machen v. Delaval, Barnes Cas. 52, 277, 2 J. C. 260, 280 Mackareth v. Pollard, 1 Lord Raym. 80, 1 J. C. 20 Maddock v. Hammet, 7 Durn. & E. 56, C. &C. 336 Mansell's case, 21 Vin. 478, 2 J. C. 307 Man-lot 0. Hampton, 7 Term R. 269, _ 1 J. C. 492, 502 Marsham . Buller, 2 Roll. Rep. 21, C. & C. 431 Martin fl.'Blithman, Yelv. 197, -- 2 J. C. 245 Martin v. Kesterton, 2 Bl. Rep. 1093, 2 J. C. 104 Martin v. Moore, Str. 922, 2 J. C. 341 Martin ex dem. Weston, v. Mow- lin, 2 Burr. 978, 979, 2 J. C. 330 Martin v. O'Hara, Cowp. 823, 824, 2 J. C. 404 Maryatt v. Wilson, 1 Bos. & P. 430, 2 J. C. 485 Masters et al. v. Miller, 4 Term R. 341, 1 J. C. 52; 2 J. C. 260 Mathews . Phillips, Salk. 424, Col. 39; C. &C. 44 Mayne v. Walter, Park. 195, 431, 730, 1 J. C. 18, 349, 358, 365 Mayor of Kingston v. Horner, Cowp. 102,111, 3J. C. 118 Mayor of Norwich v. Berry, 4 Burr. 2113, 2 J. C. 103 Mayor of Norwich v. Johnson, 3 Mod. 91, 92, 1 J. C. 87 Mead v. Lord Orrery, 3 Atk. 238, 239, 3 J. C. 319, 320 Medcalf's case, 11 Co. Col. 118 Megit i). Johnson, Doug. 544, 2 J. C. 140 Melan .Duke deFitzjames.l Bos. & Pull. 141, 142, 1 J. C. 140; 2 J. C. 369 Menville's case, 13 Co. 21, 2 J. C. 29 Messenger v. Armstrong, 1 Term R."53, 1 J. C. 45 Metcalf v. Hervey, 1 Ves. 248, .. . 1 J. C. 423 2G-1 xxviii CITATIONS. Middlewood c. Blakes, 7 Term R 162, 1 J- C. 196, 197, 198 Mikhell *. Oldfield, 4 Burn. & E. 123, C. &C. 489 Mildraay's case, 1 Co. 175, 176 a, 1 J. C. 95, 1 J. C. 396 Millar v. Turner, 1 Vesey,86, 3 J. C. 28 Miller t>. DePeyster, . C. & C. 330 Miller v. Scare, 2 Bl. Rep. 1145, . . 2 J. C. 28 Millener v. Robinson, Moore, 682, 1 J. C. 233 Milles t>. Fletcher, Doug. 219; Park. 342, 1 J. C. 300, 301, 303 Mitchell's case, Fost. 19, 2 J. C. 343 Mitchell v. Edie, 1 Term R. 615, 2 J. C. 300 Mitchell v. Oldfield> 4 Dura. & E. 123, C. &C. 368 Monckton v. Pashley, 2 Salk. 639: 2 L'd Raym. 975, 977, 2 J. C. 29 Monk v. Cooper, 2 Str. 763,.-,.-- 1 J. C. 69 Morgan v. Jones, 1 Bro. P. C. 57, 58, 1J. C. 498, 507, 523 Morris v. Barry. 1 Wils. 1, 1J. C. 233 Morris, exdem. Andrews, fl.LeGay & Wood, 2 Burr. 1102,...-- 2 J. C. 390 Moses . McFerlan. 2 Burr. 1009, 1 J.C. 492, 502 Motteux . London Assurance, 1 Atk. 545, 548,.. 3 J. C. 281 Mounson v. Boiirn, Cro. Car. 519, 527, 1 J. C. 277 Mumford v. Church, 1 J. C. 147, 151,. 1 J. C. 152; 2 J. C. 263; 3 J. C. 293 Munt v. Stokes, .4 Term R. 260 2 T C 55 Murray \. Wilson, 1 Wils. 316,.. 2 J. C. 382 Mylock v. Saladine, 3 Burr. 1564, 2 J. C. 336 N Naylor . Taylor, Park. 361,362,. 2 J. C. 140 Newnham v. Law, 5 Durn & E. 577,. C. 62; C. & C. 67; 1J. C. 29 Newland t>. Horseman, 1 Vern. 21 ; 2 Ch. Cas. 74, 2 J. C. 137, 145, 455 Nicholas v. Chamberlain, Cro. Jac. I'" 1 ! 1 J C 292 NichollsV."Raynbred,~Hob~~88,-- C. & C. 332 Norris v. Leneve, 3 Atk. 35, 1 J.C.496,502,503 North v. Earl of Strafford, 3 P. Wms. 150, 1J. C. 434 O Gates ex dem. Wigfal v. Brydon, 3 Burr. 1897, 1 J. C. 126 Oldnoll's case, Dyer, 155, 3 J. C. 384, 399 Oneby'a case, 2 L'd Raym. 1485; 2 St. Tr.766, 3 J. C. 371 Onslow u.Horne, 3 Wils. 105, C. & C. 335 Orby c. Trigg, 9 Mod. 2, 3 J. C. 63, 65 Ormond v. Bierly.Carth. 519; 1 J. C. 24 Osborn v. Carden & Joy, Plowd. 293, 1 J. C. 218 Osborn v. Haddock, Barnes, 257, .... Col. 95; C. &C. 98 Osborn v. Steward, 3 Mod. 231,.. 2 J. C. 143 Owen's case, 10 St. Tr. App'x, 196,. 3 J. C. 373 Owenson v. Morse, 7 Term R. 66, 3 J. C. 72 Oymchund v. Barker, 1 Atk. 49, . 2 J. C. 145 26-2 Page's case, 5 Co. 53,.. 1 J. C. 401 Paine v. Martin, 2 Str. 573, 3 J. C. 247 Palmer v. Ekins, 2 L'd Raym. 1551, 1 J. C. 91 Palmer v. Green (1 779), C. & C. 493 Palmer c. Mason, 1 Atk. 505, 2 J. C. 202, 203 Palmer v. Williams, Barnes, 130, 2 J. C. 261 Papillon v. Voice, 2 P. Wms. 476, 3 J. C. 26 Parker v. Harris, 1 Anst. 180, 183: 1 Salk. 262, 1 J. C. 523 Parker . Parker, Hob. 76, C. & C. 33& Parker v. Wells, 1 Durn. & E. 783, C. & C. 336- Parsons . Loyd, 3 Wils. 346, ... 2 J. C. 50- Parsons v. Briddock, 2 Vern. 608, 2J. C. 230 Patridge . Strange, Plowd. 88, .. 3 J. C. 104 Paul v. Jones, 1 Term R. 599,. .. 1 J. C. 75 Pawsnn v. Watson, Cowp. 785, .. 1 J. C. 351 Peacocks *. Rhodes, Doug. 636, . 3 J. C. 263 Peak v. Oldham, Cowp. 276,..., C. & C. 335 Pearson v. Otway, 2 Wils. 6, 2 J. C. 398 Pearson v. Parkins, Bull. N. P. 310, C. &C. 494 Pemberton . Shelton, Cro. Jac. 498, 2 J. C. 18 People r. Denton, 2 J. C. 275,. .. 2 J. C. 302 People . Freer, C. & C. 300, C. & C. 411 People v. General Sessions of Che- nango Co. 1 J. C. 179, 3 J. C. 267 People v. Judges of Common Pleas, 1 Cai. 511, .: C. & C. 362 People v. Shaw, 1 Cai. 125, C. & C. 365 Percival v. Jones, 2 J. C. 49,... 3 J. C. 85, 86 Perkins v. Proctor, 2 Wils. 385, 386,.... 2 J. C. 51 Pen-in . Blake, 2 J. C. 395 Pettit 0. Carman, 2 J. C. 381 Peyton's case, 9 Co. 79 b, ... 3 J. C. 251, 256 Phetheon . Whitmore, Peake, 40,.. 3 J. C. 186, 196 Phillips v. Berry (or Bury), Carth. 319; Skin. 493, 514; 1 Salk. 403; 1 L'd Raym. 10, C. & C. 335. 336' 2 J C 143 Philips P. Carew, 1 P. Wms. 117, 1 J. C. 433 Phillips v. Crawly, Freeman, 84, 2 J. C. 142, 143, 456 Phipps v. Earl of Anglesa, 3 Vin. 209 pi. 8, 2 J. C. 359 Phipps v. Stone, 2 Leon. 118, 2 J. C. 10; 3 J.C. 74 Piggot, ex dem. Lee, v. Earl of Sal- isbury, 2 Mod. 115, 1 J. C. 91 Pike v. Hassen, 3 Lev. 233, 1 J. C. 47, 88 Pilford's case, 10 Co. 116, 2 J. C. 104 Pillans v. Van Mierop, 3 Burr. 1671, C. &C. 334; 3 J. C. 31 Finder v. Morris, C. & C. 490 Pinkney . Collins. 1 D. & E. 571, C. &C. 399 Pinkney v. Hall, 1 L'd Raym. 175, 1 J. C. 54 Pitsligo's case, Fost. 79, 80, 81, 83, 84, 87, 89 2 J. C. 270, 271 Plantamour ^.Staples. 1 T. R. 611 n. a, 1 J. C. 295 Plunket v. Kingsland, 4 Bro. P. C. 575, 582, 1 J. C. 498, 507 Plunket v. Penson, 2 Alk. 51,... 3 J. C. 317 CITATIONS. Pole v. Fitzgerald, Willes's Rep. 647, 1 J. C. 309 Pollard v. Bell, 8 Term R, 444, 2 J. C. 454 Pope ^Foster, 4 Term R. 590,.. 2 J. C. 55 Popham v. Bamfield, 1 P. Wms. 54, 59, note; Salk. 236; 2 Vern. 427, ;. 3 J. C. 22, 26 Porrier . Carter, 1 H. Bl. 106... 2 J. C. 109 Porter's case, 1 Co. 18 a, 1 J. C. 289 Portsmouth Lord, v. Lord Effing- ham, 1 Vez. 434, 1J. C. 496, 502 Post v. Wright, C. & C. 183,.... C. & C. 427 Powell v. Hankey, 2 P. Wms. 82, 3 J. C. 63, 65 Power v. Wells, Cowp. 818, 2 J. C. 254 Powsley v. Blackman, Palm. 205; Cro. Jac. 659, 1 J. C. 37, 44, 87 Preston v. Cresmas, 2 Wils. 86, .. 3 J. C. 247 Price v. James, 2 Bro. Ch. R. 319, -. 1 J. C. 423 Prince v. Heylin, 1 Atk. 494, . 2 J. C. 436, 437 Proctor. Johnson, Salk. 600,... 1 J. C. 87 Prudham v. Phillips, Amb. 762, 763, . . . - 2 J. C. 139, 142, 143, 144, 456 Prynn v. Edwards, 1 L'd Raym. 47,..' 2 J. C. 313 Putland v. Burrows, 3 Bro. P. C. 180,... 1 J. C. 498 Quackenbos . Dennis, Col. 50 Queen v. Bedford, Str. 189, 3 J. C. 392 Queen v. Brown, 11 Mod. 86, 3 J. C. 371 Queen . Page, 5 Co. 53, 3 J. C. 112, 121 R Ramsden v. Jackson, 1 Atk. 293, 294, 1 J. C. 278, 493, 503 Randolph . Brockman, 7 Bro. 1, 1 J. C. 498 Rannesey v. Parot, 1 Ch. Cas. 60, 2 J C. 202 Ratcliffe's case, Fost. 41, 2 J. C. 296 Ratcliffe v. Davis, Cro. Jac. 245,. 3 J. C. 251 Ravenscraft v. Eyles, 2 Willis, 294, 2 J. C. 9, 11 Rawlin's case, 1 Leon. 302, 2 J. C. 29 Rawlins v. Powell, 1 P. Wms. 299, 2 J. C. 101 Ray's case, Cro. Eliz. 878, 2 J. C. 316 Read v. Brookman, 3 Term R. 151, 155, 157, 158, 159, 2 J. C. 493, 496; 3 J. C. 114, 118. Read v. Dupper, 6 Durn. & E. 361, C. &C. 489 Read v. Jones, Lutw. 166, 2 J. C. 217 Reeve v. Long, 1 Salk. 228, 3 J. C. 22, 24, 26, 27 Regina v. Bedford, Gilb. Rep. K. B.297, 3 J. C. 392 Regina v. Smith, 2 L'd Raym. 1144, 1 J. C. 20 Reilly . Ward, 1 Bro. P. C. 578, 1 J. C. 523 Reniger v. Fogossa, Plowd. 5, 11, 3 J. C. 246 Rex v. Baillie, Esp. Dig. 506, 3 J. C. 380 Rex v. Bennet, Say. 169, C. & C. 497 Rex v. Croke, Cowp. 26, 3 J. C. 108 Rex v. Crosby, Bull. N. P. 236,. . 2 J. C. 214 Rex v. Griffith, Sayer, 253, 2 J. C. 261 R Rex v. Harris, 3 Burr. 1330, 1335, Col. 128; C. & C. 129; 2 J. C. 261 Rex v. Home, Cowp. 682, 687, ---. 2 J. C. 339; 3 J. C. 203 Rex v. Manning, 1 Burr. 377, 3 J. C. 108 Rex v. Mayor, &c. of Liverpool, 4 Burr. 2244, 3 J. C. 108 Rex v. North, 2 Salk. 565, C. & C. 440 Rex . Segar, Comb. 401, 2 J. C. 306 Rex. Whitear, 3 Burr. 1366,... 1 J. C: 20 Reynel's case, 9 Rep. 95 a, C. & C. 298 Reynolds v. Beering, 3 Term R. 188, note; Doug. 112, note, 3 J. C. 152, 154 Rice v. Shute, 5 Burr. 2617, 2 J. C. 383 Rich D. Parker, 7 Term R. 705, .. 1 J. C. 344 Rich v. Topping, Peake, 224; 1 Esp. Rep. 176, 3 J. C. 186, 190 Ridges v. Morrison, 1 Bro. C. C. 391, 2 J. C. 101 Rigeway's case, 3 Co. 52, 56, .. 2 J. C. 11, 14 Right to. Darbey & Bristow, 1 Term R. 159, 1 J. C. 45 Right, ex dem. Basset, . Thomas, 3 Burr. 1446, 2 J. C. 397 Risley v. Haines, Poph. 209, 2 J. C. 18 Roach . Garvan, 1 Vez. 159, 2 J. C. 135, 145 Roberta's case, Kelynge, 26, 2 J. C. 306 Robertson v. Ewer, 1 Term R. 127, 1 J. C. 302 Robertson D. Stallenge, 7 Co. 43 * 2 J. C. 143 Robinson v. Aunts, 1 Sid. 48, 1 J. C. 71 Robinson v. Bland, 1 Bl. Rep. 237, 238, 258, 1 J. C. 140 Robinson . Bland, 2 Burr. 1078, 2 J.C. 366, 367 Robinson v. Gee, 1 Ves. 251, 2 J. C. 230 Robinson v. Hicks, 3 Bro. 180, .,.. 1 J. C. 498, 507 Rock v. Leighton, Salk. 310; 1 L'd Raym. 589, 1 J. C. 277, 278 Rodgers v. Mayhoe, Garth. 1, ... 2 J. C. 313 Roe v. Quaitly, 1 Term R. 634,.. 3 J. C. 23 Roe ex dem. Bree v. Lees, 2 Bl. Rep. 1172, 1 J. C. 38 Roe ex dem. Reade v. Reade, 8 Term R. 122, 2 J. C. 324, 325 Roles 0. Rosewell,5 Term R. 538, 536-540, . 2 J. C. 406 Rolleston v. Smith, 4 Term R. 161, 2 J. C. 144 Roll's case, Yelv. 218, 2 J. C. 382 Ross v. Hunter, 4 Term R. 34,... 1 J. C. 57 Rous v. Artois, 2 Lev. 45, 1 J. C. 47, 86 Rous v. Barker, 3 Bro. P. C. 183, 186, 1 J. C. 507 Routh v. Weddell, 2 Lutw. 1664, 2 J. C. 102 Rowland Veale, Cowp. 19, 1 J. C. 20 Rowley v. Raphson, Skin. 590,.. 2 J. C. 313 Rudge 9. Birch, 1 J. C. 57 S Sadler's case, 4 Co. 59, b, 3 J. C. 367 Sadock v. Burton, Yelv. 202 1 J. C. 503 Saidler & Craig v. Church, 3 J. C. 45 St. Legar v. Adams, 1 L'd Raym. 731,. 3 J. C. 292 Saloucci v. Johnson, Park. 79, 169, 1 J. C. 349, 358; 2 J. C. 64 26-3 CITATIONS. s Saloucci v. Woodmason, Park. 528; 7 Term R. 705, 1 J.C. 342, 358; 2 J. C. 147. Saltern t>. Melhuish, Amb. 247,.. 2 J. C. 492 Saunders v. Freeman, Plowd. 209 2 J. C. 217 Saunders v. Owen, Salk. 467, .... 1 J. C. 290 Savage v. Foster, 9 Mod. 38, .... U. C. 128 Savage gui tarn . Smith, 2 Bl. ftep. 1101, --- 2 J. C. 54, 57 Scott v. Fenhoullet, 2 Bro. C. C. 69 2 J. C. 202 Scott P. Godwin, 1 Bos. & P. 66, 2 J. C. 383 Scott v. Sheaman, 2 Bl. Rep.977, 2 J. C. 139, 144, 456 Scribblehiii . Brett, 1 Bro. P. C. 57 1J. C. 498, 507 Seaman t>. Raskins, 2 J. C. 411, .. 3 J. C. 301 Seton v. Low, 1 J. C. 1, 2 J. C. 78 120, 121, 172. Seven Bishops Case, 4 St. Tr. 3 J. C. 370, 386 Shaldoe v. Ridge, Yelv. 76, C. & C. 365 Shaw v. People, C. & C. 365 Shepherd ads. Case, C. & C. 94, _ C. & C. 461, 464 Shepherd v. Lewis, Sir T. Jones, 6, 3 J. C. 251 Shelley's Case, 1 Co. 95, b. 104, 2 J. C. 387. 388, 392; 3 J. C. 26 Shelty v. Wright, Willis's Rep. Ill, 3 J. C. 176 Sheriff of Essex's case, Hob. 202, 2 J. C. 7, 11, 12 Sherley v. Earl Ferrir, 3 P. Wms. 77, 1 J. C. 433 Shoplane t>. Roydle, Cro. Jac. 98,.. 1J. C. 218 Shore n. Thomas, Noy Rep. 4,... C. & C. 431 Shudal . Jekyll, 2 Atk. 517,.... 2 J. C. 393 Sidney's case, 3 St. Sr. 817, 3 J. C. 370 Skelton t>. Bawling, 1 Wils. 358,. 1 J. C. 278 Skipwith v. Green, 8 Mod. 311, .. 1J. C. 348 Skutt v. Woodward, 1 H. Bl. 238, C. &C. 388 Slocum v. United Insurance Co. 1 J. C. 151; 2 J. C. 263 Smalley c. Kerfoot, And. 246; Str. 1094, 2 J. C. 18, 22 Smallman v. Brayne, Colic's Cas. 49, 1 J. C. 507 Smart v. Williams, Comb. 248, .. 1J. C. 231 Smart et al. v. Wolfe, 3 Term 5U), 1J. C. 18 Smartel v. Williams, Salk. 246, . . 1J. C. 88 Smith v. Barrow, 2 Term R. 476, 2 J. C. 375 Smith v. Bates & Waterbury, 1795, 2 J. C. 299 Smith v. Blackman, 1 Salk. 283,. 3 J. C. 6 Smith v. Dr. Bochier. Str. 993... 2 J. C. 28 Smith v. Chester, 1 Term R. 655, 3 J. C. 72 Smith v. Coffin, I H. Bl. 444, 2 J. C. 19 Smith v. Kendall, 6 Term R. 123, 3 J. C. 6 Smith v. Low, 1 Atk. 490, 1 J. C. 53; 2 J. C. 185 Smith u. Murray & Mumford, Jan'y Term, 1797, 1J. C. 19 Smith v. Rawlins, 2 Keb. 126, pi. 79, 3 J. C. 287 Smither v. Lewis, 1 Vern. 399, . . 2 J. C. 416 2G-4 Southcote v. Braithwaite, 1 Term R. 624 -- 2J. C. 404 Spencer v. White, C. & C. 368, 489 Spore v. Drury, Cro. Jac. 569, ... 2 J. C. 18 Spurrier v. Mayoss, 1 Vesey Jun. 527, 531 2 J. C. 358, 364 Stace v. Mabbot, 2 Ves. 554 1J. C. 500 Standish v. Radley, Atk. 178, 1 J. C. 496, 502 Stansfield v. Johnson, 1 Esp. 101, C. & C. 352 Staple v. Hayden, 6 Mod. pi. 1,.. 1 J. C. 291 Staples v. Maurice, 4 Bro. 582, 1 J. C. 598, 507 Stapleton v. Conway, 1 Ves. 427; 3 Atk. 727, .... 2 J. C. 359, 363, 465, 368 State of Georgia v. Brailsford, 3 Dall. 4, -- 3 J. C. 375 Staughton . Newcomb. Cro. Eliz. 434, 8 J. C. 205 Stedmanfl. Gooch, 1 Esp. Cas. 33 5; 3, 4, 5, 6,..-. 2 J. C. 441; 3 J. C. 72 Stedman . Page, 1 Salk. 391 ; 12 Mod. 86; 5 Mod. 141; Comb. 347, 1 J. C. 234 Stent . Bailis, 2 P. Wms. 220, .. 1 J. C. 493 Stile v. Smith, 2 Leon. Ill, C. & C. 333 Still e. Wendell, 6 Term R. 531,. 2 J. C. 299 Stockdale's case, 3 J. C. 408 Stowell v. Lord Zouch, Plowd. 375, 3 J. C. 24 Stranger v. Searle, 1 Esp. Cas. 14, 15, 2 J. C. 214 Sullivan v. Montague, Doug. 108, 3 J. C. 152, 153 Syeds D. Hay, 4 Term R. 260, 1 J. C. 407; 2 J. C. 373 Sym's case, 4 Co. 53, a. b, 1 J. C. 91 Tarlton v. Fisher, Doug. 676, 2 J. C. 50 Tassall v. Shane, Cro. Eliz. 193, 3 J. C. 247 Tassell & Lee v. Lewis, 1 L'd. Raym. 743,. 3 J. C. 8, 9 Tate v. Wellings, 3 Term R. 531, 2 J. C. 55 Taylor, ex dem. Atkins, v. Horde, 1 Burr. 60, 1 J. C. 37,43, 44,49, 95, 289; 2 J. C. 399 Taylor v. Mather, 3 Term R. 83, 1 J. C. 52, 54, 60, 62 Taylor v. Mills & Magnell, Cowp. 526, 1 J. C. 75 Taylor v. Sharp, 3 P. Wms. 371, 1 J. C. 502 Taylor . Tolwin, Latch. 194,... C. & C. 336 Teat's case, Cro. Eliz. 7, 1 J. C. 70 Tedcastle t>. Holwell, Cro. Eliz. 236, 3 J. C. 229, 232 Tempest v. Metcalf, 1 Wils. 331,. 2 J. C. 261 Thelluson v. Ferguson, Doug. 346, 1 J. C. 197 Thellusson v. Woodford, 4 Ves. Jun. 241, 242, 322, 325, 334, 335,.... 3 J. C. 28 Thompson v. Shirley & Body, 1 Esp. Cas. 31, 1 J. C. 407 Thornel . Lassels, Cro. Jac. 27, . 3 J. C. 205 Thrale v. Cornwall, 1 Wils. 165,. 2 J. C. 336 Thursby v. Plant, 1 Sid. 402, 2 J. C. 19 Thynne v. Earl of Pembroke, Dyer, 106, 8 J. C. 24 CITATIONS. Tilney . Norris, Salk. 309, 2 J. C. 19 Tilly Mil v. Wharton, 2 Vern. 378,. 1 J. C. 493 Tindal v. Brown, 1 Term R. 170, 171, 3J. C. 213 Towers v. Barrett, 1 Term R. 132, 133, 2 J. C. 254; 3 J. C. 82 Townsend v. Hughes, 2 Mod. 1551, 1552,.... 3 J. C. 384 Tracy v. Cheshue, 2 Keb. 239,__- 3 J. C. 230 Trelawney v. Thomas, 1 H. Bl. 303, C. &C. 365 Trevillian v. Andrew, 5 Mod. 384, 1 J. C. 88 Trevivan v. Lawrence, 6 Mod. 258; 1 Salk. 276, 1J. C. 91 Tuchin's case, 5 St. Tr. 542,. 3 J. C. 370, 406 Tyril v. Fletcher, Cowp. 666; Doug. 566, 3 J. C. 274 U United Insurance Co. v. Lenox, 1J. C. 377, 3J. C. 43 Vandenheuvel v. Church, - J. C. 188 , 185, 188 133, 134 J. C. 75 & C. 392 Vandenheuvel v- The United Ins. Co. 2 J. C. 127,--.- 2J. C. 176 Vandenheuvel v. The United Ins. Co. 2J. C. 451, 3J. C Vanderheydcn 0.DePaiba,2 Wils. 530, 1 Van Home v. Petrie, C. & C. 390, C. Van Nuys v. Terhune, 3 J. C. 82, 3 J. C. 190, 237 Van Schaick v. King (Ct. of Errors), C. & C. 298 Varelst. Rafael, Cowp. 325, C. & C. 388 Vasse v. Ball, 2 Dall. 51, 194,195, 270, 2 J. C. 140, 458 Venable v. Foyle, 1 Ch. Cas. 2, 3, 3 J. C. 317, 320 Vick v. Edwards, 3 P. Wms. 373, 1J. C. 91 Villers o. Monsley, 2 Wils. 403,.. 3 J. C. 364 Villiers v. Villiers, 2 Atk. 71 2 J. C. 492 Vintner v. Allen, Carter, 212, 3 J. C. 74 Viscount of Essex's case, 1 1 Vin. 26, pl.8,_ 2J. C. 7 W Wagoner v. Fish, 8 Co. 121, 2 J. C. 28 Walcott 0. Goulding, 8 Term R. 127, 2 J. C. 406 Wallcot v. Dillon, 1 Lill. Ent. 243, C. &C. 336 Walker v. Constable, 1 Bos. & P. 307, C. &C. 352 Walker v. Snow, Palmer, 359, 2 J. C. 387; 3 J. C. 26 Walker v. Witter, Doug. 1, 5, - 1 J. C. 345; 2 J. C. 466 Walton v. Shelly, 1 Term R. 296, 3 J. C. 186, 189, 190, 191, 194 Wallace v. Delancey, 7 Term R. 266, note, 1 J. C. 230, 231 Wamsley . Child, 1 Ves. 345,-. _ 1 J. C. 423 Want's case, Moore, 627, 3 J. C. 397 Ward v. Snell, 1 H. Bl. 11, 12, .. 2 J. C. 104 W Watts v. Cresswell, 9 Vin. Abr. 415, 1 J. C. 128 Way v. Modigliani, 2 Term R. 30, 1 J. C. 194, 195 Webb v. Claverdon, 2 Atk, 424,-. 3 J. C. 236 Webb v. Fox, 7 Term R. 398, U. C. 401 ; 3 J. C. 113, 121 Webster v. Scales, 1 J. C. 57 Weeden v. Lea, 3 Term R. 41,.. 2 J. C. 316 Welsh v. Hole, Doug. 238, C. & C. 489 Weston v. Downes, Doug. 23, 2 J. C. 254; 3 J. C. 82 Wey v. Tally, 6 Mod. 194, 2 J. C. 336 Wheatley v. Stone, Hob. 322, U. C. 218 Whistler v. Webb, Bunb. 53, 3 J. C. 319 Whitacres v. Onsley, Dyer, 322, . 2 J. C. 12 Whitchuch v. Golding, 2 P. Wms. 541, 1 J. C. 423 White v. Lightburne, 2 Bro. P. C. 405, 415, 1 J. C. 498, 507 Whiting fl.Sir G. Reynal.Cro.Jac. 657, 3 J. C. 74 Whiting v. Wilkins, Bulst. 219,.. 2 J. C. 395 Wicket v. Creamer, 1 L'd Raym 439; 1 Salk. 264, 2 J. C. 262 Wickham v. Taylor, Sir T. Jones, 168, 3 J. C. 246, 251 Wilks 0. Back, C. & C. 354 Wilkes v. Lenson, Dyer, 169, a, . . 3 J. C. 176 Wilkinson v. Coverdale, Park. 303, 1 J. C. 504 Williams's case, 1 Leach, 134, .... 2 J. C. 343 Williams v. Lee, 3 Atk. 223, 224, U. C. 492, 503 Williams v. Roberts, Noy. 7, 1 J. C. 277 Willis v. Jermine, 2 Leo. 97, .. 1 J. C. 47, 88 Willis .Whitewoods, 1 Leo. 312, 1 J. C. 218 Willoughby v. Brook, Cro. Eliz. 756, 757, 3 J. C. 176 Wilson et al. v. Smith, 3 Burr. 1550, 1 J. C. 227 Wimple v. M'Dougal, C. & C. 55, C. & C. 410 Winch v. Keeley, 1 Term R. 619; U. C. 52, 57, 63, 2J.C.260 Wishon v. Clayton, 1 Lev. 156,.. 2 J. C. 398 Wither's case, 3 Term R. 428, ... 3 J. 0. 408 Wood v. Bevil (1801), ' C. & C. 383 Wood v. Drury, 1 L'd Raym. 734, 1 J. C. 231 Woodf all's case, 5 Burr. 2661, ... 3 J. C. 373 Woodford v. Deacon, Cro. Jac. 206, C. &C. 336 Woodwprth v. Dole, 2 J. C. 59 Wooldridge v. Boydell, Doug. 16, 1 J. C. 194, 195 Wooley 0. Cobb, 1 Burr. 244, . ... 2 J. C. 404 Worseley v. Demattos, 1 Burr. 480, 482 1 J. C. 493 Wortley v. Birkhead, 2 Ves. 576, 1 J. C. 496 Wrenham's case, Hob. 227, 3 J. C. 367 Wright v. Anthony (1802), C. & C. 387 Wright v. Pearson, 2 J. C. 395 Wright v. Reed, 3 Term R. 554, . 3 J. C. 250 Wright v. Russell, 3 Wils. 530,-- 3 J. C. 59 Wright v. Sherrard, 1 Keb. 877, pi. 27, 3 J. C. 287 Wych if it shall be entered in the vacation. XI. That where any writ, returnable in this court, shall not have been returned on the day of the return thereof, the party who may have sued out such writ, may then take out a rule against the officer or person required to make return of such writ, to return the same within twenty days after service of notice of the rule, or that an attachment will be issued against him; and if the writ shall not thereupon be re- turned, the party taking the rule may at any time after the expiration thereof, and on filing an affidavit of service of notice thereof, have the default of the officer or person in not re- turning the writ, entered, and may at any time thereafter, and without waiting until the term after the default shall be entered, take out an attachment of course. XII. That no private agreement or consent between the parties, in respect to the proceed- ings in the cause, shall be alleged or suggested by either of them against the other, unless the same shall have been reduced to the form of a rule by consent, and entered accordingly in the book for entering common rules, or unless the evidence thereof shall be in writing, subscribed *by the party against whom it shall be so [*1O alleged or suggested. XIII. That if the want of an original bill shall be assigned for error on a judgment had in this court, upon confession, nil dicit, or non sum informatus, the plaintiff in this court may file an original bill as of course, and nunc pro tune, as of the term when the suit was com- menced. XIV. That no issues shall be tried at the bar of the court after the first week in term, unless by special leave of the court, for that purpose obtained. OCTOBETERV, 1797. ARDERED. I. That no person shall here- by after be admitted to practice as an attorney of this court unless he shall have served a reg- ular clerkship of seven years with a practicing COLEMAN 1796 RULES OF THE SUPUKME COUKT. 10 -attorney of this court; but any portion of time, not exceeding four years, during which a per- son, after he shall be fourteen years of age, shall have regularly pursued classical studies, - able cause for staying further proceedings until the order of the court on the motion ; and a service of a copy of the certificate, at the time of or after the service of the notice of the mo- tion, shall thenceforth stay, all further proceed- ings accordingly; but if such party shall neglect to bring on the motion to be heard during the term, then the proceedings shall not be longer stayed, and he shall moreover be liable to pay costs to the other party for not having brought on the motion according to notice. 1 1. In January Term, 1800 (Case v. Shepherd), it was decided that a party to whom a judg-e refuses an order to stay proceedings, may appeal to the court for such order ; but if no order be obtained, and judgment be entered at the time the motion is made to set aside the verdict, &c., the motion then comes too late. In Rathbone v. Comstock, February, 1806, it was decided that a motion to set aside a report of ref- erees must be made at the next term after the re- port is made. 1 Johnson, 138. It is so as to all other motions to set aside proceedings, &c., unless some sufficient excuse be shown for the delay. In January Term, 1803, it was decided that a judge who grants an order in vacation may revoke it in the same vacation ; but the court will not take it into consideration, whether the order was or was not fitly obtained. It must stand until the main question be disposed of. A judge's certificate of probable cause does not stay the proceedings unless it be accompanied with a notice of the motion. 1 Caines, 506. 8 33 15 KULES OF THE SUPREME COURT. V. That the practice of entering a rule, as- signing a day, or setting down a cause for ar- gument, shall, in future, be discontinued, and instead thereof, an argument shall always be brought on to be heard in consequence of a notice for that purpose; and every notice of a motion or argument shall be for the first day in term, or tor as early a day in term there- after as the circumstances of the case will reasonably permit; and whenever a motion or argument shall go off from day to day, it shall still be entitled to be heard on the notice, 16*] * without the necessity of a rule for en- larging the time to hear it. VI. That whenever it shall be intended to move to set aside a nonsuit or verdict, there shall, in future, instead of the report of the judge, where the same would heretofore have been requisite, be a case, to be prepared by the party intending the motion, and a copy thereof to be served on the opposite party within two days after the trial, and which opposite party may, within four days thereafter, propose amendments thereto, and serve a copy on the party who prepared the case, and who may then, within four days thereafter, serve the op- posite party with a notice to appear within convenient time, not less than four days, nor beyond the first day of the then next ensuing term, before the judge who tried the cause, to have the case and amendments corrected, and the judge shall thereupon correct the same, as he ^hall deem to consist with the truth of the facts; but if the parties shall omit within the several times above limited, unless the same shall be enlarged by a judge, or the recorder of New York, the one party to propose amend- ments, and the other to notify an appearance before the judge, they shall respectively be deemed, the fdrmer to have agreed to' the 17*] *case as prepared, and the latter to have agreed to the amendments as proposed. VII. That where there shall be a rule to show cause, or a notice of a motion or argu- ment, if the part}- on whom the rule or notice shall have been served shall not appear to show cause, or to oppose the motion, or to argue on his part, he shall be deemed to have renounced his right against the rule, motion, or judgment, claimed by the party having served the rule, or given notice; and such latter party shall thereupon be entitled to his rule, motion, or judgment equally as if the other party had ap- peared and consented thereto. 1 VIII. That every attorney residing in the city of New York shall have an agent residing in the city of Albany; and every attorney re- siding in the city of Albany shall have an agent residing in the city of New York; and all at- torneys residing elsewhere shall have two agents, the one residing in the city of New 1. In April Term, 1799, it was decided that the consent mentioned in the 7th rule meant only the admission to be presumed against the party declin- ing to oppose or argue. In such cases the judg- ment is entered in the usual form, and the form of the rule entered by the clerk in his minutes is, " on reading and tiling 1 the affidavit of service, &c., &c., and no counsel appearing, &c. Ordered, That the plaintiff (or defendant) take his rule (or judgment) as of course." As to the practice on which the 7th rule is found- ed, see 1 Salk. 309, 310 ; 1 Lord Rnym, 554 : 1 Lutwych, 308,481 ; 2 Lutwych. 1300; 3 Dallas, a53; Dean v. Sie- ard, in the Court of Errors, February, 1800. 84 York and the other residing in the city of Albany. That no person shall be an agent un- less he shall also be an attorney of this court, and every appointment of an agent shall be in writing, signed by the attorney, and filed in the office of the clerk in the city of New York or Al- bany, wherever the agent shall reside; *and [* 1 8 the clerk shall have constantly the names of the several agents, and of the respective at- torneys appointing them, and the latter in al- phabetical order, entered in a book to be kept in their offices for the purpose. That, except services during a vacation^jn suits where the attorneys for the respective opposite parties shall reside within forty miles of each other, services on the agent shall be as valid in all cases as if made on the attorney himself; and if there shall be no agent, the service of the notice may then be, by affixing the same in some conspicuous place in the clerk's office. That where the service shall be on the agent, or by affixing the notice in the clerk's office, it shall be double the time of service 2 which would be requisite, if the service was on the attorney himself, and that all services on agents, or in the clerk's office, shall, during a term, be in the city where the term shall be held. This rule, however, not to take effect until after the first day of the ensuing term of April. IX. Thai notices or rules of two days shall be abolished, and instead thereof, such notices or rules shall be of four days. X. That the practice requiring a term's no- tice of trial or inquiry shall be abolished. *XI. That in future no costs to counsel [* 1 for perusing pleadings or entries shall be taxable against the opposite party unless there shall be a certificate, signed by the counsel, certifying- that he perused the pleadings or entry charged in the bill as special, and that in his opinion they were special. XII. In order to provide a remedy against the grievance of having useless counts in the declaration taxed against the defendant, Or- dered, That except where the cause of action shall be for goods sold and delivered, or ser- vices performed, there shall not be more than one count in the declaration taxed against the defendant for each distinct cause of action, and where there shall be more than one count for the same cause of action, the attorney for the plaintiff may, in such case, elect the count to be taxed. That where the attorney for the plaintiff shall claim to have more than one count taxed against the defendant, he must then produce an affidavit to the judge or clerk, taxing the costs, that the suit was brought for several causes of action to be specified in the affidavit, and he shall then be entitled to have as many counts taxed as there shall be causes of action specified in the affidavit. And fur- ther, if there shall have been a trial, and the defendant shall procure a *certificate from [*2O 2. In April Term, 1800, it was decided that this rule requiring double time, &c.. applied only where an attorney was employed for the defendant and has no agent appointed. It was also decided that notice of motion for term, though served in the va- cation, was within the reason of this rule, and must be served on the agent in the city where the court is held. Service on the agent of an attorney who is a plaint- iff, is equally good as in other suits, and need not be on the plaintiff in person. 1 Caines, 253. COLEMAX. 1800 RULES OF THE SUPREME COURT. 20 the judge, certifying the counts on which the plaintiff recovered, or if there shall have been an inquiry, and the defendant shall procure a certificate from the sheriff or clerk, certifying the counts on which the damages were as- sessed, that then only the counts specified in the certificate shall be taxed against the de- fendant, the affidavit of the plaintiff's attorney notwithstanding; otherwise, that is to say, for want of such affidavit or of such certificate, such one count in the declaration, as the plaint- iff's attorney shall elect, and no more, shall be taxed. Provided, that in the above-excepted cases of goods sold and delivered, or services performed, the plaintiff shall be entitled to have a count in an indebitatus assumpsit, and a count on a quantum meruit or a quantum valebat, taxed for each of these respective causes of action, the above restriction of one count only for each distinct cause of action notwithstanding. XIII. In order to provide for a case omitted in the rules of April Term, 1796, Ordered, That in future where a notice of the rule to plead shall be affixed in the clerk's office, if the attorney for the plaintiff shall, before entering the default of the defendant, receive a notice from an attorney that he is retained to defend 21*] the suit, he shall be held to serve the *at- torney for the defendant with a notice of the rule to plead, and with a copy of the declaration, and the rule for pleading shall be from the time of such service, so that the time for which the notice of the rule to plead may have been affixed in the office shall not be taken into com- putation. XIV. That where a suit shall be commenced for a nonresident plaintiff, before security for costs, by a sufficient householder of the State in the sum of one hundred dollars, in the usual form, shall be given, the attorney shall be deemed to have become security for costs; and where at any time pending the suit, the plaint- iff shall remove out of the State, and the attor- ney shall thereafter proceed in the cause before such security shall be given, he shall in such case also be deemed to have become security for costs; but he shall not in any case be liable to an amount exceeding one hundred dollars, or where, if there shall be a plurality of plaint- iffs, one of them shall be resident within the State. APPOINTMENT OF CIRCUIT COURTS. 22*] *JANUARY TERM, 1800. ORDERED. That circuit courts be held at the following several times annually in the respective counties, that is to say : In the County of Rockland on the last Tuesday in May, in the County of Richmond on the Monday there- after, in the County of- Kings on the Friday thereafter, in the County of Suffolk on the Wednesday thereafter, in the County of Queens on the third Tuesday in June, in the County of Westch ester on the fourth Tuesday in June, and in the City and County of New York on the Tuesday thereafter, and on the last Tuesday in November. COLEMAN. In the County of Orange on the first Tuesday in June, in the County of Dutchess on the sec- ond Tuesday in June, in the County of Ulster on the third Tuesday in June, in the County of Columbia on the Fourth Tuesday in June, and in the County of Delaware on the tenth day thereafter. In the County of Otsego on the first Tuesday in June, in the County of Herkimer on thie second Tuesday in June, in the County of *Oneida on the third Tuesday in June, in [*23 the County of Montgomery on the fourth Tues- day in June, and in the County of Schoharie on the Tuesday thereafter. In the City and County of Albany on the first Tuesday in March and the first Tuesday in September, in the County of Tioga on the first Tuesday in June, in the County of Steu- ben on the second Tuesday in June, in the County of Ontario on the third Tuesday in June, in the County of Cayuga on the Monday thereafter, and in the County of Onondaga oh the Friday thereafter. In the County of Chenango on the last Mon- day in June, in the County of Rensselaer on the last Tuesday in May, in the County of Saratoga on the first Tuesday in June, in the County of Washington on the second Tuesday in June, in the County of Essex on the tenth day thereafter, and in the County of Clinton on the Tuesday thereafter. *BlLL8 OP COSTS SETTLED BY THE [*2 JUDGES TO SERVE AS PRECEDENTS. 9 1 1 6 2 2 1 3 2 6 6 5 6 Costs on Confession of Judgment out of Court, Retaining fee 1 Warrant of attorney - Filing warrant of attorney - Drawing declaration, folio 4 - Copy to file Copy for defendant's attorney - Filing declarations - - -0 Copy of oyer to file and filing Copy for defendant's attorney - - Motion and rule for judgment Term fee - Drawing record, folio 4 - - - Engrossing same, including declara- tion and plea, folio 10 - - 10 Drawing up judgment and entering on roll 090 Notice of taxing costs, copy and ser- vice 020 Copy of bill of costs for defendant's attorney Taxation and attendance - - - Signing roll Filing roll - *Docketing judgment f*25] - Drawing execution, folio 4, engross- ing and seal - 11 Return and filing - - - - 020 6 6 2 1 2 DEFENDANT'S COSTS. Warrant of attorney - - - - Filing warrant of attorney Drawing common bailpiece, folio 2, engrossing and filing - - 6 35 RULES OK THE SUPREME COURT. 1800 Drawing plea, folio 2, copy to file and filing 050 Copy for plaintiff's attorney and ser- vice ...... Term fee Certifying costs Attendance on same 02.6 050 040 020 Coats on Judgment by Default, and on Assess- ment of Damages. Retaining fee Warrant of attorney Filing warrant of attorney Drawing capias, folio 3, engrossing and seal - Clerk entering return and filing writ Sheriff's fees 26*] *Term fee .... Crier's fee Motion for body and rule - Drawing declaration folio Copy of declaration to file and filing motion and rule to plead - Copy of declaration for defendant's attorney and serving with rule to plead - Drawing affidavit of service of dec- laration and notice of rule to plead, folio 2 - Copy to file, filing and taking affi- davit Reading and filing affidavit - Drawing recognizance-roll exclusive of declaration, folio 5 Epgrossing same and filing - Clerk searching for bailpiece and fil- ing roll - Motion and rule to enter default - Term fee Motion and rule for interlocutory judgment Motion and rule that clerk assess damages ----- Notice of assessment on defendant Clerk's fee on assessment Brief and fee on assessment of dam- ages 27*] *Clerk reading and filing report Motion for judgment and rule Drawing roll, folio 4 - Engrossing the same with pleadings, folio Copy of costs for defendant and no- tice of taxing - Taxation and attendance Signing and filing roll, and docket- ing judgment .... Drawing testatum execution, folio 6, engrossing and seal Return and filing 190 010 1 086 010 050 019 066 066 030 029 019 020 060 050 060 066 020 080 1 1 020 066 060 080 060 050 16 020 Voste on a Trial at the Circuit or Sittings, and Judgment thereon, in the Supreme Court. Retaining fee ---190 Warrant of attorney 010 Filing warrant of attorney 010 M Drawing capias, folio 3, engrossing and seal - - 8 6 Clerk entering return, and filing writ 010 Sheriff's fees Motion and rule for body - - - 6 6 Term fee --'050 Crier's fee - - 1 9 Drawing declaration, folio - Copy of declaration to file, and filing *Motion and rule to plead [*28] - 6 6 Copy of declaration for defendant's attorney and service with rule to plead Copy of oyer for defendant's attor- ney and copy to file and tiling - Drawing notice of rule to plead - 020 Drawing affidavit of service of copy of declaration and notice of rule to plead, folio 2 - - 3 Commissioner taking affidavit - 010 Reading and filing affidavit - - 1 9 Drawing recognizance-roll, folio 5, and engrossing same Clerk searching for bailpiece and fil- ing recognizance-roll - - - 2 Notice of trial for judge - - 020 The like for defendant - - - 2 Note of issue for clerk and service 030 Drawing issue-roll, folio 4 - 060 Engrossing the same with pleadings, folio Drawing nixi prius record, folio 4 - 060 Engrossing same with pleadings, folio Clerk filing issue-roll and sealing nisi prius record - - - - 020 Drawing venire, folio 4, engrossing and seal 11 *Sheriff's fees and return [*29] - 090 Drawing subpoena, folio 4, engross ing and seal - 11 Drawing ticket, folio 3 - - - 046 Clerk entering cause in judge's book 020 Filing nisi prius record - - -010 Motion and rule that cause be made a remanet - - - - 066 Filing venire 010 Copies of ticket, folio 3, each Motion for leave to try cause - - 5 If inquest be taken by default, then motion that the same be entered 050 Entering rule for default - 016 Entering default in such case - - 1 Entering return of venire, and that plaintiff have leave to proceed to trial - --- - 1 6 Calling and swearing jury -020 Swearing witnesses Reading writings in evidence - Swearing constable - - 006 Taking and entering verdict - - 1 6 Certified copy of minutes of court 020 Fee to the clerk of the circuit - 100 Calling plaintiff when jury return - 1 Entering confession of lease, entry and ouster - - - - 016 Entering every nonsuit - - 1 6 *Crier's fees for calling and swearing jury L*3O] 1 Attorney's fee on trial 12 Counsel s fee on trial - - 1 10 Juror's fees 140 Brief for trial - 090 COLEMAN. 1791 ORDERS OF THE SUPREME COURT. Drawing posted - ' -060 Reading and filing posted - 020 Clerk searching for issue-roll to enter judgment thereon - - -010 Clerk supreme court filing venire and certificate - - - - 020 Motion and rule for judgment - -060 Drawing entries on roll after issue joined, exclusive of judgment, folio Engrossing the same, folio Drawing judgment and entering same on record - 9 Copy of costs for defendant's attor- ney and notice of taxation - Taxation and attendance 060 Signing roll - 020 Filing roll - 010 Docketing roll - -020 Drawing testatum execution, folio 6, engrossing and seal 16 Return and filing - - - - 2 ORDERS OF THE SUPREME COURT. 31*] ^OCTOBER TERM, 1791. IT is ordered by the court, as a standing rule, that upon the return of writs of scire facias, if the defendant be returned warned, or the second writ be returned nihil, the defendant shall appear in four days, or judgment shall be entered by default ; and if there be not four days in term after the return of the writ, he shall appear by the first day of the next term ; and upon entering such appearance, he shall have twenty days to plead. And it is 'further ordered, That where the first scire facias against bail is returned nihil an alias or testa- tum, as the case may require, shall issue to the COLEMAN. sheriff of the county where the bail shall ap- pear, by their additions in the recognizance, to reside. TERM, 1793. It is ordered, That in future, attachments against sheriffs out of office shall be grantable till the return of the process which is the ob- ject of the rule, instead of the old practice of granting a distringas, agreeably to the English practice. 37 ADJUDGED IN THE SUPREME COURT OF THE STATE OF NEW YORK. :*:**] *APRIL TERM, 1794. DOBBIN . W ATKINS. Nonsuit evidence written contract notice to produce. ON the trial it appeared that the contract on the part of the plaintiff to deliver, and the one on the part of the defendant to receive .and pay for the stock, had been reduced to writing, and mutually signed and interchanged between the parties; and the former was the con- sideration of the latter or of the assumpsitby the defendant as charged in the declaration. The plaintiff could not produce the writing, and not having given notice to the defendant to produce it, whereby to entitle himself to prove its contents, he was nonsuited. B. 34*] *LUDLOW ads. THE PEOPLE. C'ertiorari to have trial by foreign jury suffi- ciency of affidavit. THE Defendant was indicted at the Oyer and Terminer in Queen's County for a rape, and in the last vacation he obtained from a judge at his chamber, an allowance of a cer- tiorari to remove the indictment into this court, with a view to have a trial by a foreign jury. The certiorari was directed to the clerk of the Oyer and Terminer, and returned by him with the indictment annexed, and the following questions occurring : 1st. Whether a certiorari to remove an indictment for felony could be al- lowed otherwise than on motion in open court, and special cause shown. 2d. Whether a cer- tiorari to remove an indictment from the Oyer and Terminer ought not to be directed to and returned by the commissioners instead of the clerk. 3d. If the certiorari in the present case should be received and filed in this court, then how and where must the trial be ? whether by procedendo to the Oyer and Terminer, or by nisi prius at the circuit, or at bar ? and whether a foreign jury could be awarded in a capital case. The court permitted the certio- rari and return to be lodged only in court for the present, but not as either formally received or filed ; the defendant, however, having sub- mitted the affidavit on which he should ground his motion for a foreign jury, to the previous examination of the judges, and they deeming it insufficient, no opinion was therefore given on either of the above questions, and the fol- lowing order was entered *in the cause, [*35 viz : "The writ of certiorari issued out of this court, in this cause, directed to James Fairlie, clerk of the Court of Oyer and Terminer, and General Gaol Delivery, in and for the County of Queens, and the return of the said James Fairlie to the said writ being read, Ordered, that the said writ and return be not received and filed in this court, and that the several matters intended by the said return to have been certified and returned to this court, be in the same state in which they were before the said writ issued ; the said writ and the said return notwithstanding." The certioi-ari and return were thereupon entrusted to Mi: Justice Lansing, to be by him put again into the hands of Mr. Fairlie at Albany, where he re- sided. B. THE PEOPLE P. DOWELLE. Witness fees poor persons appearing on sub- poena, and -not on recognizance. SEVERAL poor persons appeared on sub- O poena to give evidence against the defend- ant. The court determined that on a just construction of the statute they were equally entitled to be paid as if they had appeared on recognizance. B APRIL TERM, 1795. CARNES v. DUNCAN, Administrator. Pleading nul tiel record as one of several plea*. THE Defendant pleaded payment and nul tiel record ; and on motion on the part of the * plaintiff, the court ordered the de- [*36 fendant to elect by which of the two pleas he would abide ; thereby deciding that where there are several pleas, nul tiel record can never 39 36 SUPREME COURT, STATE OF NEW YORK. 179~> be one of them. The principle of the decis- ion was declared to be, that nul tid record be- ing a matter, the knowledge of the proof of which the defendant might reduce to absolute certainty, it was not within the reason of the statute "enabling defendants to plead several pleas, for that the sole intent of the statute was to relieve against the hardship of restricting a defendant, having several matters of just de- fence all of them, however, of a nature, that the proof of them cannot be previously posi- tively ascertained to rest his cause on one of them only. B. Cited 6 Wend., 512. APRIL TERM, 1795. PLATT . PLATT. Habeas corpus relation to suit below. Cases cited : Abb. 199 ; Cract., 414, cited in the last Digest, tit. 5, c. 5, par. 3 ; Inst. Cler., 409 ; Inst. Legal, 237 ; Imp. Pract. Com. PL, 641 ; Boote's suit at law, 14, 17, 34. BENSON, J. The pleadings in this cause are: Narr. intitled of October Term, 1794, in as- sumpsit charged, 1st September, 1794, plea in abatement, that on the 28th January, 1793, the defendant was taken and detained in prison under the custody of the Judges and Assistant Justices of the Court of Common Pleas for the County of Westchester, by virtue of a plaint levied against him in that court at the suit of the plaintiff ; that the plaintiff declared against the defendant on that plaint, and the plea set forth the declaration at large, which is similar to the declaration in this court (with this difference only, that in the latter 37*] *there is an addition of a count on an inximul computassent, and in the former the as- tfumpnit is charged on the 1st of January, 1793); that the defendant sued out of this court an habem corpus for removing the cause, tested the 9th. and allowed the 27th August, 1794, and returnable the ensuing October Term ; that the habeas corpus was returned in that term.and setting forth the return, which is in the usual form ; that thereupon the defendant was delivered to bail in this court at the suit of the plaintiff in the plea aforesaid, whereupon the plaintiff exhibited the bill aforesaid in this court against the defendant in the plea afore- said ; that inasmuch as it appears by the bill here that the causes of action specified in the bill had not accrued before the term of the caption of the defendant by virtue of the plaint, nor before the time when the plaintiff declared on the plaint, nor before the day of the test, nor before the day of the allowance of the Jiabea* cot-pus, the plea therefore concludes by praying judgment of the bill, and that it may be quashed. Demurrer to the plea, and joinder in demurrer. "It is regularly true that if the plaintiff will himself discover to the court anything whereby it may appear that he had no cause of action when he commenced it, his writ shall abate ; of his own showing, it is against him. (Hob. 199.) Or as it is expressed by an ancient law- writer, "The Writ also falls" if at the time of 40 at the time of dating and issuing, the demand- ant had no competent action or cause for de- manding." *(Bract. , 414, as cited in [*38 issuing there was no cause for issuing,because, Theloal's Digest, Lib. 4, ch. 5, par. 3.) The question therefore between the parties in the present case is, whether the defendant shall, to- that intent, where the suit hath been removed by habeas corjms, allege any act of the plaintiff, oV other proceedings, in the court below, or the- test, or the allowance of the habeas corpus, as the commencement of the suit. This question depends on another, viz : Whether, where a suit is removed by habeas corpus, it does not then become a new suit in the court above, or whether it is not to be considered as the same suit, commenced in the court below, and con- tinued in the court above. With respect to- this question, it is clearly laid down "that the record itself is never removed by habeas corpus, but remains below, and therefore the plaintiff must here begin de noro" (Salk., 352), and must not only "declare de noro," but in Un- common bench must "bring a new original." It is part of the condition of the recognizance of bail on an habeas corpus in that court, "That the defendant shall appear to a new original to be filed." (Inst, Cler., 409., Inst. Legal., 237 ; Imp. Pract. Com. PI., 641. > And I should suppose, if it is now necessary to comply with mere formality or fiction, that where the proceedings are by bill, as distin- guished from where they are by writ, that the bill "on which the process used to issue against the defendant," which is "to warrant the declaration," and which, as analogous to the original writ, is said to be "the ground- work of the cause," ought to be filed de noro. (Boote's *Suit at Law, 14, 17, 34.) [*39 And although where a suit hath been com- menced within the requisite period and removed by habeas corpus, and the period should expire before the declaration de noro filed, and there- upon the defendant plead the statute of limita- tions, "the plaintiff may reply the suit below " (Salk., 424), and in like manner, where a suit is commenced within the period, and abated by the death of the plaintiff before judgment, the period being then expired, "this shall not pre- vent his executors ;" yet, the reason is not, that in the former case the suit above is a continu ance of the suit commenced below, or that an the latter case the suit by the executor is a con- tinuance of the suit commenced by the testator, but merely to show that the plaintiff "had rightfully and legally pursued his right." And I should suppose, for the same reason, that where priority of right attaches on bringing a suit, and a suit should be brought and be re- moved by habeas corpus,&nA in the intermediate time between bringing the suit in the court be- low and filing the declaration in the court above, another person should bring a suit against the defendant for the same cause, and the defendant should plead that matter with in- tent to oust the plaintiff of his priority, that, the plaintiff might replv, the suit commenced in the court below. The truth is, that when- ever right or justice may require it, a suit re- moved by habeas corpus may, to certain intents, be made to relate to the suit below, but not to it. as to the same suit technically continued, or on the proceedings in *which any of those [*4O COI.EMAN. 1795 PRICE v. EVERS. 40 in the court above are founded, in the sense that the count, narration or declaration is said to be founded on the writ or bill, or plaint, which- ever may be the original process. There is possibly another question between the present parties, viz., whether the rule is not to be taken strictly, that the defendant cannot avail himself of it as pleadable unless the plaintiff himself discover that he had no cause of action when he commenced it. (Hob. nt tupra.) In which, however, I should un- derstand to be comprehended, as well what the plaintiff must in the first instance put on the record, as what he is bound to discover on oyer prayed by the defendant, and also what- ever the defendant may elect to allege himself instead of praying pyer of it from the plaint- iff, but of which, if it had been prayed, the plaintiff was bound to give oyer. (Thel. Dig., lib. 10, ch. 4; Brown Lat., red. 1, pi. 3 ; Id., 2, pi. 6 ; Form. bene. plac., 3.) If the Law is so, and I am inclined to think it is, then it is fatal to the defendant's plea ; because (and which it is to be remarked, is decisive, that the process is not continued from the one court to the other, there being no such thing, where a cause hath been removed by habeas corpus, as oyer in the suit in the court above of any of the matters in the suit in the court below), the defendant hath no legal mean to make the matter of variance (for of that nature is the matter of the plea in this case) appear on the record. (Theloal's Dig., lib. 9, chap. 5.) 41*] *I wish, however, to be considered as not having come to a decided judgment on this point ; my opinion against the defendant is grounded wholly on what I have previously advanced. I think the plea is insufficient, and therefore, that the defendant answer over. B. Cited 1 Caines, 272. PRICE v. EVERS. Amendment of record. IN the Court of Errors, 1796. Error from the Supreme Court on a judgment in as- fnimpsit by default. The plaintiff in the court below had in the in toto attingens on the roll, taken judgment for sixpence less than the amount of the damages and costs found by the jury, and the costs of increase. The following judgment was thereupon entered in this court, viz : "This court having heard counsel on both sides, and due consideration having been had of what was offered on either side in this cause, and one of the causes of error assigned being a miscasting by the defendant in error. It is thereupon ordered by this court, that the record in this cause be amended, whereby to correct such miscasting, as follows, that is to say, by striking out the word ten in the judg- ment between the word pounds and the word .^hillings, and inserting the word eleven instead thereof ; and by' striking out the words and sixpence, after the said word shillings. And it is thereupon further ordered and adjudged by 42*] this court, that *the said judgment given in the said supreme court be, and hereby is af- firmed ; and that the transcript of the said record so amended be remitted, to the end that COLKMAN. the record remaining in the said supreme court be also amended in like manner, and that ex- ecution may be thereupon had accordingly. And it is further ordered, that the defendant in error pay to the plaintiff in error his costs of prosecuting the said writ of error to be taxed." B. Cited 3 Johns., 99 ; 2 Cow., 410 ; 1 Denio, 678. JULY TERM, 1796. BRANTINGHAM'S CASE. Imprisonment for debt charging defendant in execution election. THE defendant, having been surrendered in discharge of his bail, and thereupon com- mitted to custody, the plaintiff proceeded to judgment, but suffered more than three months to elapse after judgment was entered, without charging the defendant in execution. He was then summoned before His Honour Mr. Justice Benson, at his chambers, to show cause why a supersedeas should not issue, because he had not charged the defendant in execution within the time prescribed by the 12th section of the Act, entitled "An Act for the relief of debtors, with respect to the imprisonment of their per- sons," passed the 13th of February, 1789. The plaintiff, after notice of the application and before the time of attendance, charged the de- fendant in execution, and on the hearing, showed that for cause. *His Honour Judge Benson reserved [*43 the question, and stated the case to the judges at a conference, at which they were all pres- ent. They were of opinion that a supemedta* ought not to be allowed. That the intent of the statute was to enable the defendant to put the plaintiff to his election, either to charge the defendant's body in execution or to resort, to his estate ; and the plaintiff having made his election before the supeiyedeas was allowed, the defendant was not entitled to his discharge. DRAKE t>. HUNT. Non pros. removal of cause acceptance of declaration. THIS action was originally commenced in the Mayor's Court of the city of New York and removed by habeas corpus. Bail had been regularly filed, and Munro, for defendant, moved the last April Term, that the plaintiff be nonprossed for not declarinsr. He cited 2 Crompton, 410 ; 2 Salk., 455 ; Gil- bert's Law of Distresses, 139 ; Our. admit. The court now gave their unanimous opin- ion, That the cause having been removed to this court without the agency or approbation of the plaintiff, he was not obliged to follow it, and could not be -non. prossed for not declar- ing here, as he had never been in court ; but that the defendant was not bound to accept a declaration after two terms had elapsed. G. 41 44 SUPREME COURT, STATE OF NEW YORK. 1796 *WENDOVER T. BALL. Sheriff' attachment bail one nominal person stipulation of sJwriff. ABAILPIECE had been filed, containing the name of one real person, who had at the same time filed an affidavit of justification, and of one nominal person. A rule was then taken to bring in the body, or show cause why an attachment should not issue against the sheriff ; and now Mr. Wood, for the plaintiff, moved that the rule be made absolute. Per Curiam. The practice of inserting only one real person in bailpieces has generally ob- tained, but has passed because there has been no opposition to it. It is requisite, if the plaintiff exacts it, that two real persons should become bail. But the sheriff stipulating to put in addi- tional bail, the motion was waived. GENERAL RULE. SATURDAY. ORDERED, That on trials, one counsel only on each side shall examine or cross-exam- ine a witness, and that two counsel only on each side shall sum up the evidence to the jury. 4.1*] *OCTOBER TERM, 1796. COHAN, Administrator, ads. KIPP. Default imperfect plea mistake. A PLEA was drawn and signed, but the de- fendant's attorney forgot to file it, and a copy without signature was served. A default for not pleading was entered during the last vacation, subsequent to the delivery of the plea. ifr. Jones, for defendant, now moved to set aside the default, on the ground of irregularity; he produced also an affidavit of merits. Per Curiam. ' A plaintiff may accept or re- fuse an imperfect copy of a plea ; and if he accepts it, the court will compel the defendant to file a perfect plea, if that has not already been done. Here appears to have been a mere mistake on the part of defendant. Let him file a plea instanter, and the default be set aside on payment of costs. APRIL TERM, 1796. HUANSON ads. BOARDMAN ET AL. Verdict demurrer. IN this cause a demurrer was filed to the rep- lication ; the defendant's attorney at the 42 same time applied to the deputy-clerk for leave to strike out the similiter, but the clerk refused to permit him to do so. Notice of trial was then given, and an inquest taken. *Mr. Jones, for defendant, now moved [*46 that the verdict be set aside for irregularity. Per Curiam. The 9th rule of April term, 1796, provides that "If either party shall in pleading, in any degree, tender an issue to the country, and if the opposite party shall not de- mur to the pleading within twenty days after service of a copy thereof, the cause shall in each of these cases be deemed to be at issue ;" but here was a demurrer filed within twenty days, and the striking out the similiter from the replication which had been filed was not necessary. Let the verdict be set aside with costs. Cited in 18 Johns., 138. FRANKLIN ET AL. ads. NORE. Verdict notice of motion for struck jury. ISSUE was joined during the last vacation, and before notice of trial was received the defendant served the plaintiff with notice of a motion for a struck jury; notwithstanding which, the plaintiff proceeded to give notice of trial, and took an inquest. Mr. S. Jones, for defendant, moved that the verdict be set aside for irregularity. Per Curiam. The defendant availed himself of the first opportunity in his power to apply for a struck jury, and it was irregular for the plaintiff to proceed after receiving notice of the intended motion. Let the verdict be set aside with costs. "JANUARY TERM, 1798. [*47 WINTER t. CARTER. Bail-bond default of record judgment. was an action on bail-bond. The de- JL f endant pleaded comperuit ad diem ; plaint- iff replied nul tiel record ; and issue being taken thereon, day was given, by rule entered in va- cation, to produce the record on the first day of this term. And now, on this day, being the quarto die post, The Attorney- General, for plaintiff, moved that the defendant be called to produce the record. The court expressed some doubt whether this was to be considered as a common rule, within the intent of the first general rule of April Term, 1796, and took time to consider of it till the succeeding Monday, when they or- dered judgment for default of record. COLHMAN. 1798 OUDENARDE V. \ T AN BERGEN. 47 OUDENARDE v. VAN BERGEN. Interlocutory judgment default not entered. THE plaintiff had filed his declaration in va- cation, and the rule to plead having ex- pired, he entered interlocutory judgment the last term, without having first entered a de- fault. Spencer, for defendant, moved to set aside this judgment, on the ground that no default had previously been entered. 48*] *On the last day of term, Mr. Justice Lansing delivered the unanimous opinion of the court : When this question was presented in the first instance, I did suppose that the entry of the default could not, under the existing rule, have any other effect than merely to preclude the opposite party from pleading, and that the plaintiff might waive the entry of the default, and enter a rule for judgment. Upon further reflection on the subject, and after carefully examining the eighth rule en- tered in April Term, 1796, it appears to me to be the better construction that the entry of the default is indispensable to entitle the plaintiff to his judgment, the expression being, " That the default being duly entered, the party who shall have had it entered shall not be held afterwards to accept a declaration or answer, as the default shall happen to be, and may at any time after four days in term shall have inter- vened thereafter, have a rule for such judgment as is to be rendered by law, by reason of the default." This imposes it on the party enter- ing the default to file the necessary proofs to evince its regularity, and if any subsequent question arises on that subject, a resort to those proofs affords a determinate test. We are all of opinion that the interlocutory judgment be set aside. 49*1 *APRIL TERM, 1798. KETTLETAS v. NORTH. Writ of error permission to losing party to file roll. JUDGMENT had been rendered for the de- J fendant on verdict, but the roll had not been filed. Mr. Burr, for plaintiff, now suggested that he intended to bring a writ of error, and moved for a rule that the defendant procure the roll to be signed and filed in four days, or that the plaintiff have leave to do it. Ride granted. WICKHAM 0. WATERS. Ejectment view boundaries. p RAHAM moved for a view, on affidavit VT that view was necessary. But as he did not state that boundaries were in question, the court refused to grant the motion. COLEMAN. WIMPLE ET AL. v. M'DOUGAL. Amendment ejectment declaration election of defendant. VAN VECHTEN, for the plaintiff, moved for leave to amend the declaration in eject- ment, by adding a count on the demise of a person not originally named as a lessor. He mentioned the case of Jackson, ex dem. Quack- enbos, \. Dennis, where this was allowed. Mr. GraJiam, contra. *Per Curiam. In the case of Quacken- [*5O bos v. Dennis, it was so ordered, and that is to be considered as a precedent to govern. But it is reasonable that the defendant should be permitted to relinquish his defense, if he chooses to do so, as the introduction of a new party may vary his situation. Let him elect, by Friday next, to abide by or relinquish his plea ; and if he relinquishes it, the plaintiff must pay all the costs accrued up to that day. M'GOURCH v. ARMSTRONG. Sheriff attachment arrest notice. HENRY moved for an attachment against the sheriff of Montgomery, on a rule taken by him in vacation to bring in the body by the second day of term. But it appeared that no- tice of such rule had not been served twenty days. Per Curiam. Although the printed rules do not reach the case, the sheriff must have twenty days at least after service of the notice. Let the plaintiff take nothing by his motion. DRIGGS ads. VAN LOON. Inquest interlocutory judgment notice of retainer subsequent notices. MOTION by Kirkland to set aside a writ of inquiry and subsequent proceedings. Defendant had retained an attorney after in- terlocutory judgment, who gave notice there- *of ; but plaintiff proceeded to execute a [*5 1 writ of inquiry, without giving notice to the attorney so employed. Per Curiam. Whenever an attorney is em- ployed, though it be too late to plead, yet he is entitled to all subsequent notices. Motion granted. . Cited in 8 Cowen, 117. BALLARD AND PARKMAN, Manucaptors of CHAPMAN, ad^s. KIBBE AND LUDLOW. Sail surrender of principal discharge of one bail. was an application by bail to surrender JL their principal on the following case : In April Term, 1797, ca. sa. against the 43 51 SUPREME COURT, STATE OF NEW YORK. 1798 principal was returned non est. On which plaintiffs issued a cap. ad. reap, against the bail jointly, on their recognizance. This writ was delivered to the sheriff of Herkimer or his dep- uty, early in April vacation, being returnable the last Tuesday of July then next. On the 7th of July the deputy, having pos- session of the writ, but not in his pocket, met Parkraan, one of the bail, and informed him of the writ ; on which Parkman promised to come to the house of the deputy and indorse his ap- pearance thereon before the return day. He accordingly came and indorsed his appearance, but at what time precisely, Cheesebo rough, the deputy, who is the witness, does not recollect. By the affidavit of Parkman himself, it appears to" have been two days after the return day of the writ. The writ was then returned, with 52*] *such indorsement, but without any re- turn indorsed by the sheriff himself. In July vacation, plaintiff issued an at. cap. against Ballard, to answer aimul cum Park- man, returnable in October Term, which hav- ing been returned "non est," plaintiffs issued a testatum against Ballard alone, returnable in January, 1798, directed to the sheriff of Onon- daga, who took him. August 28th, 1797, defendant's attorney had delivered plaintiff's attorney a writing intended as a plea in abatement, praying that for want of an official return, as well as on account of such irregular service of the writ on Parkman, the plaintiff's bill might be quashed. February 10th, 1798, plaintiff's attorney de- livered a copy of the declaration filed against the bail jointly. February 13th, 1798, plaintiff's attorney re- ceived a plea in chief, nil debet, in behalf of Ballard alone ; and at the same time another writing, intended as a plea in abatement, in be- half of Parkmaii separately, and so entitled, and grounded upon the before mentioned ob- jection, viz., the want of official return. The proceedings respecting the surrender were as follows : January 13th, 1798, three days before the term, the sheriff of Herkimer signed an ac- 53*] *knowledgment that the principal was in his custody on a surrender by Parkman, in behalf of himself and Ballard. January 27th. On application of Ballard in behalf of himself and Parkman His Honor Judge Benson made an order for a commit- ment. March 5th. The sheriff signed a further ac- knowledgment, that the principal was still re- maining in his custody when the committitur came to his hands. March 20th. Judge Benson made an order for the plaintiffs to appear and show cause why an exoneretur should not be entered. They ap- peared accordingly, and the case was adjourn- ed over to be argued and determined in open court. On this case the following questions were raised : I. Are the defendants now too late in their application? II. Can one bail be discharged alone when the application is for the discharge of both? III. Will the discharge of one bail operate as a discharge of all? and if one is fixed, will not the other be so likewise? (Curia ad vult.) 44 Per Curiam. The surrender by Ballard is good as to both. If a plaintiff will elect to sue special bail jointly, he who is first taken shall *have time to surrender till the last is [*54 taken also, and till the time allowed him (the last) for surrendering is expired. If he sues them separately, then each may be separately fixed ; or one may be fixed, and the other may afterwards surrender the principal, and be dis- charged. So that, in fact, plaintiff may have the body of defendant in custody, and at the same time go on with a suit against the other bail which has been fixed. He cannot, how- ever, have more than one satisfaction. Let the defendant* take the effect of their mo- tion, on payment of costs. Cited 6 Daly, 397. JULY TERM, 1798. WOODMAN KT AL. ad*. LITTLE. Scire facias teste second sci. fa. limitation. THIS was a motion to set aside the proceed- ing on a xcirt 'facia* quare ex non and two nihih returned, because there had not been 15 days between the teste of the first and return of the second, sci. fa. In support of the mo- tion was cited, 4 Durn. & East, 583. It was contended in reply, that when pro- ceedings in the original cause are by bill, four days are enough. (4 Durn. & East, 663.) Per Curiam. There must in all cases be 15 days between the teste of the first, and return of the second set. fa. Mr. Golden for defendant. Mr. Houston for plaintiff. *PEPOON ET AL. ad*. JENKINS. [*55 Amendment of writ omission of clerk's name. RIGGS, for defendants, moved to quash the writ for want of the clerk's name to it, and Woods at the same time moved for leave to amend. He contended that the writ is sup- posed to be the act of the clerk, and ought not to prejudice the party ; and cited 1 Cromp, 106. and 1 Durn. & East, 783 ; Yelv., 64. Per Curiam. It may be considered as the omission of the clerk, and amendable. Let it be amended on payment of costs. THE PEOPLE, at the relation of THOMPSON, r. THE JUDGES OF THE COURT OF COM- MON PLEAS FOR WESTCHESTER. Piling bill nunc pro tune assignment of error. AT a previous term, Woods had moved for and obtained a rule to stay proceedings COI.KMAN. 1799 WlSNER ET AL. V. WlLCOX ET AL. 55 on a writ of error in this court, until the com- mon pleas in Westchester could be moved for leave to file a plaint nunc pro tune, the want of which had been the error assigned here. Ap- plication had been made to that court for such purpose, and was refused by them, on which Mr. Woods obtained the rule here to show cause why a mandamus should not issue to compel them to allow such application ; and now Mr. Munroe showed cause. o6*J *He insisted that the court below had always a discretion in cases of this kind, and that in the present instance, having considered the judgment before them as unjust, had re- fused the application on that ground, and that therefore it was not a proper^ case to grant a mandamus. Per Curiam. The court below have indeed a discretion, but it is a legal and not an arbitra- ry one. We always allow a bill to be filed nunc pro tune when error is brought and that assigned for cause. Rule absolute. WISNER ET AL. v. WILCOCKS ET AL. Ejectment parties landlord receipt of rents. Cases referred to : 3 Burr., 1292 to 304 ; Comb., 209 ; Uunnington on Ejectment, 72 ; Buller, 95. OGILVIE moved that Amos Wilcocks be ad- mitted to defend jointly, on his affidavit that the defendants hold of him as their land- lord. Mr. Riggs, for plaintiff, opposed the granting a rule, because the affidavit did not specify that Amos Wilcocks was in the receipt of rent. Per Curiam. There is no case which goes the length of saying that none are to be con- sidered as landlords within the meaning of this rule, but those who actually receive rents. Some dicta look that way (vide 3 Burr., 1292 to 1304; Comb., 209; Runnington on Eject- ment, 72 ; Buller, 95), but it is the privity of interest, and not the receiving of rent, which is 5 7*] the true test. *A mortgagee out of pos- session may be let. in to defend. Strangers only are to be excluded. Motion granted. Cited 17 Johns., 112. BERRY, who is impleaded with BUSHBEE, ads. ELLES ET AL. , Assignees of the SHERIFF OF NEW YORK. Stay of proceedings on bail-bond loss of trial neglect of plaintiff. MOTION by Boyd to stay proceedings on bail-bond. It appeared that the capias in the original suit had been returned in Jan- uary Term last, and that a declaration was filed the 14th of June following : no bail to the action then being put in, process issued on the bail-bond in the last vacation, and on the 10th of August the defendant was arrested thereon. It also appeared that the notice of this motion was accompanied by an offer of good bail and a cognovit actionem. COLEMAN. Mr. Golden opposed the motion, on the* ground that the plaintiffs had now lost a trial in the original action for want of bail. Per Curiam. The plaintiffs may have lost a trial, but they have been negligent on their part. They should have put the bail-bond in suit in January vacation. It is not a loss of trial alone which will prevent our interfering to relieve in these cases, but that loss must be without neglect on the part of *the [*58 plaintiff, and must be occasioned by the delay of defendant after bail is called for. If a dif- ferent practice was allowed, a plaintiff would be tempted to wait a term or longer, and thus ensnare the bail. The court will always stay proceedings if application be made for that purpose on the return of the bail-bond writ. Let the proceedings be stayed on payment of costs. BIRD, SAVAGE & BIRD ads. ROBERT MURRAY & COMPANY. Removal of causes to federal courts by alien defendants appearance bail extepted to. HARRISON presented a petition from the defendants to remove the cause into the federal court, on affidavit that defendants are aliens. It appeared that special bail had been put in last December, but an exception was entered, and bail had not been perfected till this term, and till after the petition had been filed. Mr. Pendleton and Mr. B. Livingston objected, insisting that the defendants were too late, their appearance having been entered in January last, and the act of Congress, under which the ap- plication is made, directs that the petition be filed when the appearance is entered. Per Curiam. The defendants are in season. As plaintiffs excepted to the bail, they shall not be allowed now to say defendants appeared be- fore. Motion, granted. SUYDAM r. M'COON. [*59 Amendment-. second amendment of writ mis- pr-ision of clerk. IN this cause the plaintiff, who claimed under a sheriff's sale, had been nonsuited on the trial, for a variance between the record pro- duced in evidence, and the writ of venditioni exponas, and at January Term, 1797, had procured the nonsuit to be set aside on the payment of costs, and had moved for and ob- tained leave to amend the writ by striking out the words twenty-eighth, and inserting the word twentieth. Having been nonsuited a second time for a like variance between the record and the same writ, Mr. Ecertson now moved for leave to amend again, by striking out the words "last past" and inserting the figures 1790, and cited Thomas Jones, 41. Mr. C. I. Bogert objected that it was now too late. 45 59 SUPREME COURT, STATE OF NEW YORK. 1799 Per Ouriam. These ertrors are to be consid- ered as the misprision of the clerk. On the authority of Jones and of the former decision in this court. Let tlie amendment be made. CHILD v. MURRAY, Manucaptor. IN set. fa. on recognizance of bail and inquest thereon, the jury assessed interest from the docketing of the original judgment, to the re- turn of the posted. GO*] *To show that this was the just method of computing interest, the following authorities were cited : 2 Durn. & East, 57 ; 10 Mod. Rep., 278, notes; Sid., 336, 358. Per Ouriam. The plaintiff is entitled to have interest calculated against the bail, from the day they become fixed. By this the court mean, after the expiration of the time allowed ex gratia to surrender, that is, eight days after capias returned. JANUARY TERM, 1799. CANNON, Manucaptor, ads. CATHCART. Bail exoneretur principal imprisoned before return of capias. THE principal being confined in the County of Herkimer on a charge of felony, appli- cation was made for a committitur to one of the judges of that county in April vacation, 1798, and before the return of the capias against the bail, which was refused. In September following, the principal was convicted, and sentenced to be imprisoned at hard labor in the State prison for life. On these facts a rule was taken to show cause why an exoneretur should not be entered. Per Cnriam. It appears that the defendant made a bona fide attempt to surrender the prin- cipal before the capias was returnable, and was frustrated. The principal was afterwards im- prisoned for life, and even if the surrender had Ol*] been effected, it *could not have benefit- ed the plaintiff. Let tlie defendant take the effect of his motion on payment of costs. M'NEALY ads. MORRISON. Default notice of retainer similar notice to another attorney notice thereof. OLEIGHT, plaintiff's attorney, received a O notice of retainer from Smith in July; in September following he received a like notice from Mr. Bowman, and twice seemed recognize him as the attorney in the suit, though he never served him with any declaration, but served it on Smith, and entered a default for want of a plea, which Mr. Bowman now moved to set aside on the above statement of facts. M Per Ouriam. It was certainly incumbent on Sleight to have told Bowman, when he received his notice of retainer, that he had received a similar notice from Smith. Let the default be set aside ; the costs to abide the event of tJie suit. HOLCOMB ET AL., Defendants in Error, ads. HAMILTON. Amendments of course record. Citation 5 Burn. & East, 577. A FTER imparlance, but before judgment, I. 11- S. , one of the defendants, died; judgment was then entered against both, and execution issued against the survivor, without any sug- gestion on the record of the death of the other defendant; and on error coram wbis, a rule had been taken to show *cause why the [*O2 record should not be amended by suggesting the death of I. S. Mr. Whiting showed for cause, that the appli- cation was too late, the proceedings having ceased to be on paper. (2 Viner's Abridg., title Amendment, letter H., pi. 17; Idem., page 313, letter G., pi. 2.) Mr. Woods, in support of the rule, read the act of this State, which authorizes the suggestion of the death of one defendant when the cause of action survives, and in answer to the objection in point of time, he cited 5 Durn. & East, 577. Per Ouriam. The case cited from Durn- ford & East is in point. Courts have of late, so long as the record is before them, gone into the practice of granting all amendments to which the party "would have been entitled as of course, provided that it be of no prejudice to the other party. Let the rule be made absolute on payment of the costs of this motion and of the writ of error. CHURCH ads. CLASON AND STANLEY. 1. Consolidation of actions English ruU ten- der of agreement. 2. Idem rule to examine witness de bene esse refused. HERE were 18 separate causes on one policy. In July Term last, on the refusal of plaint- iffs to enter into the consolidation rule, the court granted imparlances in all the causes but one, and the like in October Term, and now Mr. Boyd, for defendant, makes application for further imparlances. *Mr. Riggs objected. He produced an [*OI5 agreement which had been tendered by plaintiffs to the defendant, and was refused. This he con- tended would, if accepted, have answered the same purpose as an exact compliance with the rule, and ought to have been received; and that the defendants, after refusing that offer, were not entitled to take the effect of the present application. Per Ouriam. The English consolidation rule is the one the court mean to insist on, and they will not permit the plaintiffs to prescribe to them any other. Let tJie defendant take the effect of his motion. COLEMAN. 1799 CARD ads. FITZKOY ET AL. The plaintiffs then applied for a rule to ex- amine witnesses, de bene esse, in the one cause which stood open for trial, but the court re- fused it, observing that they were entitled to no indulgence till they had first acceeded to the terms already required. CARD ads. FITZROY ET AL. Special motion service of affidavit. MOTION for judgment as in cases of non- suit, for not proceeding to trial, on the usual affidavit; but no copy had been served on the opposite party. Per Curiam. It is a rule of practice without exception, that whenever a special motion is to be made founded on affidavit, a copy of such 64*] affidavit must *be regularly served on the opposite party. The defendant takes nothing by his motion. GILLET ads. WILDE. Nonsuit default stipulation. TM~OTION for like judgment for like cause. Per Curiam. A defendant is not entitled to this judgment for the first default, provided the plaintiff will stipulate to bring the cause to trial at the succeeding circuit; but if the plaint- iff can sufficiently account for the default, he will not be required even to stipulate. And in all cases the defendant must make this motion the next term after the default, or he will be deemed to have waived his claim to the stipu- lation. HERRING v. TYLEE. Amendment of interrogations for fuller answer. A TTACHMENT against the sheriff. He -L\_ had answered the interrogatories, and it was now moved to amend them, the amend- ment not being as to any new matter, but only thereby to obtain a more full answer to the matters already contained in them. Motion allowed. B. WILLIAMS ads. BATES. Imprisoned debtor proceedings for relief- ser- vice of notice of petition absent creditor. PROCEEDINGS under the Act of the 18th X Feb. 1789, for the relief of debtors with re- spect to the imprisonment of their persons. 65*] *The notice of the petition had been served on the attorney in the suit, the plaint- iff, the creditor, residing out of the State. The service lield sufficient. B. COLEMAN. MABBIT ET AL. ads. BIRD, Assignee of the SHERIFF of RENS SELAER. Equity bail-bond before forfeiture. THE original suit was instituted against five; the sheriff returned four, taken, and as to one, non est; but by mistake took bail-bond for the appearance of all. The four who were taken entered special bail, and gave notice, to which there was no exception. The plaintiff then instituted the present suit on the bail-bond against the whole. And now, Mr. Woodworth, for defendants, moved to set aside the proceedings in the suit for irregu- larity. Mr. Bird, contra. He insisted that this court have no cognizance of a case like the present; that this is an appeal to the equity powers of the court, which can never be exercised till after forfeiture of the condition. The de- fendants must resort to their plea. Per Curiam. The principle contended for by the counsel for the plaintiff is correct. Equity *powers only arise after for- [*66 feiture of a condition in the bail-bond. The defendants must rely upon their plea of comperuit ad diem. But this decision is not to be understood as precluding defendants from applying hereafter to the equitable interposition of the court. Motion denied. PHELPS . BALL. Amendment of fi. fa. after satisfaction mis- takes. IN this cause a motion was made by the At- torney-General to amend the/, fa. after it was returned satisfied, by altering two mistakes in the writ. He cited Sir T. Jones, 41. Motion granted. Citation Sir T. Jones, 41. APRIL TERM, 1799. FLEMING, Executor, p. TILER. Costs nonsuit variance clerical error. THE plaintiff shows as cause against a" rule why he should not pay costs, he having been nonsuited on the trial at the circuit, that the writing on which the suit was brought was dated in seventy, &c., and, through mistake in copying the date in the declaration, as entered on the Nisi Prius Roll, was ninety, &c., and that for this variance the defendant had ob- tained the nonsuit against him. Rule discharged B. 47 SUPREME COURT, STATE OP NEW YORK. 1799 67*] *WHITE ad*. SPENCER. Costs set-off recovery of insufficient amount attorney's lien. THE plaintiff had recovered, but not above 20; and now a motion by the defendant to set off his costs against the sum recovered, which was opposed on behalf of the attorney for the plaintiff, whose affidavit was read, stating that the whole of his costs was still due to him, and that the plaintiff had become in- solvent. Rule nevertheless granted to ihe defendant. B. PHELPS ad*. STAFFORD. Default premature entry notice of motion to net aside default service judgment execution and process. THE attorney for the plaintiff had entered the default, the last July vacation, before the rule for pleading had expired, and the de- fault being entered, he had refused to accept a plea from the attorney for the defendant; who, having shortly thereafter discovered that the default had been prematurely entered, gave a notice of a motion, as of the ensuing October Term, to set it aside, and no counsel appearing to oppose the motion on the part of the plaint- iff, it was granted of course. The attorney for the plaintiff, when the notice was served, resided in Albany, but hap- pening at the time to be out of town, and his office shut up, and he having not long before expressed an intention that he probably would remove into the country, the attorney for the 68*] defendant had supposed *he had re- moved, and not finding he had appointed an agent, the notice had been affixed up in the clerk's office. The judgment has since been entered, and execution taken out against the defendant, and process issued against the bail. ORDERED, That the whole of the proceed- ings, from entering the default inclusive, be set aside, and the costs to abide the event of the suit. B. THE PEOPLE v. TOWNSHEND. Certiorari filing proceedings returning pro- ceedings new trial. rp HE defendant was convicted under the stat- J. ute, at the last court of Oyer and Ter- miner in Dutchess, of perjury, and absconded before judgment. Afterwards he voluntarily surrendered himself, but judgment was not pronounced. LEWIS, J., who presided at the trial, now re- ports to the court that the verdict was against evidence, and that it was given on grounds not pertinent. Per Guriam. There must be a new trial: and the judge who may preside at the next Oyer and Terminer in Dutchess will communi- cate this opinion to the judges of that court. In the mean time the defendant must give bail for his appearance. 48 The proceedings which have been brought up by certiorari, not having been actually re- ceived, must be returned. If they had been filed here, *they could not be sent back [*69 to the Oyer and Terminer; no form of process for such purpose is to be found in tlie books; but the court must have proceeded to try the defendant at bar by a jury returned from Dutchess, or have sent the cause down to the next circuit to be held there. The court in- cline to the opinion that in a capital case it would be otherwise, and that no such case could be sent down for trial. BENSON, J., suggested that a certiorari for bringing up the proceedings in like cases ought only to be allowed in open court. ( Vide Ludlow ads. The People, ante, page 34. \ S. C., 1 Johns. Gas., 104. Cited 5 Wend., 42; 1 Den., 678; 30 N. Y., 548, 554; 2 Barb., 288 ; 1 Wheel., 49T ; 1 Park., 370, 629 ; 5 Park., 645. CONKLIN v. HART. Depositions de bene esse aged and infirm wit- nesses cause not at issue. ON affidavit that witnesses were so aged and infirm that they could not personally ap- pear in court, it was moved that their deposi- tions be taken, de bent esse, before one of the commissioners for taking affidavits, which was objected to, because the cause was not at issue, and because there was no precedent for such an application. Per Cur-iam. This appears to be a proper case for granting a commission, and it may be applied for at any time after a suit is instituted Motion granted. *HEYERS v. DENNING. [*7O 1. Vacating rule, no appearance of bail for de- fendant. 2. Attorney appearing as agent costs. IN this cause the plaintiff had proceeded to outlawry, when he received a notice of re- tainer from* S. 8. for defendant, who, in his notice signed for or on behalf of defendant, and said, verbally, that he did not mean to ap- pear as attorney. At the last term S. had ob- tained a rule that all proceedings should be set aside ; but no bail had been entered. Mr. Jones, for plaintiff, moved to vacate the rule which was so obtained, on the ground that the interference by S. was irregular. Per Curiam. S , appearing in the manner he did, must be considered as a mere stranger, and could not take any rule in the cause. The defendant has neither appeared in person, nor by attorney, nor entered bail ; therefore all the proceedings must be set aside. And the court, considering it as improper practice in any attor- ney to attempt to appear as agent, but not as attorney, add, that S. himself pay the costs. C'OLEMAN. CORNELL v. ALLEN AND TALXIADGE. 71 CORNELL v. ALLEN AND TALMADGE. Nonsuit set aide Cause settled Notice to Attor- ney Costs of Motion. MOTION to have judgment of nonsuit for not bringing on the cause to trial, set aside. 7 1*] *The suit was against the defendants jointly, on a promissory note. Talmadge only was brought in, and he employed an attorney. The note was afterwards, by agreement be- tween Allen and a third person, taken up, and the costs paid by that person to the plaintiff's attorney. The attorney employed by Tal- madge, notwithstanding he was informed by the plaintiff's attorney that the note was so taken up and the costs paid, filed a plea, the general issue, and served a copy on the plaint- iff's attorney ; and in a subsequent term, after there had been a circuit in the county, ob- tained the above rule for judgment of nonsuit. Judgment set aside, and the attorney employed by Talmadge ordered to pay to the plaintiff's at- torney tJie costs of this motion. B. MURRAY v. SMITH. Costs of Declaration and Rule to Plead No Bail. THE cause had been removed by habeas corpus, and the plaintiff filed a declaration, ?ind entered a rule to plead ; but the defendant not having put in bail, a procedendo issued, and the plaintiff prevailed in the inferior court. On a reference to the judges by both the par- ties, they declared that the plaintiff was not en- titled to have the costs of the declaration and rule to plead in this court taxed against the de- fendant, these services being useless, until the defendant has put in bail. B. 72*] *LECONTE . PENDLETON. Pleading Nul tiel record and Nil debet Election. Citation Carnes v. Duncan, Col. Cos., 41, ante. THE declaration in this cause consisted of a single count in debt on judgment, ren- dered in the State of Georgia, to which the defendant pleaded, 1st. Nul tiel record, and 2. Nil debet, with notice of special matter. It was then moved that the defendant show cause why one of the pleas should not be struck out. Mr. Harrison, for plaintiff, in behalf of the motion, insisted that the record of Georgia is, by the Constitution of the United States, enti- tled to implicit faith ; and if so, the two pleas could not stand together ; or if such faith is not to be given, the plea of mil tiel record is a mere nullity, and ought to be struck out, and cited to this point, 1 Douglass, 6 ; 2 Dallas, 302 ; 1 Cromp. Prac., 173. He also contended that one plea being triable by the court, and the other by the jury, it was an additional reason why they ought not to be allowed to stand together. The defendant contended, in reply, that the issue on nul tiel record to judgments rendered COLEMAN. N. Y. REP.. BOOK 1. in other States, can only be an issue to the country, and that therefore both these pleas must be tried in the same manner. He relied on the case of Walker et al. v. Wilier (Doug- lass, 1). *The court, without giving any opinion [*73 on what was also made a question between the parties, whether nul tiel record was at all plead- able in the case, granted the plaintiff the fol- lowing rule, viz. : Ordered, That only one of the two pleas in this cause be allowed, and that the defendant, within four days after the notice of this rule, do, or in default thereof that the plaintiff may elect which shall be allowed, and that the other plea shall be deemed disallowed. (Vide the case of Carnes v. Duncan, Admr., ante, p. 35.) Overruled 6 Cow., 41. JULY TERM, 1799. BAKER ads. BURNS. Imprisoned Debtor Proceedings for Relief De fective Inventory, a. Arms not specified, b. Possession and Ownership of Articles, c. Im- prisonment on tort. d. Stamped Inventory. T EE moved that the defendant be brought up Jj to take the benefit of the Act made " for the relief of debtors with respect to the impris- onment of their persons. " Mr. Munro, for plaintiff, objected, 1st. That in the inventory served on him the arms of the defendant are not specified in the schedule. 2. That the inventory does not particularize when he owned and had the articles, &c. 3d. That he is confined on a suit for breach of promise of marriage, and that this is to be considered as a tort, whereas the act only applies to contracts. 4th. That the inventory is not stamped. Mr. Lee, contra. *Per Curiam. All the objections are [*74 untenable, excepting the last, but the inventory ought to be stamped, and that objection is fatal. Motion denied. PENDLETON ads. LE CONTE. / 1. Inquest, Motion to set aside Notice of applica- tion for Commission. 2. Ibid. Ibid. Valid- ity of Plea. TSSUE was joined on the 9th of June last, and -L on the 19th, notice was given by defendant that application would be made this term for a commission ; notwithstanding which, on the 26th, the plaintiff gave notice of trial for the July circuit, at which time an inquest was taken by default, Mr. B. Livingston now moved to set it aside for irregularity. 4 49 74 SUPREME COURT, STATE OP NEW YORK. Mr. Harrison, for plaintiff . The defendant having been obliged by the order of last term to elect one of the two pleas, has seen tit to abide by the plea of nil debet ; but no such plea can be received in this action, and it must be con- sidered a mere nullity. The merits of any judgments rendered in a sister State cannot under the act of Congress be examined here. Nul tiel record is the only plea that is admissi- ble. And as to the notice of the intended ap- plication for a commission, it ought not to operate to procure the defendant a delay, for it was his neglect that he had not applied last term. Mr. Burr, in reply. Whether any testimony in- volving merits can be admitted under any plea, 75*] or *whether plea of nil debet is proper in this action, are points not to be tried in this way. The application for a commission is in time, according to rule IX of April, 1796. Per Curiam. Issue not having been joined till after the election was made in vacation, the defendant is in time by the rule of April, 1796. On the other point, we are of opinion that the propriety of the plea is not examinable upon this motion. Let the verdict be set aside, and a commission issue ; the costs to abide tJie event of the suit. HASKINS ad*. GRISWOLD. Demurrer for Delay Leave to Withdraw and to Plead. BURR, for defendant, moved for leave to withdraw his demurrer and plead issuably, on affidavit that he had merits which he did not know of until after he had filed his de- murrer. Mr. Riggs insisted that as the demurrer was frivolous and only put in to obtain delay, the de- fendant ought not now to be permitted to with- draw it. He then read a counter affidavit on the point of merits, showing an acknowledgment on the part of the defendant, subsequent to the commencement of the suit, of the justness of the demand, and a promise to pay it. Per Curiam. It appears upon the face of the demurrer itself that it was frivolous and for the purpose of delay. If a defendant puts in a frivolous demurrer, and then applies to the grace of the court, he shall have none. He has acted unmeritoriously, and shall be held to Minimum, ju*. Tlie defendant must take nothing by hu mo- tion. SWARTWOUT, Manucaptor of SANDS, ads. GELSTON, Assignee of the SHERIFF OF NEW YORK. 1. Retainer and Bail Notice Due Service. 2. Stay of Proceedings on Bail-bond Laches. THIS was an application to stay proceedings on bail-bond. The attorney for defendant in the original suit had given notice of retainer 50 and of bail at the same time, by leaving it at the office of plaintiff's attorney which was kept in his dwelling-house, when no person was present. It appeared that two terms had elapsed before the present suit was commenced. It was insisted, 1st, that the service of notice was regular, and to this point was cited 4 Durn. & East, 464. And 2d, that the plaintiff had been negligent in delaying so long to put the bail-bond in suit. (Barnes's Notes, 103.) Per Curiam. The notice was not duly served. It should have been given to some person in the house. To make a notice good, it must be shown that everything has been done to bring it home to *the party. The service must [*7 7 first be on some person in the office, and be- longing there ; if nobody is there, it must be upon some one in the house where the attorney resides or the office is kept ; and if nobody is there it may be left in the office. But as there has been a negligence on the part of the plaint- iff in not putting the bail-bond in suit at the subsequent term, we will not now fix the bail for the irregularity of the notice, which the prevalence of the yellow fever in the city at the time may in some measure excuse. Let the proceedings stay on payment of costs, and receiving a justification of bail if required. Mr. Wortman for defendant. Mr. Cole-man for plaintiff. WATERS, Sheriff of Orange, ad*. THE PEOPLE. Contempt Sheriff Attachment Personal Knowledge of Execution Delivery to Deputy and Affirmance. THE sheriff was brought in upon an attach- ment, and the plaintiff in the original suit having filed interrogatories within the four days allowed him, and the sheriff having also filed his answers as taken by the clerk, the fol- lowing judgment was entered: Per Curiam. A sheriff is not to be consid- ered as in contempt for not acting on an execu- tion which never came to his personal knowl- edge, or was not lodged in his office. But in this case it appears the ./?. fa. was delivered to a deputy, and* we need not say whether [*78 such delivery be good so as to charge the sheriff himself, because here the sheriff afterwards affirmed the receipt by interfering and acting. He did not return it within forty days, and his answers are not satisfactory. The court adjudge him to pay a fine of twenty dollars for the contempt, and also the costs of the rule and attachment, and to stand committed till the fine and costs be paid. Overruled Cow., 42. IN THE MATTER OF M'KINLEY & CO., absent debtors. Attachment Payment by Surety Supersedeas. UNRO, indorsee of a bill of exchange drawn by M'Kinley & Company, sued out an attachment under the Act passed 4th COLEMAN. M 1799 CANNON, MANUCAPTOR, ADS. CATHCAKT. 78 April, 1786, for relief against absconding and absent debtors, and seized a vessel, the proper- ty of M'Kinley & Co. Afterwards Munro received the amount of the bill from Wheeler, his indorser, but it was agreed between Munro uiid Wheeler, that the proceedings should still o on for the benefit of the latter, and Munro e considered as his trustee. Application was then made on behalf of M'Kinley & Co., to the recorder for a upersedcas, upon the ground that plaintiff, after having been satisfied for his demand, could not still retain the attachment. The recorder allowed the supersedeas, from which there was an appeal from this court. Per Curiam. The 22d section of the act pro- 79*] *vides, "That if any person against whose estate or effects such warrant of attach- ment, shall be issued, shall at any time before trustees are appointed, apply to the judge who shall have issued such warrant, and give such security as such judge shall direct and approve, to the person or persons at whose instance such warrant issued, to appear and plead to any suit or action to be brought within six months thereafter, &c., and to pay all such sums as may be adjudged in such suit or action, then such judge shall issue a supersedeas." And the 23d section provides, ' ' That in all cases where, upon any such attachment or attachments, any ship or vessel, or any part thereof, shall be seized or attached, it shall be lawful for the judge who shall have issued such warrant or warrants, to cause such ship or vessel, or part thereof, so seized or attached, to be valued by indifferent persons; and if any person will give security to be approved of by such judge, to the people of the State of New York, for the benefit of the creditors of such debtor, to pay the amount of such valuation to the trustees to be in such case appointed, then such judge shall cause such ship or vessel to be discharged from such attachment." Although a payment may be equivalent to living the security required by the 22d section of the act, as has been insisted in the argu- ment, yet that certainly must be a payment by the principal debtor, and not by his surety, or one who is collaterally responsible; the appli- cants, therefore, do not come within that sec- 8O*] tion. The next section provides *express- ly that the security shall be given for the bene- fit of all the creditors, and therefore, as the in- dorser here who paid the money, must be con- sidered as a creditor, he has a right to avail him- self of this attachment, and Munro may be con- sidered a trustee for his benefit. If the prosecutor is paid, and the applicants would avail themselves of it, they must resort to their plea. Let tlie order be reversed. S. C., 1 Johns. Cas., 137. Cited in 16 Johns., 14, 164 ; 10 N. Y., 67 ; 3 Barb., 13. OCTOBER TERM, 1799. CANNON, Manucaptor, ads. CATHCART. Costs Special Bail Exoneretur Demand for Costs. IN January Term last, the defendant as special bail was relieved, and an exoneretur COLEMAN was ordered to be entered, on payment of costs. The costs not having been paid, the proceedings went on; and now it was moved by Mr. Burr to have him relieved, on the ground that costs never having been demanded, or a bill exhibited, there was no neglect on the part of the defendant in not having paid them. Per Curiam. The discharge ordered at last January Term was conditional, and it was the duty of defendant to have paid the costs to plaintiff without waiting for a demand or the tender of a bill. If he is relieved now, it must be on payment *instanter of the costs [*81 ordered last January Term, and also the costs of the subsequent proceedings, including the costs of resisting this application. Let Mm take tlie effect of his motion on those conditions. PL ATT v. BOBBINS ET AL., Administrators, &c., of SMITH. Motion for Judgment Pleas Demurrer. A JUDGMENT against Smith in his lifetime had been revived by scire facias against the defendants as his administrators, on which there was a judgment by default. A suit was then brought against the present defendants, suggesting a devastavit, to which they pleaded, I. Plene administravit. II. That the defendants as administrators, did not eloigne the assets. III. That Smith, their intestate, executed before his death, a bond of $50,000 to the United States, which remains unpaid. It was now moved on behalf of the plaintiff in the suit, that judgment be rendered against, the defendants by default, for it was insisted that as to the pleas put in, they were mere nullities. It was said in reply that this was not the regular *method of testing the validity [*82 of pleadings, and that the plaintiff ought to have demurred. Per Curiam. If pleas are not palpably bad, and void upon the face of 'them, the opposite party must resort to his demurrer. All the court have doubts as to one plea, and some of them as to all; and therefore Plaintiff must take nothing by his motion. Mr. Boyd for plaintiff. Mr. Burr for defendant. SALSTONSTALL ads. WHITE. Ejectment Admitting new Parties in interest Lands surveyed and improved. PROCEEDINGS in ejectment for the Hol- JL land Company lands, so called, in the County of Ontario, as for a vacant possession. Mr. D. A. Offden moved that Wilhem Willinck and three others, commonly called " The Hol- land Company," be made defendants, instead of Salstonstall, the present defendant. Mr. Troup, on the same side. Any one what- ever claiming title, may be made defendant, though he has never been in actual possession; and to this point cited Sty., 368; Sid., 24; 51 82 SUPREME COURT, STATE OF NEW YORK. 1799 1 Lilly's Abr., 674; 4 Durn. & East, 122; Comb., 113. 83*1 *Mr. E. Livingston, contra. It is settled that m proceeding for a vacant possession, one claiming title, who is not already a party to the suit, cannot be admitted to defend, but must re- sort to his action of ejectment. He cited 2 Cromp.,191,192; Statute of this State passed 21st Feb., 1788, sec. 29, 30; the first of which sections subjects tenants to penalties for not giving notice to their landlords of declarations of ejectment; and the last of which provides that landlords may be admitted defendants by being joined with their tenants. From which it fol- lows that no case is contemplated by our laws of admitting anyone to come in and defend who is not a party to the original suit, except a landlord who has a tenant in possession. Mr. B. Livingston, in reply. In this case the lands, in judgment of law, are not vacant. The suit is brought to recover several hundred thousand acres, and it appears by the affidavit, that the Holland Company have surveyed the tract, and erected buildings on some part of it. Per Curiam. The strict principles applica- ble to proceedings as for a vacant possession in England, cannot, without manifest incon- venience, be applied to unlocated lands in this country. Besides, here has-been a survey of this land, and buildings have been erected on some part of it. Motion granted. 84*] *BROWN c. MITCHELL. Ejectment Confiscated and Forfeited Estates Improvements Act of May 1, 1786, sec. 10. rpHE leaser of plaintiff recovered at the last JL Dutchess Circuit on title existing prior to 1776, and the defendant set up title derived from the State, under a sale by the commis- sioners of forfeitures, prior to 1782, and under the Act passed October 22d, 1799, entitled, " An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this State, and for declaring the sovereignty of the people of this State, in respect to all property within the same." The Attorney- General, for the defendant, now moved for the appointment of appraisers under the first section of the Act passed May 12th, 1784, entitled, " An Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes there- in mentioned," to ascertain what improvements the plaintiff must pay before he can take pos- session. Mr. Evertson, contra. The act of 1784 cannot apply to sales made prior to it. The Attorney-General, in reply, cited the 10th section of the Act passed May 1st, 1786, entitled, " An Act further to amend an Act entitled, ' An Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes therein men- tioned.' " 85*] *Per Curiam. The act last cited its retrospective, and affects prior titles, and so courts have considered them. Let the defendant take the effect of his motion. GEORGE ad*. BENNINGER. Notice of Argument For Day in Term Objec- tion Waiver. THE court in this case determined, that if a notice of argument is given for any day in term, subsequent to the first, the party who would object to it on that account must appear and state such objection at the time when the motion is brought on; and if he does not, he will be deemed to have waived such objection. DRAKE v. MILLER. Contempt Attachment Certiorari Defeclire Notice of Return Act of January 24, 1797. A JUSTICE OF THE PEACE was brought up on attachment for contempt in not having made return to a certiorari directed to him, and made returnable "before us." Pei~ Curiam. The Act passed the 24th of January, 1797, entitled, "An Act concerning the Supreme Courts," enacts, "That all writs and process to be issued from and after the ex- piration of October Term in the present year, and returnable in the Supreme Court, shall be made returnable before our Justices of our Su- preme Court of judicature," /IOTT ,c,<,;,wi t +v. *i ~f form of sen-ing a subpoena, and under such service I ' 4 being the day assigned for the trial of be subject to attachment. 1 Yeates, 303. I J- the record on which this suit was brought, COEEMAN. 61 122 SUPREME COURT, STATE OF NEW YORK. 1800 Mr. Beers now moved to bring it on, but it was objected for defendant that there ought to have been a regular notice of trial of seven days, as in other cases, which had not been given. The court took time to consider how the practice ought to be settled. Per Curiam. The trial by record must here- after always come on by a motion of four days, instead of the old practice of assigning a time, which the present rules render useless. SWIFT ads. SACKET. LIVINGSTON ads. THE SAME. 1 . Writ of Right Nonsuit Default of Demand- ant. 2. Idem Entry of Attorney's name Misprision of Clerk. Citations-Carth., 173; Co. Litt.,139, b. "DMOTT, for the tenant, moved on the first Jj day of term that the demandants be called, and that for nonappearance their defaults be entered. 123*J *And now, it being the quarto die post, he again moved that the demandant be called to appear and excuse his default, or that he be nonsuited. To shew that this was the correct practice, he cited 7 Viner Abr., 436 and 437 ; D. 9, 10. Mr. Scott appeared for demandants, and without attempting to show any sufficient ex- cuse, read an affidavit that Mr. Thompson was the attorney of record for the tenant; whereas it appeared from the clerk's minutes that the motion had been made on the first day by Mr. Emott in behalf of Mr. Radclift, who, he con- tended, was a stranger to the suit, and could take no rule in it. Mr. FJmott said, in reply, that the motion was really made in the name of Mr. Thompson, but that the mistake was in the entry made by the clerk on the minutes, and must be considered as his misprision, and so could not injure. Per Curiam. It is settled in Carthew, 173 (Clobf.ryv. The Bisfiopof Exon), that the tenant, in a writ of right, is only demandable on the quarto die pout ; but that the demandant is lia- ble to be called on the primo die placiti, and for nonappearance that his default may be en- tered, which, if he does not appear and excuse on the quarto die post, subjects him to a non- suit. (Co. Litt., 139, b.) At common law, on every continuance or day given at or before iudgment, the plaintiff or demandant might have been nonsuited, and before the Stat. of 2 Henry IV. after verdict, if the court gave a day 1 24*] to be advised, at *that day the plaintiff was demandable, and therefore might have been nonsuited if he did not then appear ; but that is remedied by our Statute. After award to answer, however, or demurrer in law joined, plaintiff for not appearing shall still be non- suit, for he is not helped by the Statute. As to the misentry of the name, it is to be considered as the clerk's misprision and may be amended. Judgment of nonsuit. 62 EDWARDS ads. M'KINSTRY. Default Motion to Plead on Affidavit of Merit? only. ON a motion to set aside a default, and that the defendant have leave to plead, on the sole ground that he has merits, the plaintiff not having lost a trial, the court said : When a party swears to merits, the court will strongly incline to let him in, but he must be able to suggest some excuse for not having pleaded ; such, perhaps, as accident or inad- vertence. Here the defendant does not attempt to give any reason at all, and therefore he must take nothing by his motion. LARROWAY ads. LEWIS ET AL, THE SAME ads. VAN LOON ET AL. Attachment Costs of Continuance Notice of Taxation On Council only. 1 Salk., 83, not approved. VAN VECHTEN moved to set aside the at- tachments which in these two cases had *been granted for costs of putting off [*125 the trials, and that there be a retaxation. He contended that attachments are ordinarily granted on rules to show cause, and are never made absolute in the first instance, but in very flagrant cases ; and that if the party answer he shall be discharged from the attachment ; and cited 1 Bac. Abr., 183, B; 2 Hawk. Plea. Cr., 214. He further insisted that there must be a demand made of the costs after the bill has been regularly taxed, and at the time of serving the rule to show cause, before the party can be considered as in contempt. He cited 1 Barnes, 120; 1 Lilly's Abr., 162. Besides he insisted that according to 1 Salkeld, 83, no attachment will lie at all for the costs of putting off a trial. Mr. C. Elmendolph, in reply, contended that in England the attachment is always absolute in the first instance. He cited Tidd's Pr., 364; Runnington on Ejectment, 142 ; 1 Sellon, 415. Per Curiam. Whenever a cause goes off on motion of the defendant upon payment of costs, the plaintiff has his election, either to wait the event of the suit, and have all his costs taxed together, or he may make them out in- stanter under the direction of the court (sub ject, however, to be reviewed on a future tax- ation if required), and demand them immedi- ately, and if not paid he may proceed with the trial ; or he may waive this privilege and resort to his attachment, but if he does *so, [*126 he must first have his costs regularly taxed on a proper notice as in other cases, and that no- tice must be served on the attorney in the suit, and not on the counsel, as it has irregularly been in this instance. Had he done this he- would have been entitled to his attachment in- stantly, without a previous notice. The notice in this case having been served on counsel, and the taxation having been made the same day notice was given, the taxation and and all proceedings founded on it were irreg- ular. COLEMAN. 1800 SEELY v. SHATTUCK. As to the case mentioned from Salkeld, it is anonymous and stands alone ; we lay no weight upon it. Let the attachment be set oxide with costs. SEELY t. SHATTUCK. Rule to join in Error on Hearing ex-par te Next Term passed. ON certiorari. Notice of the rule for the de- fendant to join in error in eight days, or that the plaintiff would be heard ex-parte, had been served in April vacation, 1798, and it was now moved for affirmance. Per Curiam. The rule is gone ; the plaintiff should have applied the term after service of the rule. He cannot lie by in this manner and revive the cause at any distant period he may choose. He must 'now take nothing by his motion. 127*] *HORNBECK ads. LOW. Making Case Enlarging Rule Making Amendments. PER CURIAM. The two days allowed by -T the sixth rule of January Term, 1799, for making a case, cannot be enlarged by a judge in favor of the party making the case ; but the time which may be enlarged under that rule, is that allowed for proposing amendments, and that for notifying an appearance before the judge, and no other. GIBBS ads. SCOTT. -Impartial ciency of Plaintiff's Affidavit. Citation 3 Burr., 1330, 13*5 ; 1 Scllon's Prac., 269. THIS was a motion to change the venue in an action of slander, from the County of Albany to Washington, founded on the affi- davit of the defendant's attorney, stating that the cause of action arose in VVashington and not elsewhere, &c., as the plaintiff had informed him, and he verily believed to be true. On the part of the plaintiff this was opposed by a counter affidavit, stating that " according to his persuasion and belief, he could not have an impartial trial in the County of Washington by reason of certain local prejudices." Per Curiam. The first question is, whether the affidavit on the part of the defendant ought not to have been made by the defendant him- self, according to the established practice. As the attorney swears, however, that the plaintiff 128*] confessed to *him that the cause of action arose in Washington, and not elsewhere, &c., this may be deemed sufficient ; especially as the fact is not denied by the plaintiff. As COLEMAN. to the counter affidavit, it cannot avail to retain the venue, inasmuch as the defendant only swears to "his persuasion and belief that he cannot have a fair trial, by reason of certain local prejudices, &c. He ought to have stated the reasons and ground of his belief, and have laid before the court the facts and circumstances on which it depends, that they might judge of its probable truth and force. He merely states his own conclusions, without stating also the premises on which his belief is grounded (Vide 3 Burr., 1330, 1335; 1 Sellon Prac., 269.) Motion granted. HOYT AND BENNETT v. CAMPBELL. 1. Argument Term passed by Plaintiff Right of Defendant to Notice Cause. 2. Idem Service of Notice No Agent at Albany. IN error on certiorari. The cause was at issue in law in July vacation, 1799, but the plaint- iff's attorney suffered October Term to pass without having noticed it for argument. The defendant's attorney then served a notice to argue the cause in January Term. Neither the plaintiffs or their attorney, or any counsel for them, appearing on the notice, judgment of affirmative passed against them as of course. The plaintiff's attorney residing in New York, and not having an agent in Albany, the service of *the notice was by affixing it in the [129 clerk's office there, and it did not, until shortly before the last term, come to his knowledge, either that the notice had been served, or that judgment of affirmance had passed, and in the meantime the plaintiffs, on being informed of the judgment, either by the defendant or his attorney, paid the costs on it, and also settled as to the demand against them in respect to the suit in the court below before the justice. On these facts, the plaintiffs moved in the last term to set the judgment aside, submitting two questions to the court : first, Whether the de- fendant was entitled to notice the cause for argument; and if the opinion of the court should be against them on this question. Then, secondly, Whether under the circumstances of the case, the judgment may not be set aside in order to give them an opportunity to avail themselves in this court of their causes of error, if they can support them. With respect to the first question it is to be stated, that heretofore, in all cases where there was not to be a decision by the court, until there had been previously an argument be- tween the parties, being, except motions to set aside proceedings, the same with our present enumerated motions or cases, the arguments were in writing, and if either party delayed for a term to deliver in an argument, the opposite party took a rule against him to argue by the next* term or be precluded, and on his default the court would proceed to examine and decide *the cause on the arguments as they [*13O then were, or if there had not been any argu- ment delivered in by the party in default, then on the ex-parte argument to be thereafter prepared and delivered in by the party who had taken the rule ; as, for instance, in case of a writ of error, if after the parties were at issue in law, 63 130 SUPREME COURT, STATE OF NEW YORK. 1800 the plaintiff delayed, then the defendant would take a rule against him ; if the plaintiff had de- livered in his argument, he would take a rule against the defendant to argue in answer ; if the defendant had delivered in his argument, he would in this last case take a rule against the plaintiff to argue in reply, and on the de- fault of the respective parties, the court would, in the first case on the'ac parte argument of the defendant, and without any argument on the part of the plaintiff, in the second case on the argument delivered in by the plaintiff, and without any argument on the part of the defendant, and in the third case on the argument delivered in by the plaintiff, and the argument in answer delivered in by the de- fendant and without any argument in reply by the plaintiff, take up the cause for examination and decision; but the practice of making de- cisions or adjudications on ex-parte arguments or hearings being now wholly done away, and the substitute for it being, that every party is apprised that from his default to appear and argue, or, in other words, to suggest generally at least the principles of his right, he will be presumed to have renounced it, and so to have consented to what is claimed against him, and and that judgment will thereupon pass for the 131*] opposite party as of *course, the law will therefore, from the necessity of the thing, imply that there must be a mean for a party whereby he may still have it in his power to prevent his opponent from delaying on his part to bring the cause before the court for their opinion, and the one which the defendant has taken in the present instance, of proceeding by a notice of a motion, in the nature of a rule to set the cause down for argument, being equally tit and advisable with any other to be adopted or provided as a substitute for the former prac- tice of proceeding by the rule of preclusion, and the plaintiffs, the party entitled in the present case to open or begin, having delayed for a term to notice the cause for argument, it must be adjudged regular in the defendant for him then to notice it. The plaintiff's motion, however, as far as it rests on an irregularity in the defendant, con- sisting in a supposed want of right in him to notice the cause for argument, may be decided against them on this ground, namely, that not- withstanding a notice may be irregular or de- fective, or in any other respect improper, yet if there has been a due service of it, the party on whom it has been served, must appear to oppose the motion, otherwise, as has been al- ready stated, his consent to it, or a renuncia- tion of his right to oppose it, will be presumed from his absence or silence equally as if the notice had been perfect, and the motion proper in the case ; and that it is not to be expected the court will, without the appearance and sug- gestion of the party, examine farther than to 1 32*] IMJ *satisfie(i there has been a competent service of the notice, comprehending as well the manner as the time of service. Indeed, the in- tent of the 7th rule of January Term, 1799, was, that there might in future be a clear un- derstanding on the whole of the subject to which this first question relates. With respect ts the second question, it will suffice to observe, that although there was a sufficient service of the notice, yet it did not come to the knowledge of the plaintiff's ajtor- ney until after the defendant had obtained the effect of it ; so that there doubtless will have been an hardship on the plaintiffs, if the sub- stantial justice or real merits of the case is wiih them, and if there is a reasonable excuse for their attorney in not having an agent in Albany at the time, but as these matters have not been shown to the court, they cannot interpose. Tlie plaintiff*, therefore, are to take nothing by their motion, and to pay costs to the defendant in opposing it. B. PALMER e. SABIN. 1. Argument Term passed by Plaintiff Right of Defendant to Notice Cause Costs not paid. rpHE like facts in this cause, except that it J- does not appear that the plaintiff has set- tled with the defendant for the demand in the Court below, and the costs on the affirmance have not been received from the plaintiff, "he being unable to pay them ; and any other ex- pense or trouble about the suit would be a dead charge against the *def endant ; " this [* 1 33 fact, however, not making any material differ- ence, the same judgment therefore in this cause. B. BROOKS v. PATTERSON. Attorney at law Pi'ivilege Abandonment of Profession. THE defendant pleaded in abatement his privilege as an attorney of the court; the plaintiff replied, "That on the day of exhibit- ing the bill and for a long time before, to wit, for the space of one whole year, the defendant had entirely ceased to practice as an attorney of this court, and had wholly abandoned the profession, business, practice and calling of an attorney of this court," &c., demurrer and joinder in demurrer. The court held the replication sufficient to oust the defendant. NEWKIRK ET ux. t. FOX. Stay of Proceedings Neglect to Prepare Case Absence of Judge. VAN VECHTEN moved to discharge a judge's certificate staying proceedings, be- cause the defendant had neglected to prepare his case within the two days allowed. It was said, in answer, that the reason wan because the judge left the place where the cir- cuit was held so soon after an application to him that it was not possible to have the case completed. *Pe,r Cnriam. As no reason has been [* 1 34 assigned for the subsequent omission, the de- fendant appears before the court without a sufficient excuse. Motion granted. COLEMAN. 1800 SHARP v. DUSENBURY. 134 SHARP v. DUSENBURY. Inquest Before Sheriff by Consent Rulings ori Evidence. PW. YATES moved to set aside interlocu- . tory judgment, because the sheriff before whom the inquisition was taken had admitted improper and rejected proper evidence. Mr. Emott, on the other side, read an affidavit that it had been agreed between the parties that any evidence might be given before the sheriff which could be given on a trial or could have been pleaded. And he now contended that such agreement ought to preclude either party from making objections to the conduct of the sheriff, provided no corrupt intention was to be imputed to him. Per Curiam. "When parties agree to submit a controversy to the decision of the sheriff, the inquest is to be considered as in nature of an arbitration, and therefore the court will never set aside the inquisition merely because the sheriff admits improper or rejects proper evi- dence. Motion denied. 135*] *BEEBE ads. PADDOCK. Notice to Attorney's Clerk Tf here Served. A QUESTION arose as to the regularity of a XJL service of a notice, which appeared from affidavit to have been made on the clerk of the attorney; the court decided, that as it did not also appear that the notice was served on the clerk while he was in the office, it was there- fore insufficient. THE PEOPLE, at the relation of ALLAIRE, v. THE JUDGES OF WESTCHESTER. Mandamus Contempt. ON affidavit that a bill of exceptions had been regularly tendered to the judges of the Oourt of Common Pleas of the County of Westchester, who had refused to complete the same, a motion was now made for a mandamus to compel them to affix their seal to the bill of exceptions, or show cause. Mr. Munro, for cause, read a counter affidavit, stating that the bill of exceptions varied mate- rially from the truth of the case. Per Curiam. If a court of common pleas refuses, without sufficient grounds, to annex their seal to a bill of exceptions, it is a con- tempt for which this court will award com- pulsory process. But it appears here from the affidavit on the part of defendants, that the bill of exceptions which was tendered was untrue, 136*] and as the party making the *applica- tion has not denied the correctness of the state- ment, he must be considered as having con- sented to it. This undoubtedly was sufficient cause for refusal. Motion denied with costs to the judges for op- posing it. OOLEMAN. N. Y. REP., BOOK 1. JENKINS v. KINSLEY. Trial On Record Authentication of Record of Federal Court in Another State. ON a trial by record of an action brought upon a judgment rendered in the Circuit Court of the United States for the Common- wealth of Massachusetts, office copies were offered in evidence. Mr. Williams, for the defendant, objected that there ought either to be an exemplification of the record; or that, the action being brought in a court of this State, upon a record of a judg- ment rendered in a circuit court in Massachu- setts, the record ought, agreeably to the act of Congress, to have the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form. Per Curiam. This being a record of a court of the United States, and not of a State court, and so not within the act of Congress prescrib- ing the mode in which the records and judicial proceedings of the courts of any State shall be authenticated, it remains with the court to de- cide upon the *sufficiency of the evi- [*137 dence in their discretion. The mode of certi- fying a record observed in the present instance, being the ordinary method in the Common- wealth of Massachusetts, instead of the technic- al exemplification, the court are of opinion it is sufficient. WARDELL . EDEN. Satisfaction of Judgment Vacating Fraudulent Entry. A BOND had been execnted by Eden to War- dell conditioned for the payment of $50- 000, which on the 17th of July last was as- signed for a valuable consideration to Nathan- iel Olcott, and by him on the 1st of August to Solomon Rowe, and by him on the 7th of October to the Bank of New York. On the 7th day of October, Olcott became a bankrupt, and on the next day Rowe died insolvent. The bank immediately gave notice to Eden of the assignment to them, and forbid his paying any part of the bond to Wardell, and gave a notice likewise to Wardell, forbidding him to receive anything from Eden. On the day of Oc- tober, notwithstanding the notices above, Eden paid Wardell a small sum of money, $1,500, and thereupon Wardell entered upon the record satisfaction of the judgment. It appeared that the bond was originally given both for money due, and to secure such further sums as Wardell should continue to advance. Mr. Hamilton and Harrison, on the statement of the above facts, now moved that the entry of satisfaction *be struck out, on the two [*138 grounds of irregularity and of fraud. Mr. B. Livingston raised a preliminary ques- tion, whether the service of the notice of the pres- ent motion had been regularly made, as it had only been given to Eden's brother who hap- pened to be at Eden's house, and it did not ap- pear that it had ever come to his personal knowledge ; or, secondly, as it had been given to Eden's attorney, by leaving it with his (the 5 65 138 SUPREME COUKT, STATE OF NEW YORK. 1800 attorney's) brother, who happened to be alone in the office. Per Ouriam. Both services cannot be good ; wherever there is an attorney retained, the service must be on him ; therefore the service on Eden himself was irregular, but the service on the attorney's brother being in his office, was good. Lansing, Ch. J., and Lewis, J., were of opinion that the attorney in this case being constituted only an attorney to confess judgment, his authority expired with that act, and therefore he could no longer be considered as attorney in the suit, but they both agreed that the service on Eden was well made. Mr. B. Livingston then, before the counsel for the bank proceeded in the argument, read counter affidavits contradicting some of the principal facts contained in the affidavits on the part of the application. The counsel for the bank contended, that in 139*] this transaction a fraud had been practiced between Eden and Wardell on the bank, by entering up the satisfaction after no- tice, which must have been done to defeat the lien, which the judgment had given the bank upon Eden's real estate. They now, therefore, appeared before the court for the purpose of getting that entry of satisfaction vacated, and strongly insisted, 1st. That the entry of satis- faction was irregular, because it was done by the party himself, and not by his attorney. They said that although by statute a party might possibly "appear, prosecute, defend, &c., in person," yet that after he had once made an election to appear by attorney, he could not be known in the suit in person. 3d. That not- withstanding the form of pleadings was still preserved, and suits are still instituted in the names of obligees, yet that courts of law will always take notice of the rights of assignees, and protect them from injury, so that substan- tial justice shall be done between the parties. To show that this had been done, and to what length courts of law have gone, they cited 1 Durn. & East, 619 ; 4 Id., 340. And to show that the court may interpose in this summary way, and lay their hands at once on the judg- ment, without turning the applicants round to a court of chancery, they cited Viner Abr., tit. Judgment, letter K., a. 636, 4, 5, 6. Or if there should arise any doubts about the facts alleged, the court might on this motion direct an issue. 1 Wilf., 331; Sayer, 253, Barnes's notes, 136. The Attorney- General and Mr. B. Livingston, contra. 14O*] *They said that this was a novel way of bringing up such a question, and that really neither of the parties to the suit were in court. But they insisted, I. That it was perfectly regular for the party to enter up the satisfac- tion himself, and denied that it was either the province or the duty of the attorney to do it ; that the very form of his warrant showed this, for l>eing merely to prosecute and defend, the entering up satisfaction of the judgment could not be considered as being comprised within his powers. (1 Sellon's Prac., 14 ; Sayer's Reports, 217; 2 H. Black., 608.) They said that by the practice of courts, warrants of at- torney are in force for one year and a day, for the sole purpose of enabling the attorney to 66 sue out execution (Bac. Abr., 299); that the general warrant of attorney only extends to judgment and execution, and that there ought to be a special warrant made out for the pur- pose of authorizing an attorney to enter satis- faction, which might be made to the attorney who had conducted the suit, or to any other. (Sir Thos. Raymond, 69 ; 1 Cromp. Prac., 378 ; Sellon, 546 ; Impey, 408.) They observed that the doctrine contended for on the other side, viz., that all acts relating to a suit after it was instituted must be done by the attorney, could not be true, inasmuch as it was settled law that a retraxit must be always entered by the party himself, and could never be done by at- torney. (2 Sellon, 338; 3 Salk., 245; 8 Mod. Rep., 58; 3 Black. Com., 296.) As to the second point, that courts of law will always take notice of the rights of as- signees, they *said this could only be [* 141 sub modo, for that choses in action were only assignable by way of covenant. That they might possibly form a consideration for an as- sumpsit, and if so, the original instrument is gone, the demand becomes a personal one, and the action must be brought upon the promise ; if not, then the plaintiff must always resort to a court of equity. (2 Bl. Reports, 821 ; 4 Durn. & East, 341, 640.) They insisted further, that at any rate this was not the proper method for the plaintiff to procure a remedy, by va- cating the judgment on motion. The law in such case would oblige a party paying money after notice to pay it over again, and the de- mand, therefore, from the time of notice, is purely a personal one. (1 Douglass, 238 ; 6 Durn. &East, 361.) Courts of law, they said, never vacate a judgment for fraud, but only for irregularity, or in cases of legal disability, such as of an infant, feme covert, or a person under duress, where the instrument is void- able. (1 Sellon, 377.) At common law the remedy was by action of deceit, and if it hap- pened subsequent to judgment, by andita que- reln. In cases of fraud or other controverted facts, an issue is always to be directed. (Cowp., 727.) But if this motion should suc- ceed and an entry be made vacating the judg- ment on the ground of fraud, and afterwards a jury, whose exclusive province it is to judge of fact, should find the fact differently, then, the record would be at variance with itself. Here, however, it would be improper in this court to direct an issue, for the Court of Chan- cery is the proper forum for that. Why can- not the plaintiffs proceed by scire facia*, on the *judgment in the name of Wardell [*142 against Eden, when the pleadings would af- ford an issue of fraud or no fraud, to be tried by a jury? As to the notice of the assign- ment, BO much relied on, they contended that the farthest the court could go as to notice to assignees, would be to put them on the same footing with indorsers of bills of exchange, and there it was not only necessary to give no- tice, but to add that the'indorser was looked to for payment; no such thing was pretended here. They therefore insisted that the appli- cants had failed, both on the ground of sub- stantial facts, and in the method taken to obtain relief. It was strenuously insisted that the remedy in such case is by resorting to a court of chancery. COLEMAN. 1800 WAKDELL v. EDEN. 142 Messrs. Harrison and Hamilton, in reply, said this was the only way that the plaintiffs had to secure the property from being placed entirely beyond their reach, and that although a scire facias should be brought as suggested on the other side, yet that they could have no secu- rity for satisfaction of their judgment in the event of their recovering one. That as to the instance of a retraxit which had been cited as militating with the principle they contended for, it did not apply, for the attorney is to prosecute the suit for the ends of obtaining satisfaction, but a retraxit is not a prosecution for such end ; it is entering a bar to the suit without having received satisfaction. That it is important that attorneys should make the entry of satisfaction, as it would guard the court against fraud, for the court can always know its own officers, but cannot be supposed 1 43*] to know the party. *They denied the position that courts of law could vacate judg- ments for irregularity only, and relied upon the case of the quare impedit cited from Viner, where a judgment was vacated on the ground of fraud, not, they admitted, by motion, but they said must depend on the extension of that form of practice of late years. They said that they should not dissemble, but that where the facts were disputed there might be some doubt as to the mode; perhaps the directing of an issue might be the most advisable method; but in the mean time that the judgment ought to be considered as remaining unsatisfied, yet not subject to any new liens. That as to send- ing the plaintiffs to a court of chancery, it was objectionable, I. Because although a court of chancery will not interfere where the party has a remedy at law, yet the converse of the proposition is not true; II. Because it will COLEMAN. be to turn a legal lien, which the plaintiffs have, into a mere equitable lien. III. Be- cause if there is a remedy at law, chancery will refuse to relieve. They therefore prayed that their application might be granted . Cur. ad milt. On the last day of term, BENSON, J., de- livered the following order as the opinion of a majority of the court; LANSING, Ch. J., and LEWIS, J., dissenting: "On reading and filing the affidavit of Martin S. Wilkes and the papers thereunto annexed, on the part of the President, Direct- ors and Company of the Bank of New York, claiming to be assignees of the judgment in this cause, and the affidavit of *the said [*144 Joseph Eden and the papers thereunto an- nexed on the part of the said Joseph Eden, "(h'dered, That a vacatur of the entry of satisfaction of the said judgment be entered on the record, and a minute thereof made in the book of dockets of judgments. Provided, that the said President, Directors and Com- pany shall not cause a sdre facias or any writ of execution to be sued, or a suit in debt to be brought on the said judgment, until they shall have further applied to the court, and it is to be understood also that the said Joseph Eden may at any time apply to the court that the entry of satisfaction may be deemed un- vacated, or that satisfaction be entered anew on the said record, and the court will on such future applications of the parties respectively take such order as shall be just; and it is further ordered, that the clerk cause a copy of this rule to be annexed to the said record." S .C., 2 Johns. Cos., 121. Affirmed 2 Johns. Cas., 258. See 1 Johns. Rep., 530. Cited 13 Johns., 22 ; 19 Johns., 52 ; 6 Hill., 239 ; 66 Barb., 243 ; 14 Hun, 474 ; 3 How. Pr.. 388 ; 13 How. Pr., 27 ; 37 Howard Pr., 3 ; 2 Code R., 5 ; 6 Pet., 657. 67 REPORTS OF CASES OF PRACTICE DETERMINED IN THE SUPREME COURT OF JUDICATURE STATE OF NEW YORK, FROM APRIL TERH, 1794, TO NOVEMBER TERM. 1805, BOTH INCLUSIVE. TO WHICH IS PREFIXED KULES AID ORDERS OF THE COURT TO THE -STE-A-IR 18O8. RULES OF THE SUPREME COURT. [See page 31 for former rules.] 16*] *OCTOBER TERM, 1802. ORDERED. That when the plaintiff stipu- lates to bring his cause to trial, he shall, within twenty days from the time of demand made, pay to the defendant the costs ordered to be paid thereon; and if the same be not paid within that time, on demand and on service of a certified copy of the rule to pay costs and the taxed bill, the defendant, on filing an affi- davit of such demand and nonpayment, may, after the expiration of the said twenty days, enter judgment as in case of nonsuit, as of the preceding term. JANUARY TERM, 1803. ORDERED. That every attorney, when he gives notice of the argument of any enu- merated motion, shall furnish the clerk resid- ing in the city where the court is held, with the date thereof, who shall, by the first day of the term, make a calendar of all causes which may be noticed, according to such dates. Causes of the same date shall be placed on the calendar in the order in which they are re- ceived by the clerk. Each cause shall be argued according to its standing on the calen- dar, if the party entitled to bring it on be ready, otherwise it shall lose its preference, and not be called on again until all the others are disposed of. The attorney of either party .may give notice of the argument. If any cause be inserted in the calendar during the term, it 17*] shall *not take place, whatever may be its date, of any other cause on the calendar at the opening of the court. ORDERED FURTHER, That to every case there shall be added a note of the questions to be made, and to them the argument shall be confined; if, however, any facts in the case give rise to other questions, these also may be argued, unless the adverse party object that these are facts not appearing material to a dis- cussion of such new questions, in which case they shall be abandoned, or the case be re- ferred for amendment, if the court shall think it necessary. NOVEMBER TERM, 1803. ORDERED. That every person who shall have regluarly pursued juridicial studies COL,. AND CAINES. under the direction or instruction of a profes- sor or counselor at law within this State, for four years, or shall have been admitted to the degree of counselor at law in any other of the United States, and practiced as such for four years in such State, shall be admitted as coun- sel in this State; and that the second rule of October Term, 1797, be annulled. Ordered, That in future the days for non- enumerated motions be Monday and Thurs- day in the first week of term, and Friday in the second week. *NOVEMBER TERM, 1804. ORDERED. That every person who hath been or shall hereafter be admitted to the degree of attorney of this court, and practiced as such for three years, shall be admitted to practice also as counsel in this court; and that the third rule of October Term, 1797, as far as the same is repugnant hereto, be repealed. FEBRUARY TERM, 1805. ARDERED. That in future only the oath of W office be administered to persons admitted as counsel or attorney in this court. Ordered, That in error 'on certioran under the ten-pound Act, the plaintiff be entitled to have taxed against the opposite party, only for a general assignment of errors, special assignments being unnecessary, as the court is bound to decide on the merits and overlook the defects of form. Ordered, That hereafter the defendant shall not try a cause by proviso, without a previous rule for that purpose, to be granted by the court, on the usual notice. * AUGUST TERM, 1806. ORDERED. That hereafter no person, other than a natural born or naturalized citizen of the United States, shall be admitted as an attorney or counselor of this court. RULES OF THE SUPREME COURT. 1800 2O*] *BlLL8 OP COSTS SETTLED BY THE JUDGES TO SERVE AS PRECEDENTS. Costs on Confession of Judgment out of Court. Retaining fee ..... Warrant of attorney Filing warrant of attorney Drawing declaration, folio 4 - - Copy to file - - - - ' - Copy for defendant's attorney '- ' Filing declarations - Copy of oyer to file and filing Copv for defendant's attorney - Motion and rule for judgment Term fee ...... Drawing record, folio 4 - Engrossing same, including declara- tion and plea, folio 10 Drawing up judgment and entering on roll ..... Notice of taxing costs, copy and ser- vice ...... Copy of bill of costs for defendant's attorney - Taxation and attendance - Signing roll ..... Filing roll ...... 21*] *Docketing judgment Drawing execution, folio 4, engross- ing and seal Return and filing - - - - DEFENDANT'S COSTS. Warrant of attorney - - - - Filing warrant of attorney - Drawing common bailpiece, folio 2, engrossing and filing - Drawing plea, folio 2, copy to file and filing ..... Copy for plaintiff's attorney and ser- vice ...... Term fee Certifying costs Attendance on same $3 62* 12* 12* 75 25 25 12* 37| 25 75" 1 25 1 12| 25 75 75 25 m 25 1 87| 25" $0 12*. 12* 75 62* 62* 50 25 Costs on Judgment by Default, and on Assess- ment of Damages. Retaining fee - - $3 62* Warrant of attorney - - - 12| Filing warrant of a'ttprney - 12* Drawing capias, folio 3, engrossing and seal 1 06i Clerk entering return and filing writ 12* Sheriff's fees Term fee 62* Crier's fee 21| Motion for body and rule - 81 Drawing declaration folio Copy of declaration to file and filing 22*] *Motion and rule to plead 81 Copy of declaration for defendant's attorney and serving with rule to plead - Drawing affidavit of service of dec- laration and notice of rule to plead, folio 2 - 371 Copy to file, filing and taking affi- davit 37i 74 Reading and filing affidavit - Drawing recognizance-roll exclusive of declaration, folio 5 Engrossing same and filing - Clerk searching for bailpiece and fil- ing roll Motion and rule to enter default - Term fee - Motion and rule for interlocutory judgment Motion and rule that clerk assess damages Notice of assessment on defendant Clerk's fee on assessment Brief and fee on assessment of dam- ages - - - - ' 7 ' Clerk reading and filing report Motion for judgment and rule ti Drawing roll, folio 4 - Engrossing the same with pleadings, folio Copy of costs for defendant and no- tice of taxing - ... Taxation and attendance Signing and filing roll, and docket- ing judgment .... Drawing testatum execution, folio 6, engrossing and seal Return and filing - $0 21| 25 75 62* 75 25 1 00 2 62* 25" BH 74 1 00 75 62} 2 00 25 CosU on a Trial at the Circuit or Sittings, and Judgment thereupon, in the Supreme Court. Retaining fee $3 62* Warrant of attorney - - - 12*. *Filing warrant of attorney [*23] - 12^ Drawing capias, folio 3, engrossing and seal - 1 06* Clerk entering return, and filing writ 12* Sheriff's fees - Motion and rule for body - - - 81 i Term fee 62*. Crier's fee 21J Drawing declaration, folio Copy of declaration to file, and filing Motion and rule to plead - 81 Copy of declaration for defendant's attorney and service with rule to plead Copy of oyer for defendant's attor- ney and copy to file and filing - Drawing notice of rule to plead - 25 Drawing affidavit of service of copy of declaration and notice of rule to plead, folio 2 - Commissioner taking affidavit - 12* Reading and filing affidavit 2l| Drawing recognizance-roll, folio 5, and engrossing same Clerk searching for bailpiece and fil- ing recognizance-roll - 25 Notice of trial for judge - - 25 The like for defendant - 25 Note of issue for clerk and service 37* Drawing issue-roll, folio 4 - - 75 Engrossing the same with pleadings, folio Drawing nisi prius record, folio 4 - 75 Engrossing same with pleadings, folio COL. AND CAINES. 1803 RULES OF THE SUPREME COURT. 23 Clerk filing issue-roll and sealing nisi prius record - Drawing venire, folio 4, engrossing and seal Sheriff's fees and return Drawing subpoena, jfolio 4, engross- ing and seal Drawing ticket, folio 3 - 24*] *Entering cause in judge's book Filing nisi prius record - Motion and rule that cause be made a remanet Filing venire - - - - [ - Copies of ticket, folio 3, each V Motion for leave to try cause - If inquest be taken by default, then motion that the same be entered Clerk entering default in such case - Clerk entering return of venire, and that plaintiff have leave to pro- ceed to trial - Calling and swearing jury Swearing witnesses Reading writings in evidence - Swearing constables < - * : - Docketing roll Drawing tenlatum execution, folio 6, engrossing and seal Return and filing - 25 37i 12| 37| 56i 25 12i 81 m 25 25 2 50 1 50 3 75 1 50 1 12 75 25 75 25 m 25 2 00 25 26*] *NOTES RELATIVE TO THE TAXATION OF COSTS. IN August Term, 1803, the court adopted the following construction as to the taxation of costs, where the sum recovered was not above 100, under the fourth section of the act con- cerning costs: 1. That no charge be allowed for services, or compensation where the same do not in fact exist in this court, but are exclusively appro- COL. AND CAINES. priated to the courts of common pleas; as, for instance, the charge for plaints, and the judge's and recorder's fees. 2. That no charge be taxed, unless a like charge for a like service would have existed and been taxable in the courts of common pleas; and therefore, for example, no circuit record is taxable in such case. 3. That for a recognizance-roll there be allowed one dollar and fifty cents, exclusive of twenty-five cents paid to the clerk for the entry thereof. In November Term, 1803, tire judges agreed that sheriffs were entitled to the following fees: For summoning a struck jury - $ 1 87^ For a view - - 1 871 For each day, and for going and re- turning - - - $1 25 per day Venire and return 1 12 On a writ of right, for summoning four electors - - - - 1 00 *Going to the Supreme Court with [*27j and returning - - - ' { ' $3 per day Summoning recognitors - 1 00 Returning each process - - - 12 A brief is allowed in all cases of special mo- tions, or arguments to be made or opposed by counsel. The recognizance-roll is to include the declaration, and the whole is taxable. (See 2 Lilly, 521; 2 R. K. B., 316.) In April Term, 1800, it was decided that one taxation of costs, in the fee bill, meant that in the cases where the plaintiff might consolidate, and yet proceed separately, he shall have costs taxed but in one suit, and may elect the suit. It was also decided that the plaintiff was not entitled to charge for entries on the roll until after issue or judgment. In November Term, 1804 the following directions were given to the clerks, relative to the taxation of costs: 1 That where the defendant proceeds in a suit, he must add the judgment to the issue- roll filed by the plaintiff, and is not to be allowed the taxation of a new issue-roll unless in the opinion of the clerk or a judge a new issue-roll was necessary. 2. One brief only for trial or argument is to be taxed, though they do not come on accord- ing to notice. 3. A certificate of pursuing special plead- ings and entries may be given by any counsel, and is not confined to the counsel employed in the cause. 4. When a counselor is in partership with an attorney, he shall not certify as to special pleadings and entries, if both their names ap- pear as attorneys on record. *5. An admission in writing by the [*28 opposite counsel, as to special entries, &c., shall be equivalent to a certificate. 6. The clerk may charge nine cents for fil- ing a note of issue. 7. The expense of entering satisfaction can- not be taxed in the plaintiff's bill of costs. It was ordered in February Term, 1805, that in error on wrtiorari, only one general assignment of errors should be taxed. This was taxed by one of the judges, at 4 folio. In November Term, 1805, paper books de- livered to the court on a motion in arrest of judgment were allowed to be taxed. 75 RULES OF THE SUPREME COURT. 1796 In May Term, 1806 (1 Johnson, 312), it was decided that the crier's fees for ringing the bell, and calling the action at circuits and sit- tings, were to be taxed. In November Term, 1806 (2 Johnson, 107), it was decided that the expenses of suing out a commission, to examine witnesses, such as the affidavit, notice and motion, drawing, en- grossing and sealing the commission, &c., were to be taxed; but that none of the ex- penses of executing the commission could be taxed. In the case of Jackson, ex dem. Leicis et al., against Boyd, submitted to the Chief Justice for taxation August 21, 1806, he decided, 1. That if a cause be noticed at the circuit, and goes off for want of time, the costs must decide the event of the suit. 29*] *2. That exemplifications and copies of records, maps, &c., are not taxable against the opposite party. (See 2 East, 259.) Cases made for the argument of a cause are not taxable under the act for regulating fees, &c. (See 2 Johnson, 108.) If several suits be consolidated, and more than $250 be recovered on the leading suit, and less than that sum on the others, the plaintiff will not be entitled to Supreme Court costs in the latter. (See 1 Caines, 66.) If a suit be compromised between the parties without the knowledge of their attorneys, and nothing be said about the costs, each party must pay his own costs. (See 1 Caines, 66.) 3O*] *SURRENDER OF BAIL. IN April Term, 1796, the judges adopted the following forms and rules of proceeding, on the surrender of bail: 1. Two certified copies of the bailpiece must be made out by the clerk in whose office it is filed, on one of which the judge indorses the following committitur : " The defendant, on the prayer, and for the indemnity of his manucaptors. is committed to the custody of the sheriff of , at the suit of the plaintiff in the plea above (or with- in) mentioned. Dated," &c. This committitur is to be signed by the judge, when the bail surrenders the defend- ant to the sheriff, before or in the presence of the judge. It is then delivered to the sheriff to be retained by him. The defendant may surrender himself before the judge, without the act or presence of the bail, and then it is stated to be, "on the prayer of the defend- ant." 2. If the defendant be in custody, and do not appear before the judge, the sheriff must sign the following acknowledgment of it: " I acknowledge that the defendant is in my custody in the goal of . Dated." &c. The proof of this acknowledgment must be made by a subscribing witness on oath, before a judge or a commissioner, or by a certificate 76 of the judge in whose presence *it was [*31 made; and the proof or certificate must be under the acknowledgment, in the following form: "A. B., the subscribing witness to the above acknowledgment, being sworn, saith, that he saw , the sheriff of , or , deputy of the sheriff of , (as the case may be) sign the same. Sworn," &c., or, "I certify that A. B. (or C. D., deputy of A. B.), sheriff of , signed the above ac- knowledgment in my presence." The judge after this signs the committitur as above men- tioned. 3. The surrender being made as above di- rected, the judge indorses, on the other copy of the bailpiece, the following order and notice: " Let notice be given, without delay, to the plaintiff, that the defendant hath, on the pray- er and for the indemnity of his manucaptors, been committed to the custody of the sheriff of , at the suit of the plaintiff in the plea above mentioned; and that unless cause to the contrary be shown by the plaintiff be- fore me at my chambers, in , on , at o'clock in the noon of that day, an exotieretur will be indorsed on the bail- piece accordingly. Dated," &c. The form of notice is in substance the same as the order, and must be served two days before the time specified therein. 4. If the plaintiff appears and shows no cause, or does not appear, and proof be made of the due service of the notice, by affidavit to be annexed to the copy of the bailpiece, on which is the order for the notice, the judge then orders the exoneretur to be entered, as follows: *" The plaintiff having appeared, and [*32 not having shown sufficient cause to the con- trary (or the plaintiff not having appeared, and due proof being made of the service of notice, as appears by the affidavit hereunto annexed, or otherwise, as the case may be) let an exoneretvtr be indorsed on the bailpiece accordingly. Dated," &c. If proof of notice be wanting, or sufficient notice be not given, the judge may order a new notice as above. If the surrender was not made in the pres- ence of the judge, but only upon an acknowl- edgment by the sheriff, then before any ex- oneretur can be entered, the sheriff must make a further acknowledgment, as follows: "I acknowledge that the defendant was still remaining in my custody when the com- mittitur of him for the indemnity of his manucaptors at the suit of the plaintiff in the plea above mentioned came to my hands. Dated," &c. This acknowledgment must be proved or certified in the same manner as the former. 5. The following is the form of the eroneretur to be indorsed on the original bailpiece: " The within defendant having, on the prayer and for the indemnity of his manu- captors, been committed to the custody of the , ut the suit of the plaintiff on sheriff of the within plea, the said manucaptors of their recognizance within contained are fully ex- onerated." COL. AND CAINES. 1801 AN ACT CONCERNING THE SUPREME COURT. 32 When the exoneretur is indorsed, the copy of the bailpiece, with the proceedings, is an- nexed to, and remains with the original on file. 33*] *N. B. Except the committiiur notice to the plaintiff, and the exoneretur, all the pro- ceedings before the judge are entered on the copy of the bailpiece. By the act (Laws, vol. 1, p. 387) the sur- render, committtoir, and sheriff's receipt there- on, may all be made before a judge of the Court of Common Pleas, and on due proof therefore, a judge of the Supreme Court makes the order for notice, and enters the subsequent proceedings to the conclusion of the business. AN ACT CONCERNING THE SUPREME COURT. PASSED 24ra MABCH, 1801. 35*] * Terms of the Supreme Court. I. Be it enacted by the people of the State of New York, represented in Senate and As- sembly, That the Supreme Court of Judica- ture of this State shall be held at the four sev- eral terms following, to wit: On the third Tuesdays of January, April, July and October in every year, and that the said several terms of " the said court shall con- tinue and be held from the time of the commencement, every day except Sunday, until and including Saturday in the next en- suing week, and that the term commencing on the third Tuesday of January shall be called January Term, and shall be held in the city of Albany, and the term commencing on the third Tuesday in April shall be called April Term, and shall be held in the city of New York; and the term commencing on* the third Tuesday of July shall be called July Term, and shall be held in the said city of New York; and the term commencing on the third Tuesday of October shall be called October Term, and shall be held in the said city of Albany. Teste and return of process. II. And be it further enacted, That there shall be in each of the said terms two common days of return only, that is to say, the first day and the Tuesday in the next ensuing week of each term, but that the process in proceed- ings by bill or otherwise, except on original writs, if issued in term, may be tested any day in that term, and be made returnable on any day in the same term, or the next term; and if issued in the vacation may be tested on any day in the preceeding term, and be made re- turnable on any day in the next term. Process returnable before the judges, and pro- ceedings to be before the same. 36*] *III. And be it further enacted, That all writs and process returnable in the said Su- preme Court, shall be made returnable as fol- lows, that is to say: "Before our justices of our Supreme Court of Judicature, at the city hall of the city of New York" (or city of Albany, as the case may be), and proceedings in the said court which have been supposed to be be- COL. AND CAINES. fore the people of this State, shall be before the justices of the people of the State of New York, of the Supreme Court of Judicature of the same people. Proceedings, except process, may be on paper. IV. And be it further enacted. That it shall be lawful to use paper instead of parchment in all proceedings in the said court, except as to the process of the same. No trial at bar without leave. V. And be it further enacted, That no issue in any civil cause shall hereafter be tried at the bar of the said Supreme Court, without the leave of the said court for that purpose first had and obtained. Clerks of tlie Supreme Court and their duties. Records and papers how, removable to Albany. VI. And be it further enacted, That there shall be two clerks of the said court, who shall have like powers, be subject to the like duties, and be entitled to like fees for services per- formed; and that one of the clerks of the said court shall keep his office in the city of New York, and shall attend the said court and officiate as cjerk thereof when the same court shall sit in the city of New York; and the other of the said clerks shall keep his office in the public building in the city of Albany, and shall attend the said court and officiate as clerk thereof, when the same court shall sit in the city of Albany. And that it shall be law- ful for the justices of the same court, from time to time, to direct such records and papers as they shall think proper to be removed from the clerk's office in the city of New York, and deposited in the clerk's office in the city of Albany. Seals of the said court. Clerks to ta.r costs and sign rolls. VII. And be it further enacted, That there shall be two seals of the said court, and the descriptions of the same in *writiug, [*37 deposited and recorded in the office of the sec- retary of this State, shall remain as public records, and that each of the said clerks shall have the custody of one of the said seals, and 77 87 AN ACT CONCERNING THE SUPREME COURT. 1801 all process and other proceedings issued under either of the said seals shall be equally valid. And further, Thut all costs and judgment rolls in the same court may be taxed and signed by either of the said clerks. Recorder of New York made a commissioner to do certain duties of a judge of the Supreme Court. VIII. And be it further enacted. That the recorder of the city of New York shall be ex officio a commissioner, equally authorized and required with a judge of the Supreme Court, in respect to suits and proceedings in the said court, to do and execute every act, power and trust, excepting taxing costs and signing rolls, which according to the practice of the said court, a judge may do and execute out of court; and also to allow writs of habeas corpus, and to admit prisoners to bail in all cases and in like manner as any such judge may do. Court to appoint commissioners to take affidavits. Effect of such affidavits. Perjury therein pun- ished. IX. And be it further enacted. That the said court shall by one or more commissions under the seal of the same, from time to time as need shall require, empower such and so many per- sons as they shall deem fit in every county, to take affidavits of any person desirous to make the same, concerning any cause or matter de- pending, or any proceedings to be had in the said court or in the Court of Exchequer; and every affidavit so taken shall be of like force as affidavits taken in the said courts respective- 78 ly, or before a judge thereof; and that every person who shall commit perjury in any such affidavit, shall incur the same penalties as if such affidavit had been made in open court. Governor to change place of holdinf/ courts in case of sickness or other calamity. X. And be it further enacted, That the per- son administering the government of this State is hereby authorized, at any time during the vacation of the Supreme Court, or of any Mayor's Court, Court of Common Pleas, or sessions of the peace, in any city or coiinty, if he shall deem it requisite *by reason of [*38 war, pestilence, or other public calamity, or the danger thereof, that the then next ensuing term or session of any such court should be held at a different place from the one where such term or session would be to be held bv law, to appoint by writing under his hand*, and to be recorded in the secretary's office, and published in such and so many public news- papers as he may deem requisite for the due notice thereof, such different place for holding such ensuing term or session as he shall deem most eligible, and at any time thereafter dur- ing such vacation to revoke every such appoint- ment, and in like manner to appoint a place anew, or leave such term or session to be held at the place where by law it would have been held; and whenever such term or session shall be held at any place so appointed, all process shall be returned, and all persons shall be held to appear at such place equally as if such term "or session was held at the place where by law the same was to have been held. COL. AND CAINES OASES OF PRACTICE ADJUDGED IN THE SUPREME COURT OP THE STATE OF NEW YORK. 39*] * APRIL TERM, 1794. DOBBIN . W ATKINS. Nonsuit Evidence Written Contract Notice to Produce. ON the trial it appeared that the contract on the part of the plaintiff to deliver, and the one on the part of the defendant to receive and pay for the stock, had been reduced te writing, and mutually signed and interchanged between the parties; and the former was the con- sideration of the latter or of the assumpsit by the defendant as charged in the declaration. The plaintiff could not produce the writing, and not having given notice to the defendant to produce it, whereby to entitle himself to prove its contents, he was nonsuited. B. 4O*] *LUDLOW ads. THE PEOPLE. Certioi'ari To have Trial by Foreign Jury Suf- ficiency of Affidavit. THE Defendant was indicted at the Oyer and Terminer in Queen's County for a rape, and in the last vacation he obtained from a judge at his chamber, an allowance of a cer- tiorari to remove the indictment into this court, with a view to have a trial by a foreign jury. The certiorari was directed to the clerk of the Oyer and Terminer, and returned by him with the indictment annexed, and the following questions occurring : 1st. Whether a certiorari to remove an indictment for felony could be al- lowed otherwise than on motion in open court, and special cause shown. 3d. Whether a cer- tiorari to remove an indictment from the Oyer and Terminer ought not to be directed to and returned by the commissioners instead of the clerk. 3d. If the certiorari in the present case should be received and filed in this court, then how and where must the trial be ? whether by procedendo to the Oyer and Terminer, or by nisi prius at the circuit, or at bar ? and whether a foreign jury could be awarded in a capital case. The court permitted the cerlio- rari and return to be lodged only in court for the present, but not as either formally received COL. AND CAINES. or filed ; the defendant, however, having sub- mitted the affidavit on which he should ground his motion for a foreign jury, to the previous examination of the judges, and they deeming it insufficient, no opinion was therefore given on either of the above questions, and the following order was entered in the cause, viz : "The writ of certiorari issued out of this court, in this cause, directed to James Fairlie, clerk of the Court of Oyer and Terminer, and General Gaol Delivery, *in and for [*41 the County of Queens, and the return of the said James Fairlie to the said writ being read, Ordered, that the said writ and return be not received and filed in this court, and that the several matters intended by the said return to have been certified and returned to this court, be in the same state in which they were before the said writ issued ; the said writ and the said return notwithstanding." The certiorari and return were thereupon entrusted to Mr. Justice Lansing, to be by him put again into the hands of Mr. Fairlie at Albany, where he re- sided. B. THE PEOPLE v. DOWELLE. Witness Fees Poor persons appearing on Sub- poena, and, not on Recognizance. SEVERAL poor persons appeared on sub- O pcena to give evidence against the defend- ant. The court determined that on a just construction of the statute they were equally entitled to be paid as if they had appeared on recognizance. B APRIL TERM, 1795. CARNES v. DUNCAN, Administrator. Pleading Nul tiel record as one of Several Plevs. THE Defendant pleaded payment and nul tiel record ; and on motion on the part of the plaintiff, the court ordered the defendant to elect by which of the two pleas he would abide; thereby deciding that *where [*42 there are several pleas, nul ttel record cun never 79 42 SUPREME COURT, STATE OF NEW YORK. 1795 be one of them. The principle of the decis- ion was declared to be, that mil tid record be- ing a matter, the knowledge of the proof of which the defendant might reduce to absolute certainty, it was not within the reason of the statute enabling defendants to plead several pleas, for that the sole intent of the statute was to relieve against the hardship of restricting a defendant, having several matters of just de- fence all of them, however, of a nature, that the proof of them cannot be previously posi- tively ascertained to rest his cause on one of them only. B. Cited 6 Wend., 512. APRIL TERM, 1795. PLATT v. PLATT. Habeas Corpus Relation to suit below. Cases cited : Abb., 199 ; Bract., 414, cited in the last Digest, tit. 5, c. 5, par. 3; Inst. Cler., 409; Inst. Legal, 237; Imp. Pract. Com. PL, 641; Boote's suit at law, 14, 17. 34. BENSON, J. The pleadings in this cause are: Narr. intitled of October Term, 1794, in as- sumpsit charged, 1st September, 1794, plea in abatement, that on the 28th January, 1793, the defendant was taken and detained in prison under the custody of the Judges and Assistant Justices of the Court of Common Pleas for the County of Westchester, by virtue of a plaint levied against him in that court at the suit of the plaintiff ; that the plaintiff declared against the defendant on that plaint, and the plea set forth the declaration at large, which is similar to the declaration in this court (with this difference only, that in the latter there is an addition of a count on an insimul computassent, and in the former the as- sumpitit is charged on the 1st of January, 1793); that the defendant sued out of this court an habeas corpus for removing the cause, tested the 9th, and allowed the 27th August, 1794, and 43* j returnable *the ensuing October Term ; that the habeas corpus was returned in that term.and setting forth the return, which is in the usual form ; that thereupon the defendant was delivered to bail in this court at the suit of the plaintiff in the plea aforesaid, whereupon the plaintiff exhibited the bill aforesaid in this court against the defendant in the plea afore- said ; that inasmuch as it appears by the bill here that the causes of action specified in the bill had not accrued before the term of the caption of the defendant by virtue of the plaint, nor before the time when the plaintiff declared on the plaint, nor before the day of the test, nor before the day of the allowance of the habeas corpus, the plea therefore concludes by praying judgment of the bill, and that it may be quashed. Demurrer to the plea, and joinder in demurrer. "It is regularly true that if the plaintiff will himself discover to the court anything whereby it may appear that he had no cause of action when he commenced it, his writ shall abate ; of his own showing, it is against him. (Hob. 199.) Or as it is expressed by an ancient law- writer, "The Writ also falls if at the 80 time of dating and issuing, the demand- ant had no competent action or cause for de- manding." (Bract., 414, as cited in issu- ing there was no cause for issuing, because, Theloal's Digest, Lib. 4, ch. 5, par. 3.) The question therefore between the parties in the present case is, whether the defendant shall, to that intent, where the suit hath been removed by habeas corpus, allege any act of the plaintiff, or other proceedings, in the court below, or the test, or the allowance of the habeas corpus, *as [*44 the commencement of the suit. This question depends on another, viz : Whether, where a suit is removed by habeas corpus, it does not then become a new suit in the court above, or whether it is not to be considered as the same suit, commenced in the court below, and con- tinued in the court above. With respect to this question, it is clearly laid down "that the record itself is never removed by habeas corpus, but remains below, and therefore the plaintiff must here begin de novo" (Salk., 352), and must not only "declare de now," but in the common bench must "bring a new original." It is part of the condition of the recognizance of bail on an habeas corpus in that court, "That the defendant shall appear to a new original to be filed." (Inst. Cler., 409., Inst. Legal., 237 ; Imp. Pract. Com. PI., 641.) And I should suppose, if it is now necessary to comply with mere formality or fiction, that where the proceedings are by bill, as distin- guished from where they are by writ, that the bill "on which the process used to issue against the defendant," which is "to warrant the declaration," and which, as analogous to the original writ, is said to be "the ground- work of the cause," ought to be filed de now. (Boote's Suit at Law, 14, 17, 34.) And although where a suit hath been com- menced within the requisite period and removed by habeas corpus, and the period should expire before the declaration de now filed, and there- upon the defendant plead the statute of limita- tions, ' 'the plaintiff may reply the suit below " (Salk., 424), and in like manner, where a suit is commenced within the period, and abated by the death of the plaintiff before judgment, the period being then expired, ' 'this shall not pre- vent *his executors;" yet, the reason is not, [*45 that in the former case the suit above is a contin- uance of the suit commenced below, or that in the latter case the suit by the executor is a con- tinuance of the suit commenced by the testator, but merely to show that the plaintiff "had rightfully and legally pursued his right." And I should suppose, for the same reason, that where priority of right attaches on bringing a suit, and a suit should be brought and be re- moved by habeas eorp?/*,and in the intermediate time between bringing the suit in the court be- low and filing the declaration in the court above, another person should bring a suit against the defendant for the same cause, and the defendant should plead that matter with in- tent to oust the plaintiff of his priority, that the plaintiff might reply, the suit commenced in the court below. The truth is, that when- ever right or justice may require it, a ^uit re- moved by habeas corpus may, to certain intents, be made to relate to the suit below, but not to it as to the same suit technically continued, or i on the proceedings in which any of those COL. AND CAINES. 1795 PRICE v. EVERS. 45 in the court above are founded, in the sense that the count, narration or declaration is said to be founded on the writ or bill, or plaint, which- ever may be the original process. There is possibly another question between the present parties, viz., whether the rule is not to be taken strictly, that the defendant cannot avail himself of it as pleadable unless the plaintiff himself discover that he had no cause of action when he commenced it. (Hob. ut supra.) In which, however, I should un- derstand to be comprehended, as well what the 46*] *plaintiff must in the first instance put on the record, as what he is bound to discover on oyer prayed by the defendant, and also what- ever the defendant may elect to allege himself instead of praying oyer of it from the plaint- iff, but of which, if it had been prayed, the plaintiff was bound to give oyer. (Thel. Dig., lib. 10, ch. 4; Brown Lat,, red. 1, pi. 3; Id., 2, pi. 6 ; Form. bene. plac., 3.) If the Law is so, and I am inclined to think it is, then it is fatal to the defendant's plea ; because (and which it is to be remarked, is decisive, that the process is not continued from the one court, to the other, there being no such thing, where a cause hath been removed by habeas corpus, as oyer in the suit in the court above of any of the matters in the suit in the court below) the defendant hath no legal mean to make the matter of variance (for of that nature is the matter of the plea in this case) appear on the record. (Theloal's Dig., lib. 9, chap. 5.) I wish, however, to be considered as not having come to a decided judgment on this point ; my opinion against the defendant is grounded wholly on what I have previously advanced. / think tlie plea is insufficient, and therefore, that the defendant atiswer over. B. Cited in 1 Caines, 272. PRICE v. EVERS. Amendment of Record. IN the Court of Errors, 1796. Error from the Supreme Court on a judgment in as- 47*] sumpsit by default. *The plaintiff in the court below had in the in toto attingens on the roll, taken .judgment for sixpence less than the amount of the damages and costs found by the jury, and the costs of increase. The following judgment was thereupon entered in this court, viz: "This court having heard counsel on both sides, and due consideration having been had of what was offered on either side in this cause, and one of the causes of error assigned being a miscasting by the defendant in error, it is thereupon ordered by this court, that the record in this cause be amended, whereby to correct such miscasting, as follows, that is to say, by striking out the word ten in the judg- ment between the word pounds and the word shillings, and inserting the word eleven instead thereof ; and by striking out the words and sixpence, after the said word shillings. And it is thereupon further ordered and adjudged by this court that the said judgment given in the said Supreme Court be, and hereby is af- firmed ; and that the transcript of the said record so amended be remitted, to the end that COL. AND CAINES. N. Y. REP., BOOK 1. the record remaining in the said Supreme Court be also amended in like manner, and that ex- ecution may be thereupon had accordingly. And it is further ordered, that the defendant in error pay to the plaintiff in error his costs of prosecuting the said writ of error to be taxed." B. Cited in 3 Johns., 99 ; 2 Cow., 410 ; 1 Demo, 678. JULY TERM, 1796. *BRANTINGHAM'S CASE. [*48 Imprisonment for Debt Charging Defendant in Execution Election. defendant having been surrendered in 1 discharge of his bail, and thereupon com- mitted to custody, the plaintiff proceeded to judgment, but suffered more than three months to elapse after judgment was entered, without charging the defendant in execution. He was then summoned before His Honour -Mr. Justice Benson, at his chambers, to show cause why a supersedeas should not issue, because he had not charged the defendant in execution within the time prescribed by the 12th section of the Act entitled "An Act for the relief of debtors, with respect to the imprisonment of their per- sons," passed the 13th of February, 1789. The plaintiff, after notice of the application and before the time of attendance, charged the de- fendant in execution, and on the hearing, showed that for cause. His Honour Judge Benson reserved the question, and stated the case to the judges at a conference, at which they were all pres- ent. They were of opinion that a supersedeas ought not to be allowed. That the intent of the statute was to enable the defendant to put the plaintiff to his election, either to charge the defendant's body in execution or to resort to his estate ; and the plaintiff having made his election before the supersedeas was allowed, the defendant was not entitled to his discharge. *DRAKE v. HUNT. [*49 Non r pros. Removal of Cause Acceptance of Declaration. action was originally commenced in JL the Mayor's Court of the city of New York and removed by habeas corpus. Bail had been regularly filed, and Munro, for defendant, moved the last April Term, that the plaintiff be non prossed for not declaring. He cited 2 Crompton, 410 ; 2 Salk., 455 ; Gil- bert's Law of Distresses, 139 ; Cur. ad milt. The court now gave their unanimous opin- ion, That the cause having been removed to this court without the agency or approbation of the plaintiff, he was not obliged to follow it, and could not be non prossed for not declar- ing here, as he had never been in court ; but that the defendant was not bound to accept a declaration after two terms had elapsed. G. 6 81 49 SUPREME COUKT, STATE OF NEW YORK. ITitr, WENDOVER v. BALL. Sheriff Attachment Bail One nominal Person Stipulation of Sheriff. ABAILPIECE had been filed, containing the name of one real person, who had at the same time filed an affidavit of justification, and of one nominal person. A rule was then taken to bring in the body, or show cause why an attachment should not issue against the sheriff ; and now Mr. Wood, for the plaintiff, moved that the rule be made absolute. Per Curiam. The practice of inserting only one real person in bailpieces has generally ob- 5O*] tained, *but has passed because there has been no opposition to it. It is requisite, if the plaintiff exacts it, that two real persons should become bail. But the sheriff stipulating to put in addi- tional bail, the motion was waived. GENERAL RULE. SATURDAY. ORDERED, That on trials, one counsel only on each side shall examine or cross-exam- ine a witness, and that two counsel only on each side shall sum up the evidence to the jury. OCTOBER TERM, 1796. COHAN, Administrator, ads. KIPP. Default Imperfect Plea Mistake. A PLEA was drawn and signed, but the de- fendant's attorney forgot to file it, and a copy without signature was served. A default for not pleading was entered during the last vacation, subsequent to the delivery of the plea. Mr. Jones, for defendant, now moved to set aside the default, on the ground of irregularity; he produced also an affidavit of merits. Per Curiam. A plaintiff may accept or re- fuse an imperfect copy of a plea; and if he ac- 5 1 *] cepts it, the *court will compel the defend- ant to file a perfect plea, if that has not already been done. Here appears to have been a mere mistake on the part of defendant. Let him file a plea instanter. and the default be set aside on payment of costs. APRIL TERM, 1796. BRANSON ads. BOARDMAN ET AL. Verdict Dem urrer. IN this cause a demurrer was filed to the rep- lication ; the defendant's attorney at the same time applied to the deputy-clerk for leave 82 to strike out the similiter, but the clerk refused to permit him to do so. Notice of trial was then given, and an inquest taken. Mr. Jones, for defendant, now moved that the verdict be set aside for irregularity. Per Curiam. The 9th rule of April Term r 1796, provides that "If either party shall in pleading, in any degree, tender an issue to the country, and if the opposite party shall not de- mur to the pleading within twenty days after service of a copy thereof, the cause shall in. each of these cases be deemed to be at issue ;' r but here was a demurrer filed within twenty days, and the striking out the similiter from the replication which had been filed was not necessary. Let the verdict be set aside with costs. Cited in 18 Johns., 138. *APRIL TERM, 1797. FRANKLIN ET AL. ads. NORE. Verdict Notice of Motion for Struck Jury. TSSUE was joined during the last vacation,. J. and before notice of trial was received the defendant served the plaintiff with notice of a motion for a struck jury; notwithstanding which, the plaintiff proceeded to give notice of trial, and took an inquest. Mr. S. Jones, for defendant, moved that the verdict be set aside for irregularity. Per Curiam. The defendant availed himself of the first opportunity in his power to apply for a struck jury, and it was irregular for the plaintiff to proceed after receiving notice of the intended motion. Let the verdict be set aside icith cost*. JANUARY TERM, 1798. WINTER . CARTER. Bail-bond Default of Record Judgment. was an action on bail-bond. The de- 1. f endant pleaded comperuit ad diem ; plaint- iff replied n ul tiel record ; and issue being taken thereon, day was given, by rule entered in va- cation, to produce the record on the first day of this term. And now, on this day, being the quarto die post, The Attorney-General, for plaintiff, moved that the defendant be called to produce the record. *The court expressed some doubt [*53 whether this was to be considered as a com- mon rule, within the intent of the first general rule of April Term, 1796, and took timelo con- sider of it till the succeeding Monday, when they ordered judgment for default of record. COL. AND CAINES. 1798 OUDENAKDE V. VAN BERGEN. 53 OUDENARDE v. VAN BERGEN. Interlocutory Judgment Default not entered. HTHE plaintiff had filed his declaration in va- J_ cation, and the rule to plead having ex- pired, he entered interlocutory judgment the last term, without having first entered a de- fault. Mr. Spencer, for defendant, moved to set aside this judgment, on the ground that no default had previously been entered. On the last day of term, Mr. Justice Lans- ing delivered the unanimous opinion of the court : When this question was presented in the first instance, I did suppose that the entry of the default could not, under the existing rule, have any other effect than merely to preclude the opposite party from pleading, and that the plaintiff might waive the entry of the default, and enter a rule for judgment. Upon further reflection on the subject, and after carefully examining the eighth rule en- tered in April Term, 1796, it appears to me to be the better construction that the entry of the default is indispensable to entitle the plaintiff to his judgment, the expression being, " That 54*] the default being duly entered, *the party who shall have had it entered shall not be held afterwards to accept a declaration or answer, as the default shall happen to be, and may at any time after four days in term shall have inter- vened thereafter, have a rule for such judgment as is to be rendered by law, by reason of the default." This imposes it on the party enter- ing the default to file the necessary proofs to evince its regularity, and if any subsequent question arises on that subject, a resort to those proofs affords a determinate test. We are all- of opinion tJiat the interlocutory judgment be net aside. APRIL TERM, 1798. KETTLETAS . NORTH. Writ of Error Permission to Losing Party to file Roll. JUDGMENT had been rendered for the de- J fendant on verdict, but the roll had not been filed. Mr. Burr, for plaintiff, now suggested that he intended to bring a writ of error, and moved for a rule that the defendant produre the roll to be signed and filed in four days, or that the plaintiff have leave to do it. Rule granted. 55*1 *WICKHAM v. WATERS. Ejectment View Boundaries. p RAHAM moved for a view, on affidavit VT that view was necessary. But as he did not state that boundaries were in question, the court refused to grant the motion. COL. AND CAINES. WIMPLE ET AL. . M'DOUGAL. Amendment Ejectment Declaration Election of Defendant. VAN VECHTEN, for the plaintiff, moved for leave to amend the declaration in eject- ment, by adding a count on the demise of a person not originally named as a lessor. He mentioned the case of Jackson, ex dem. Quack- enbos, v. Dennis, where this was allowed. Mr. Graham, contra. Per Curiam. In the case of Quackenbos v. Dennis, it was so ordered, and that is to be considered as a precedent to govern. But it is reasonable that the defendant should be permitted to relinquish his defense, if he chooses to do so, as the introduction of a new party may vary his situation. Let him elect, by Friday next, to abide by or relinquish his plea ; and if he relinquishes it, the plaintiff must pay all the costs accrued up to that day. M'GOURCH v. ARMSTRONG. Sheriff A ttachment Arrest Notice. HENRY moved for an attachment against the sheriff of Montgomery, on a rule taken by him in vacation to bring in the body by the second day of term. But *it appeared [*56 that notice of such rule had not been served twenty days. Per Curiam. Although the printed rules do not reach the case, the sheriff must have twenty days at least after service of the notice. Let the plaintiff take nothing by his motion. DRIGGS ads. VAN LOON. Inquest Interlocutory Judgment Notice of Retainer Subsequent Notices. MOTION by KirJdand to set aside a writ of inquiry and subsequent proceedings. Defendant had retained an attorney after in- terlocutory judgment, who gave notice there- of ; but plaintiff proceeded to execute a writ of inquiry, without giving notice to the attor- ney so employed. Per Curiam. Whenever an attorney is em- ployed, though it be too late to plead, yet he is entitled to all subsequent notices. Motion granted. Cited in 8 Cowen, 117. BALLARD AND PARKMAX, Manucaptors of CHAPMAN, ads. KIBBE AND LUDLOW. Bail Surrender of Principal Discharge of One Bail. THIS was an application by bajl to surrender their principal on the following case : In April Term, 1797, ca. sa. against the 56 SUPREME COURT, STATE OP NEW YORK. 1798 principal was returned non et. On which plaintiffs issued a cap. ad. resp. against the bail jointly, on their recognizance. This writ was 57*1 delivered to the sheriff of *Herkimer or his deputy, early in April vacation, being re- turnable the last Tuesday of July then next. On the 7th of July the deputy, having pos- session of the writ, but not in his pocket, met Parkman, one of the bail, and informed him of the writ ; on which Parkman promised to come to the house of the deputy and indorse his ap- pearance thereon before the return day. He accordingly came and indorsed his appearance, but at what time precisely, Cheeseborough, the deputy, who is the witness, does not recollect. By the affidavit of Parkman himself, it appears to have been two days after the return day of the writ. The writ was then returned, with such indorsement, but without any return in- dorsed by the sheriff himself. In July vacation, plaintiff issued an al. cap. against Ballard, to answer simul cum Park- man, returnable in October Term, which hav- ing been returned " non eat" plaintiffs issued a testatum against Ballard alone, returnable in January, 1798, directed to the sheriff of Onon- daga, who took him. August 28th, 1797, defendant's attorney had delivered plaintiff's attorney a writing intended as a plea in abatement, praying that for want of an official return, as well as on account of such irregular service of the writ on Parkman, the plaintiff's bill might be quashed. 08*] *February 10th, 1798, plaintiff's attor- ney delivered a copy of the declaration filed against the bail jointly. February 13th, 1798, plaintiff's attorney re- ceived a plea in chief, nil debet, in behalf of Ballard alone ; and at the same time another writing, intended as a plea in abatement, in be- half of Parkman separately, and so entitled, and grounded upon the before mentioned ob- jection, viz., the want of official return. The proceedings respecting the surrender were as follows : January 13th, 1798, three days before the term, the sheriff of Herkimer signed an ac- knowledgment that the principal was in his custody on a surrender by Parkman, in behalf of himself and Ballard. January 27th. On application of Ballard in behalf of himself and Parkman His Honor Judge Benson made an order for a commit- ment. March oth. The sheriff signed a further ac- knowledgment, that the principal was still re- maining m his custody when the committitur came to his hands. March 20th. Judge Benson made an order for the plaintiffs to appear and show cause why an eroneretur should not be entered. They ap- peared accordingly, and the case was adjourn- ed over to be argued and determined in open court. 59*] *On this case the following questions were raised : I. Are the defendants now too late in their application? II. Can one bail be discharged alone when the application is for the discharge of both? III. Will the discharge of one bail operate a a discharge of all? and if one is fixed, will not the other be so likewise? (Curia ad cult ) 84 Per Curiam. The surrender by Ballard is good as to both. If a plaintiff will elect to sue special bail jointly, he who is first taken shall have time to surrender till the last is taken also, and till the time allowed him (the last) for surrendering is expired. If he sues them separately, then each may be separately fixed ; or one may be fixed, and the other may afterwards surrender the principal, and be dis- charged. So that, in fact, plaintiff may have the body of defendant in custody, and at the same time go on with a suit against the other bail which has been fixed. He cannot, how- ever, have more than one satisfaction. Let tJie defendants take the effect of their mo- tion, on payment of costs. Cited in 6 Daly, 397. *JULY TERM, 1798. [*60 WOODMAN ET AL. ads. LITTLE. Scire Facias Teste Second sci.fa. Limitation. THIS was a motion to set aside the proceed- ing on a scire facias quare ex- non and two nihils returned, because there had not been 15 days between the teste of the first and return of the second sci.fa. In support of the mo- tion was cited, 4 Durn. & East, 583. It was contended in reply, that when pro- ceedings in the original cause are by bill, four days are enough. (4 Durn. & East, 663.) Per Curiam. There must in all cases be 15 days between the teste of the first and return of the second set. fa. Mr. Golden for defendant. Mr. Houston for plaintiff. PEPOON ET AL. ads. JENKINS. Amendment of Writ Omission of Clerk's Name. RIGGS, for defendants, moved to quash the writ for want of the clerk's name to it, and Woods at the same time moved for leave to amend. He contended that the writ is sup- posed to be the act of the clerk, and ought not to prejudice the party; and *cited 1 [*61 Cromp, 106, and 1 Durn. & East, 783; Yelv., 64. Per Curiam. It may be considered as the omission of the clerk, and amendable. Let it be amended on payment of mats. THE PEOPLE, at the relation of THOMPSON, v. THE JUDGES OF THE COURT OF COM- MON PLEAS FOR WESTCHESTER. Filing Ritt mine pro tune Assignment of Error. AT a previous term, Woods had moved for and obtained a rule to stay proceedings COL. AND CAINE8. 1799 WlSNER ET AL. V. WlLCOX ET AL. 61 on a writ of error in this court, until the com- mon pleas in Westchester could be moved for leave to file a plaint nunc pro tune, the want of which had been the error assigned here. Ap- plication had been made to that court for such purpose, and was refused by them, on which Mr. Woods obtained the rule here to show cause why a mandamus should not issue to compel them to allow such application ; and now Mr. Munroe showed cause. He insisted that the court below had always a discretion in cases of this kind, and that in the present instance, having considered the judgment before them as unjust, had re- fused the application on that ground, and that therefore it was not a proper case to grant a mandamus. Per Curiam. The court below have indeed a discretion, but it is a legal and not an arbitra- O2*] ry one. We *always allow a bill to be filed nunc pro tune when error is brought and that assigned for cause. Rule absolute. WISNER ET AL. t>. WILCOCKS ET AL. Ejectment Parties Landlord Receipt of Rents. Cases referred to : 3 Burr., 1293 to 304 ; Comb., 209 ; Running-ton on Ejectment, 72 ; Buller, 95. GIL VIE moved that Amos Wilcocks be ad- mitted to defend jointly, on his affidavit that the defendants hold of him as their land- lord. Mr.Riggs, for plaintiff, opposed the granting a rule, because the affidavit did not specify that Amos Wilcocks was in the receipt of rent. Per Curiam. There is no case which goes the length of saying that none are to be con- sidered as landlords within the meaning of this rule, but those who actually receive rents. Some dicta look that way (vide 3 Burr., 1292 to 1304; Comb., 209; Runnington on Eject- ment, 72 ; Buller, 95), but it is the privity of interest, and not the receiving of rent, which is the true test. A mortgagee out of possession may be let in to defend. Strangers only are to be excluded. Motion granted. Cited in 17 Johns., 113. BERRY, who is impleaded with BUSHBEE, ads. ELLES ET AL., Assignees of the SHERIFF OF NEW YORK. Stay of Proceedings on Bail-bond Loss of Trial Neglect of Plaintiff. MOTION by Boyd to stay proceedings on bail-bond. It appeared that the capias in the original suit had been returned in Jan- uary Term last, and that a declaration was O3*] filed the 14th of June following; no *bail to the action then being put in, process issued on the bail-bond in the last vacation, and on the 10th of August the defendant was arrested thereon. It also appeared that the notice of this motion was accompanied by an offer of good bail and a cognovit actionem. COL. AND CAINES. Mr. Golden opposed the motion, on the ground that the plaintiffs had now lost a trial in the original action for want of bail. Per Curiam. The plaintiffs may have lost a trial, but they have been negligent on their part. N They should have put the bail-bond in suit in January vacation. It is not a loss of trial alone which will prevent our interfering to relieve in these cases, but that loss must be without neglect on the part of the plaint- iff, and must be occasioned by the delay of defendant after bail is called for. If a dif- ferent practice was allowed, a plaintiff would be tempted to wait a term or longer, and thus ensnare the bail. The court will always stay proceedings if application be made for that purpose on the return of the bail-bond writ. Let the proceedings be stayed on payment of costs. BIRD, SAVAGE & BIRD ads. ROBERT MURRAY & COMPANY. Removal of Causes to Federal Courts by Alien Defendants Appearance Sail excepted to. HARRISON presented a petition from the defendants to remove the cause into the federal court, on affidavit that defendants are aliens. *It appeared that special bail had been [*64 put in last December, but an exception was en- tered, and bail had not been perfected till this term, and till after the petition had been filed. Mr. Pendleton and Mr. B. Livingston objected,, insisting that the defendants were too late, their appearance having been entered in January last, and the act of Congress, under which the ap- plication is made, directs that the petition be filed when the appearance is entered. Per Curiam. The defendants are in season. As plaintiffs excepted to the bail, they shall not be allowed now to say defendants appeared be- fore. Motion granted. SUYDAM v. M'COON. Amendment Second Amendment of Writ Mis- prision of Clerk. TN this cause the plaintiff, who claimed under JL a sheriff's sale, had been nonsuited on the trial, for a variance between the record pro- duced in evidence, and the writ of venditioni exponas, and at January Term, 1797, had procured the nonsuit to be set aside on the payment of costs, and had moved for and ob- tained leave to amend the writ by striking out the words twenty-eighth, and inserting the word twentieth. Having been nonsuited a second time for a like variance between the record and the same writ, Mr. Evertson now moved for leave to amend again, by striking out the words "last past" and inserting the figures 1790, and cited Thomas Jones, 41. *Mr. C. I. Bogert objected that it was [*65 now too late. 85 65 SUPREME COURT, STATE OF NEW YORK. 1799 Per Curiam. These ertrors are to be consid- ered as the misprision of the clerk. On the authority of Jones and of the former decision in this court. Let the amendment be made. CHILD v. MURRAY, Manucaptor. IN sci. fa. on recognizance of bail and inquest thereon, the jury assessed interest from the docketing of the original judgment, to the re- turn of the postea. To show that this was the just method of computing interest, the following authorities were cited : 2 Durn. & East, 57 ; 10 Mod. Rep., 278, notes; 8 Id., 336, 358. Per Curiam. The plaintiff is entitled to have interest calculated against the bail, from the day they become fixed. By this the court mean, after the expiration of the time allowed ex gratia to surrender, that is, eight days after capias returned. JANUARY TERM, 1799. CANNON, Manucaptor, ads. CATHCART. Bail Fxoneretur Principal Imprisoned before Return of Capias. THE principal being confined in the County of Herkimer on a charge of felony, appli- cation was made for a committitur to one of the judges of that county in April vacation, O6*J 1798, and before the return *of the capias against the bail, which was refused. In Sep- tember following, the principal was convicted, and sentenced to be imprisoned at hard labor in the State prison for life. On these facts a rule was taken to show cause why an exoneretur should not be entered. Per Curiam. It appears that the defendant made a bonafide attempt to surrender the prin- cipal before the capias was returnable, and was frustrated. The principal was afterwards im- prisoned for life, and even if the surrender had been effected, it *could not have benefited the plaintiff. Let the defendant take the effect of his motion on payment of costs. M'NEALY ads. MORRISON. Default Notice of Retainer Similar Notice to another Attorney Notice thereof. SLEIGHT, plaintiff's attorney, received a notice of retainer from Smith in July; in September following he received a like notice from Mr. Bowman, and twice seemed recognize him as the attorney in the suit, though he never served him with any declaration, but served it on Smith, and entered a default for want of a plea, which Mr. Bowman now moved to set aside on the above statement of facts. 86 Per Curiam. It was certainly incumbent on Sleight to have told Bowman, when he received his notice of retainer, that lie had received a similar notice from Smith. *Let the default be set aside ; the cost-s [*67 to abide Hie event of ilie suit. HOLCOMB ET AL,., Defendants in Error, ads. HAMILTON. Amendments of Course Record. Citation 5 Durn. & East, 577. A FTER imparlance, but before judgment, I. li- S. , one of the defendants, died; judgment was then entered against both, and execution issued against the survivor, without any sug- gestion on the record of the death of the other defendant; and on error coram vobis, a rule had been taken to show cause why the record should not be amended by suggesting the death of I. S. Mr. Whiting showed for cause, that the appli- cation was too late, the proceedings having ceased to be on paper. (2 Viner's Abridg., title Amendment, letter H., pi. 17; Idem., page 313, letter G., pi. 2.) Mr. Woods, in support of the rule, read the act of this State, which authorizes the suggestion of the death of one defendant when the cause of action survives, and in answer to the objection in point of time, he cited 5 Durn. & East, 577. Per Curiam. The case cited from Durn- ford & East is in point. Courts have of late, so long as the record is before them, gone into the practice of granting all amendments to which the party would have been entitled as of course, provided that it be of no prejudice to the other party. *Lel the rule be made absolute on payment [*t>8 of the costs of this motion and of the writ of error. CHURCH ads. CLASON AND STANLEY. 1 . Consolidation of Action* English Rule Ten- der of Agreement. 2. Idem Rule to Examine Witness de bene esse Refused. HERE were 18 separate causes on one policy. In July Term last, on the refusal of plaint- iffs to enter into the consolidation rule, the court granted imparlances in all the causes but one, and the like in October Term, and now Mr. Boyd, for defendant, makes application for further imparlances. Mr. Riggs objected. He produced an agree- ment which had been tendered by plaintiffs to the defendant, and was refused. This he con- tended would, if accepted, have answered the same purpose as an exact compliance with the rule, and ought to have been received; and that the defendants, after refusing that offer, were not entitled to take the effect of the present application. Per Curiam. The English consolidation rule is the one the court mean to insist on, and they will not permit the plaintiffs to prescribe to them any other. Let the defendant take the effect of his motion. COL,. AND CAINES. 1799 CARD ADS. FITZROY ET AL. 68 The plaintiffs then applied for a rule to ex- amine witnesses, de bcne ease, in the one cause which stood open for trial, but the court re- fused it, observing that they were entitled to no indulgence till they had first acceeded to the terms already required. 69*] *CARD ads. FITZROY ET AL. Special Motion Service of Affidavit. MOTION for judgment as in cases of non- suit, for not proceeding to trial, on the usual affidavit; but no copy had been served on the opposite party. Per Curiam. It is a rule of practice without exception, that whenever a special motion is to be made founded on affidavit, a copy of such affidavit must be regularly served on the opposite party. The defendant takes nothing by his motion. GILLET ads. WILDE. Nonsuit Default Stipulation. 1VTOTION for like judgment for like cause. Per Curiam. A defendant is not entitled to this judgment for the first default, provided the plaintiff will stipulate to bring the cause to trial at the succeeding circuit; but if the plaint- iff can sufficiently account for the default, he will not be required even to stipulate. And in -all cases the defendant must make this motion the next term after the default, or he will be deemed to have waived his claim to the stipu- lation. HERRING *. TYLEE. Amendment of Interrogations for Fuller Answer. ATTACHMENT against the sheriff. He -Q- had answered the interrogatories, and it was now moved to amend them, the amend- 7O*] ment not being as to any *new matter, but only thereby to obtain a more full answer to the matters already contained in them. Motion allowed. B. WILLIAMS ads. BATES. Imprisoned Debtor Proceedings for Relief Ser- vice of Notice of Petition Absent Creditor. PROCEEDINGS under the Act of the 18th 1 Feb. 1789, for the relief of debtors with re- spect to the imprisonment of their persons. The notice of the petition had been served on the attorney in the suit, the plaintiff, the creditor, residing out of the State. The service held sufficient. COL. AND CAINES. B. MABBIT ET AL. ads. BIRD, Assignee of the SHERIFF of RENS- 8ELAER. Equity Bail-bond Before Forfeiture. rPHE original suit was instituted against five; -L the sheriff returned four, taken, and as to one, non est; but by mistake took bail-bond for the appearance of all. The four who were taken entered special bail, and gave notice, to which there was no exception. The plaintiff then instituted the present suit on the bail-bond against the whole. And now, Mr. Woodworth, for defendants, moved to set aside the proceedings in the suit for irregu- larity. Mr. Bird, contra, He insisted that this court have no cognizance of a case like the present; that this is an appeal to the equity powers of the court, which can *neverbe exercised [*71 till after forfeiture of the condition. The de- fendants must resort to their plea, Per Curiam. The principle contended for by the counsel for the plaintiff is correct. Equity powers only arise after forfeiture of a condition in the bail-bond. The defendants must rely upon their plea of comperuit ad diem. But this decision is not to be understood as precluding defendants from applying hereafter to the equitable interposition of the court. Motion denied. PHELPS v. BALL. Amendment of fi. fa. after Satisfaction Mis- takes. IN this cause a motion was made by the At- torney-General to amend the fi. fa. after it was returned satisfied, by altering two mistakes in the writ. He cited Sir T. Jones, 41. Motion granted. Citation Sir T. Jones, 41. APRIL TERM. 1799. FLEMING, Executor, c. TILER. Costs Nonsuit Variance Clerical Error. THE plaintiff shows as cause against a rule why he should not pay costs, he having been nonsuited on the trial at the circuit, that the writing on which the suit was brought was dated in seventy, &c., and, *through mis- [*72 take in copying the date in the declaration, as entered on the Nisi Prius Roll, was ninety, &c.. and that for this variance the defendant had obtained the nonsuit against him. Rule, discharged. B. 87 72 SUPREME COURT, STATE OF NEW YORK. WHITE ads. SPENCER. Costs Set-off Recovery of Insufficient Amount Attorney's lien. THE plaintiff had recovered, but not above 20; and now a motion by the defendant to set off his costs against the sum recovered, which was opposed on behalf of the attorney for the plaintiff, whose affidavit was read, stating that the whole of his costs was still clue to him, and that the plaintiff had become in- solvent. Rule nevertheless granted to the defendant. B. PHELPS ads. STAFFORD. Default Premature Entry Notice of Motion to set aside Default Service Judgment Execu- tion and Process. fPHE attorney for the plaintiff had entered J. the default, the last July vacation, before the rule for pleading had expired, and the de- fault being entered, he had refused to accept a plea from the attorney for the defendant; who, having shortly thereafter discovered that the default had been prematurely entered, gave a notice of a motion, as of the ensuing October Term, to set it aside, and no counsel appearing to oppose the motion on the part of the plaint- iff, it was granted of course. 73*] *The attorney for-the plaintiff, when the notice was served, resided in Albany, but hap- pening at the time to be out of town, and his office shut up, and he having not long before expressed an intention that he probably would remove into the country, the attorney for the defendant had supposed he had re- moved, and not finding he had appointed an agent, the notice had been affixed up in the clerk's office. The judgment has since been entered, and execution taken out against the defendant, and process issued against the bail. ORDERED, That the whole of the proceed- ings, from entering the default inclusive, be set aside, and the costs to abide the event of the suit. B. THE PEOPLE v. TOWNSHEND. Certiorari Filing Proceedings Returning Pro- ceedings New Trial. rpHE defendant was convicted under the stat- -L ute, at the last court of Oyer and Ter- miner in Dutchess, of perjury, and absconded before judgment. Afterwards he voluntarily surrendered himself, but judgment was not pronounced. LEWIS, J., who presided at the trial, now re- ports to the court that the verdict was against evidence, and that it was given on grounds not pertinent. Per Curiam. There must be a new trial: and the judge who may preside at the next Oyer and Terminer in Dutchess will communi- 74*] cate this opinion to *the judges of that court. In the mean time the defendant must give bail for his appearance. 88 The proceedings which have been brought up by certioran, not having been actually re- ceived, must be returned. If they had been filed here, they could not be sent back to the Oyer and Terminer; no form of process for such purpose is to be found in the books; but the court must have proceeded to try the defendant at bar by a jury returned from Dutchess, or have sent the cause down to the next circuit to be held there. The court in- cline to the opinion that in a capital case it would be otherwise, and that no such case could be sent down for trial. BENSON, J., suggested that a certioran for bringing up the proceedings in like cases ought only to be allowed in open court. (Vide Ludlow ads. The People, ante, page 34.) 8. C., 1 Johns. Cas., 104. Cited in 5 Wend., 42 ; 1 Den., 678 ; 20 N. Y., 548, 554 ; 2 Barb., 288 ; 1 Wheel., 497 ; 1 Park., 370, 629 ; 5 Park.. 645. CONKLIN v. HART. Depositions de bene esse Aged and Infirm Wit- nesses Cause not at issue. ON affidavit that witnesses were so aged and infirm that they could not personally ap- pear in court, it was moved that their deposi- tions be taken, de bene esse, before one of the commissioners for taking affidavits, which was objected to, because the cause was not at issue, and because there was no precedent for such an application. Per Curiam. This appears to be a proper case for granting a commission, and it may be applied for at any time after a suit is instituted Motion granted. *HEYERS v. DENNING. [*75 1. Vacating Rule No Appearance of Bail for defendant. 2. Attorney Appearing as Agent Costs. IN this cause the plaintiff had proceeded to outlawry, when he received a notice of re- tainer from 8. 8. for defendant, who, in his notice signed for or on behalf of defendant, and said, verbally, that he did not mean to ap- pear as attorney. At the last term S. had ob- tained a rule that all proceedings should be set aside ; but no bail had been entered. Mr. Jones, for plaintiff, moved to vacate the rule which was so obtained, on the ground that the interference by S. was irregular. Per Curiam. S , appearing in the manner he did, must be considered as a mere stranger, and could not take any rule in the cause. The defendant has neither appeared in person, nor by attorney, nor entered bail ; therefore all the proceedings must be set aside. And the court, considering it as improper practice in any attor- ney to attempt to appear as agent, but not as- attorney, add, that S. himself pay the costs. COL. AND CAINES. 1799 CORNELL, v. ALLEN AND TALMADGE. CORNELL v. ALLEN AND TALMADGE. Nonsuit set aside Cause settled Notice to Attor- ney Costs of Motion. MOTION to have judgment of nonsuit for not bringing on the cause to trial, set aside. The suit was against the defendants jointly, on a promissory note. Talmadge only was brought in, and he employed an attorney. The note was afterwards, by agreement be- 76*] tween Allen and a third person, *taken up, and the costs paid by that person to the plaintiff's attorney. The attorney employed by Tal- madge, notwithstanding he was informed by the plaintiff's attorney that the note was so taken up and the costs paid, filed a plea, the general issue, and served a copy on the plaint- iff's attorney ; nd in a subsequent term, after there had been a circuit in the county, ob- tained the above rule for judgment of nonsuit. Judgment set oxide, and the attorney employed by Talmadge ordered to pay to the plaintiff's at- torney the costs of this motion. B. MURRAY v. SMITH. Costs of Declaration and Rule to Plead No Bail. THE cause had been removed by habeas corpus, and the plaintiff filed a declaration, and entered a rule to plead ; but the defendant not having put in bail, a procedendo issued, and the plaintiff prevailed in the inferior court. On a reference to the judges by both the par- ties, they declared that the plaintiff was not en- titled to have the costs of the declaration and rule to plead in this court taxed against the de- fendant, these services being useless, until the defendant has put in bail. B. LECONTE . PENDLETON. Pleading Nul tiel Record and Nil Debet Election. Citation Carnes v. Duncan, Col. Cos., 41, ante. rpHE declaration in this cause consisted of a J- single count in debt on judgment, ren- dered in the State of Georgia, to which the defendant pleaded, 7-7*] 1st. Nul tiel record, and 2. Nil debet, with notice of special matter. It was then moved that the defendant show cause why one of the pleas should not be struck out. Mr. Harrison, for plaintiff, in behalf of the motion, insisted that the record of Georgia is, by the Constitution of the United States, enti- tled to implicit faith ; and if so, the two pleas could not stand together ; or if such faith is not to be given, the plea of nul tiel record is a mere nullity, and ought to be struck out, and cited to this point, 1 Douglass, 6 ; 2 Dallas, 302 ; 1 Cromp. Prac., 173. ,He also contended that one plea being triable by the court, and the other by the jury, it was an additional reason why they ought not to be allowed to stand together. The defendant contended, in reply, that the issue on nul tiel record to judgments rendered COL. AND CAINES. in other States, can only be an issue to the country, and that therefore both these pleas must be tried in the same manner. He relied on the case of Walker et al. v>. Wilier (Doug- lass, 1). The court, without giving any opinion on what was also made a question between the parties, whether nul tiel recoi-d was at all plead- able in the case, granted the plaintiff the fol- lowing rule, viz. : Ordered, That only one of the two pleas in this cause be allowed, and that the defendant, within four days after the notice of this rule, do, or in default *thereof that the plaintiff [*7& may elect which shall be allowed, and that the other plea shall be deemed disallowed. ( Vide the case of Carnes v. Duncan, Admr. , ante, p. 35.) Overruled 6 Cow., 41. JULY TERM, 1799. BAKER ads. BURNS. Imprisoned Debtoi' Proceedings for Relief De fectice Inventory, a. Arms not Specified, b. Possession and Ownership of Articles, c. Im- prisonment on Tort. ' d. Stamped Inventory. LEE moved that the defendant be brought up to take the benefit of the Act made "for the relief of debtors with respect to the impris- onment of their persons." Mr. Munro, for plaintiff, objected, 1st. That in the inventory served on him the arms of the defendant are not specified in the schedule. 2. That the inventory does not particularize when he owned and had the articles, 1. Inquest, Motion to set aside Notice of Applica- tion for Commission. 2. Ibid. Ibid. Valid- ity of Plea. TSSUE was joined on the 9th of June last, and J- on the 19th, notice was given by defendant that application would be made this term for a commission ; notwithstanding which, on the 26th, the plaintiff gave notice of trial for the July circuit, at which time an inquest was taken by default. Mr. B. Livingston now moved to set it aside for irregularity. 89 79 SUPREME COURT, STATE OF NEW YORK. 1799 Mr. Harrison, for plaintiff. The defendant having been obliged by the order of last term to elect one of the two pleas, has seen tit to abide by the plea of nil debut ; but no such plea can be received in this action, and it must be con- sidered a mere nullity. The merits of any judgments rendered in a sister State cannot under the act of Congress be examined here. Nul tfrl record is the only plea that is admissi- ble. And as to the notice of the intended ap- plication for a commission, it ought not to operate to procure the defendant a delay, for it was his neglect that he had not applied last term. Mr. Burr, in reply. Whether any testimony involving merits can be admitted under any plea, or whether plea of nil debet is proper in this action, are points not to be tried in this way. The application for a commission is in time, according to rule IX of April, 1796. 8O*] *Per Curiam. Issue not having been joined till after the election was made in vacae- tion, the defendant is in time by the rule of April, 1796. On the other point, we are of opinion that the propriety of the plea is not examinable upon this motion. Let tJie verdict be set aside, and a commission issue ; the costs to abide tJie event of tJte suit. HASKINS ads. GRISWOLD. Demurrer for Delay Leave to Withdraw and to Plead. BURR, for defendant, moved for leave to withdraw his demurrer and plead issuably, on affidavit that he had merits which he did not know of until after he had filed his de- murrer. Mr. Riffff* insisted that as the demurrer was frivolous and only put in to obtain delay, the de- fendant ought not now to be permitted to with- draw it. He then read a counter affidavit on the point of merits, showing an acknowledgment on the part of the defendant, subsequent to the commencement of the suit, of the justness of the demand, and a promise to pay it. Per Curiam. It appears upon the face of the demurrer itself that it was frivolous and for the purpose of delay. If a defendant puts in a frivolous demurrer, and then applies to the grace of the court, he shall have none. He has acted unmeritoriously, and shall be held to The defendant must take nothing by his mo- tion. 81*]*SWARTWOUT, Manucaptorof SANDS, ads. GELSTON, Assignee of the SHERIFF OF NEW YORK. 1. Retainer and Bail Notice Due Service. 2. Stay of Proceeding* on Bail-bond Laches. THIS was an application to stay proceedings on bail-bond. The attorney for defendant in the original suit had given notice of retainer 1)0 and of bail at the same time, by leaving it at the office of plaintiff's attorney which was kept in his dwelling-house, when no person was present. It appeared that two terms had elapsed before the present suit was commenced. It was insisted, 1st, that the service of notice was regular, and to this point was cited 4 Duru. & East, 464. And 2d, that the plaintiff had been negligent in delaying so long to put the bail-bond in sujt. (Barnes's Notes, 103.) Per Curiam. The notice was not duly served. It should have been given to some person in the house. To make a notice good, it must be shown that everything has been done to bring it home to the party. The service must first be on some person in the office, and be- longing there ; if nobody is there, it must be upon some one in the house where the attorney resides or the office is kept ; and if nobody is there it may be left in the office. But as there has been a negligence on the part of the plaint- iff in not putting the bail-bond in suit at the subsequent term, we will not now fix the bail for the irregularity of the notice, which the prevalence of the yellow fever in the city at the time may in some measure excuse. *Let the proceedings stay on payment of [*82 costs,and receiving a justification of bail if required. Mr. Wortman for defendant. Mr. Coleman for plaintiff. WATERS, Sheriff of Orange, ads. THE PEOPLE. Contempt Sheriff Attachment Personal Knowledge of Execution Delivery to Deputy and Affirmance. THE sheriff Avas brought in upon an attach- ment, and the plaintiff in the original suit having filed interrogatories within the four days allowed him, and the sheriff having also filed his answers as taken by the clerk, the fol- lowing judgment was entered: Per Curiam. A sheriff is not to be consid- ered as in contempt for not acting on an execu- tion which never came to his personal knowl- edge, or was not lodged in his office. But in this eae it appears the f. fa. was delivered to a deputy, and we need not say whether such delivery be good so as to charge the sheriff himself, because here the sheriff afterwards affirmed the receipt by interfering and acting. He did not return it within forty days, and his answers are not satisfactory. The court adjudge him to pay a fine of twenty dollars for the contempt, and also the costs of the rule and attachment, and to stand committed till the fine and costs be paid. Overruled 6 Cow., 42. IN THE MATTER OF M'KINLEY & CO., absent debtors. Attachment Payment by Surety Superseded*. MUNRO, indorsee of a bill of exchange drawn by M'Kinley & Company, sued out an attachment under the Act passed 4th COL. AND CAINES. 1799 CANNON, MANUCAPTOR, ADS. CATHCART. 82 April, 1786, for relief against absconding 83*] *and absent debtors, and seized a vessel, the property of M'Kinley & Co. Afterwards Munro received the amount of the bill from Wheeler, his indorser, but it was agreed between Munro and Wheeler, that the proceedings should -still go on for the benefit of the latter, and Munro be considered as his trustee. Application was then made on behalf of M'Kinley & Co., to the recorder for a supersedeas, upon the ground that plaintiff, after having been satisfied for his demand, could not still retain the attachment. The recorder allowed the supersedeas, from which there was an appeal from this court. Per Curiam,. The 22d section of the act provides, ' ' That if any person against whose estate or effects such warrant of attach- ment shall be issued, shall at any time before trustees are appointed, apply to the judge who shall have issued such warrant, and give such .security as such judge shall direct and approve, to the person or persons at whose instance such warrant issued, to appear and plead to any suit or action to be brought within six months thereafter, &c., and to pay all such sums as may be adjudged in such suit or action, then such judge shall issue a supersedeas." And the 23d section provides, ' ' That in all cases where, upon any such attachment or attachments, any ship or vessel, or any part thereof, shall be seized or attached, it shall be lawful for the judge who shall have issued such warrant or warrants, to cause such ship or vessel, or part thereof, so seized or attached, to be valued by indifferent persons; and if any person will give security to be approved of by such judge, to the people of the State of New York, for the 84*] benefit of the creditors *of .such debtor, to pay the amount of such valuation to the trus- tees to be in such case appointed, then such judge shall cause such ship or vessel to be dis- charged from such attachment." Although a payment may be equivalent to giving the security required by the 22d section of the act, as has been insisted in the argu- ment, yet that certainly must be a payment by the principal debtor, and not by his surety, or one who is collaterally responsible; the appli- cants, therefore, do not come within that sec- tion. The next section provides express- ly that the security shall be given for the bene- fit of all the creditors, and therefore, as the in- dorser here who paid the money, must be con- sidered as a creditor, he has a right to avail him- self of this attachment, and Munro may be con- sidered a trustee for his benefit. If the prosecutor is paid, and the applicants would avail themselves of it, they must resort to their plea. Let the order be reversed. S. C., 1 Johns. Cas., 137. Cited in 16 Johns., 14, 164 ; 10 1ST. Y., 67 ; 3 Barb., 13. OCTOBER TERM, 1799. CANNON, Manucaptor, ads. CATHCART. Costs Special Bail Exoneretur Demand for Costs. IN January Term last, the defendant as special bail was relieved, and an exoneretur COL. AND CAINES. was ordered to *be entered, on payment [*85 of costs. The costs not having been paid, the proceedings went on; and now it was moved by Mr. Burr to have him relieved, on the ground that costs never having been demanded, or a bill exhibited, there was no neglect on the part of the defendant in not having paid them. Per Curiam. The discharge ordered at last January Term was conditional, and it was the duty of defendant to have paid the costs to plaintiff without waiting for a demand or the tender of a bill. If he is relieved now, it must be on payment instanter of the costs or- dered last January Term, and also the costs of the subsequent proceedings, including the costs of resisting this application. Let him talce the effect of his motion on those conditions. PL ATT v. BOBBINS ET AL., Administrators, &c., of SMITH. .Motion for Judgment Pleas Demurrer. A JUDGMENT against Smith in his lifetime had been revived by scire facias against the defendants as his administrators, on which there was a judgment by default. A suit was then brought against the present defendants, suggesting a devastamt, to which they pleaded, I. Plene administravit. II. That the defendants as administrators, did not eloigne the assets. *III. That Smith, their intestate, exe- f*86 to the cuted before his death, a bond of $50,000 United States, which remains unpaid. It was now moved on behalf of the plaintiff in the suit, that judgment be rendered against, the defendants by default, for it was insisted that as to the pleas put in, they were mere nullities. It was said in reply that this was not the regular method of testing the validity of pleadings, and that the plaintiff ought to have demurred. Per Curiam. If pleas are not palpably bad, and void upon the face of them, the opposite party must resort to his demurrer. All the court have doubts as to one plea, and some of them as to all; and therefore Plaintiff must take nothing by his motion. Mr. Boyd for plaintiff. Mr. Burr for defendant. SALSTONSTALL ads. WHITE. Ejectment Admitting new Parties in Interest Lands Surveyed and Improved. PROCEEDINGS in ejectment for the Hol- land Company lands, so called, in the County of Ontario, as for a vacant possession. Mr. D. A. Ogden moved that Wilhem Willinck and three others, commonly called " The Hol- land Company," be made defendants, instead of Salstonstal'l, the present defendant. *Mr. Troup, on the same side. Any [*87 one whatever claiming title, may be made de- fendant, though he has never been in actual possession; and to this point cited Sty., 368; 91 78 SUPREME COURT, STATE OF NEW YORK. 1799 Sid., 24; 1 Lilly's Abr.,674; 4 Burn. & East, 122; Comb., 118. Mr. E. Livingston, contra. It is settled that in proceeding for a vacant possession, one claiming title, who is not already a party to the suit, cannot be admitted to defend, but must re- sort to his action of ejectment. He cited 2 Cromp. ,191,192; Statute of this State passed 21st Feb., 1788, sec. 29, 30; the first of which sections subjects tenants to penalties for not giving notice to their landlords of declarations of ejectment; and the last of which provides that landlords may be admitted defendants by being joined with their tenants. From which it fol- lows that no case is contemplated by our laws of admitting anyone to come in and defend who is not a party to the original suit, except a landlord who has a tenant in possession. Mr. B. Livingston, in reply. In this case the lands, in judgment of law, are not vacant. The suit is brought to recover several hundred thousand acres, and it appears by the affidavit, that the Holland Company have surveyed the tract, and erected buildings on some part of it. Per Curium. The strict principles applica- ble to proceedings as for a vacant possession in England, cannot, without manifest incon- venience, be applied to unlocated lands in this country. Besides, here has been a survey of this land, and buildings have been erected on some part of it. Motion granted. 88*] *BROWN v. MITCHELL. Ejectment Confiscated and Forfeited Estates Improvement* Act of May 1, 1786, sec. 10. THE lessor of plaintiff recovered at the last Dutchess Circuit on title existing prior to 1776, and the defendant set up title derived from the State, under a sale by the commis- sioners of forfeitures, prior to 1782, and under the Act passed October 22d, 1799, entitled, " An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this State, and for declaring the sovereignty of the people of this State, in respect to all property within the same." The Attorney-General, for the defendant, now moved for the appointment of appraisers under the first section of the Act passed May 12th, 1784, entitled, " An Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes there- in mentioned," to ascertain what improvements the plaintiff must pay before he can take pos- session. Mr. Evertson, contra. The act of 1784 cannot apply to sales made prior to it. The Attorney-General, in reply, cited the 10th section of the Act passed May 1st, 1786, entitled, " An Act further to amend an Act entitled, ' An Act for the speedy sale of the confiscated and forfeited estates within this State, and for other purposes therein men- tioned.' " 89*] *Per Curiam. The act last cited its retrospective, and affects prior titles, and so courts have considered them. Let the defendant take the effect of his motion. 92 GEORGE ads. BENNINGER. Notice of Argument For Day in Term Objec- tion Waiver. THE court in this case determined, that if a notice of argument is given for any day in term, subsequent to the first, the party who would object to it on that account must appear and state such objection at the time when the motion is brought on; and if he does not, he will be deemed to have waived such objection. DRAKE v. MILLER. Contempt Attachment Certiorari Defective Notice of Return Act of January 24, 1797. A JUSTICE OF THE PEACE was brought up on attachment for contempt in not having made return to a certiorari directed to him, and made returnable "before us." Per Curiam. The Act passed the 24th of January, 1797, entitled, "An Act concerning the Supreme Courts," enacts, "That all writs and process to be issued from and after the ex- piration of October Term in the present year, and returnable in the Supreme Court, shall be made returnable before our Justices of our Su- preme Court of judicature," &c., and process made returnable in any other form must be considered as returnable out of court and void. Let the attachment be discharged icith costs. Overruled 5 Johns., 167, 233. *VIELIE ads. TOWERS. [*90 Costs Nominal Verdict Certificate af Judge out of Court Act of February 12, 1877. THIS was an action of assault and battery, and a verdict for plaintiff at the circuit, for six cents damages and six cents costs. A certificate was given by the judge who pre- sided at the trial, to entitle the plaintiffs to full costs, but it was not given at the trial. Mr. Woodworth, for the defendant, under a motion that the certificate of the judge be va- cated, now brought up the question whether this certificate is conformable to the 5th sec- tion of the Act entitled, "An Act to reduce the laws concerning costs into one statute," passed the 12th of February 1787. He con- tended, that agreeable to this act the certificate must be granted by the judge sedente curia, and could not be granted with any effect after- wards. Such, he said, was the English statute, and such their practice under it. Per Curiam. The Statute enacts, "That in all actions of trespass and assault and battery, commenced or prosecuted in the Supreme Court, wherein the judge, at the trial of the cause, shall not find and certifv under his hand upon the back of the record, that an as- sault and battery was sufficiently proved, or that the freehold or title of the land mentioned in the plaintiff's declaration, was COL. AND CAINEH. 1800 DOLE, SHERIFF OF RENSSELAER, v. MOULTON ET AL. 90 chiefly in question, the plaintiff in such action, in case the jury shall find the damages to be udder forty shillings, shall not recover or obtain more costs of suit than the damages so found shall amount to." This provision being reason- 91*] ably interpreted, means only that *the cer- tificate should be given by the judge who pre- sided at the trial, and not that the act of mak- ing out the certificate should be performed then. JANUARY TERM, 1800. DOLE, Sheriff of Rensselaer, v. MOULTON ET AL. 1. Amendment of Pleading 8th Sec. Rules of April. Term, 1796 Adding New Pleas. 2. Election of Pleas Demurrer. was an action upon a bond given to the J- sheriff, conformably to the Act passed April 5th, 1798, entitled, "an Act regulating the liberties of jails." The defendants pleaded five pleas : 1. Non estfactum. 2. Performance of the condition. 3. That the escape was by casualty, and that there was a return before suit brought. 4. That the penalty is for more than double the amount of the sum for which the pris- oner was confined, and so not agreeable to the statute. 5. That the condition of the bond is not conformable to the statute. 92*] *But the two last pleas were added after demurrer to the second and third pleas, and before default or joinder. Mr. Henry, for plaintiff, withdrew his demur- rer, and now moved that the defendant elect one of the three first pleas and abide by* it, for he insisted that the pleas were incompatible. And he moved at the same time that the two last pleas be struck out for irregularity. Mr. Woodworth, contra. He contended that pleas have been allowed to stand together, though seemingly incompatible; and cited 2 Black. Reports, 1093. And in answer to the last motion he insisted that it was regular to file the two last pleas at the time he did, under the provision contained in the 8th section of the rules of the April Term, 1796. Per Curiam. The rule referred to by the defendant's counsel, that "Where there shall be a demurrer to a declaration, or to any other pleading, not being a plea in abatement, the party against whom the demurrer shall be taken may, at any time before the default for not joining in demurrer shall be entered, amend the pleading demurred to," will never extend to permit the party to add new pleas ; those pleas must therefore be struck out. As to the" first motion, the plaintiff, after demurrer, comes too late to drive the defend- ant to an election. 93*] *Let Ihe defendant take only the effect of his motion in respect to the tiro last pleas. COL. AND CAINES. VANDERWERKER ads. CUYLER. Stay of Proceedings Second Suit after Nonsuit Costs Motion after Plea made. TUDGMENT as in case of nonsuit had been the defendant put in a plea of nonestfactum in the October vacation following. On this statement it was now contended that 99 116 SUPREME COURT, STATE OF NEW YORK. 1800 the proceedings were regular, as the attorney had no other way of enforcing the payment of the costs, and that even if it were otherwise, the defendant was too late to ask relief in this way after plea pleaded, and the subsequent delay. Mr. Ten Broeck, in reply, offered counter sup- plementary affidavits, but the court would not suffer them to be read, observing that a party can never support his motion by, any affidavits but those on which he originally grounds it. The court having taken time to advise, held that the defendant should take nothing by his motion. They said that the attorney had no other way of compelling the payment of his costs; and besides, that the defendant had suffered such a length of time to elapse, that they would not now relieve if there had been originally just grounds for their inter- ference. VISCHER ET AL. ads. VAN ALEN. Ejectment Default against Tenant Consent Rules entered. D'TEN BROECK moved to set aside a . default entered against the tenant for not pleading. Per Curiam. In this case it appears that the consent rules were entered into, a new declara- 117*] tion *delivered, but no plea filed, and thereupon judgment was entered by default against the tenant. Although at the time of signing the rule the plea ought to have been put in, yet the enter- ing the default in this manner was improper. It should have been against the casual ejector, according to the terms of the consent rule. There can be no judgment by default against the tenant. Let the defendant take the effect of his motion. IN THE MATTER OP GEORGE CASCADIER, an insolvent debtor. Insolvent Debtor Rule on Trustees to Report. A N application was made in behalf of the t\. debtor, that the trustees be laid under a rule to report within eight days. Per Curiam. The debtor as well as his creditors has an interest in the account to be rendered by his trustees, and is equally entitled with them to demand it. It is therefore ordered that they account within eight days after service of a copy of this rule. LANSING, who is impleaded with DOE, ads. GORHAM. Bail Default- Time to Plead Enlarging Rule. FOOT moved to set aside the default and to be let in to defend, upon an affidavit of 118*] merits, and that *the omission to plead was occasioned by urgent business. He stated that it was a case of bail, and therefore is to be 100 considered as one which comes recommended to the grace of the court. Mr. Lush, contra, and read counter affidavits as to merits. Per Curium. If a party wants more time to plead, he must apply to a judge at his cham- bers to enlarge the rule. This is stated to be an application in favor of bail, but it should be remembered that the cases of bail to which the court are particularly indulgent, are where bail wants time to surrender the principal, but -here he comes to defend the suit, and therefore stands in the same situation with any other defendant. Motion denied. THE PEOPLE, at the relation of JANSEN ET AL., Admrs. of JANSEN, v. THE JUDGES OF ULSTER. Mandamus Writ of Error Costs Executors and Administrators. p ARDINER moved for a mandamus to the vT Judges of the Common Pleas of the County of Ulster to compel them to give costs for plaintiff, a recovery having been had be- fore them for the plaintiffs for a sum less than 10. It was now contended that it has been settled that executors or administrators cannot sue in a justice's court, it must follow that they shall have costs *in the court to which they [*1 1O are compelled to resort, and therefore that the only question now left to be considered was whether a mandamus was the proper remedy in this case, or whether it should be error, as the court seemed to intimate at last term. Error, it was said, would only lie to reverse a judgment, and not to compel the rendition of a judgment. He cited to this point, 3 Bac. Abr., 535 ; 1 Str., 698 ; Cowp., 378. That this was a proper case for a mandamus, he cited 1 Burr. 5(58 ; 3 Bl. Com., 110 ; 1 St., 530 ; and 11 Co., Medcalf's case. Cur. ad. vult. Per Curiam. After looking over all the au- thorities, we are of opinion that a writ of error will well lie here, and therefore refuse this ap- plication for a mandamus."* Motion denied, VAN PATTEN v. OUDERKIRK. Certiorari Return of Testimony Other Return. ON certiorari. Emott, in behalf of the justice, moved to quash the writ, because it re- quired him, among other things, to return the testimony. It was admitted that no notice had been given the opposite party, but it was con- tended that none was necessary. Per Curiam. This writ is the right of the party who takes it out, and the justice is bound to obey it *at his peril. He is not, [*12O however, bound to return anything but what we can legally require of him, notwithstanding the command expressed in the writ. In this case . Coi . AND CAINES. 1800 GlLLESPIE ADS. PFISTER AND M'COMB. 120 he ought to return all but the testimony, and to take no notice of that part of the precept which enjoins him to return that. Motion denied. 8. C., 2 Johns. Cos., 108. Cited in 25 Wend., 169 ; 5 Hill., 2t>8. GILLESPIE ads. PFISTER AND M'COMB. 1. Security of Costs One Plaintiff absent from the State and the other Insolvent. 2. Idem Assignment of Cause of Action. DENDLETON moved that the plaintiffs file JL security for costs before they be allowed to proceed in the suit, on affidavit that one of the plaintiffs had removed to New Jersey since the commencement of the suit, and that the other was confined in jail for debt ; and fur- ther, that the defendant was informed and be- lieved that the cause of action was assigned. He insisted that the insolvency of a plaintiff was the same thing as it respected the defend- ant's remedy for his costs as living without the reach of the process of the court, and that the assignment leaving him only the trustee for the benefit of a stranger, it was reasonable that se- curity should be filed. Mr. B. Livingston, contra. Per Curiam. It is sufficient that one of the defendants resides within the reach of the pro- 121*] cess of the *court, and we can take no notice whether he is insolvent or not. And as to the assignment, the defendant has nothing to do with it. Motion dented. ANDREWS v. ANDREWS. Contempt Witness Attachment Tender of In- sufficient sum for Expenses No Objection. DTEN BROECK moved for an attachment . absolute against a witness, on affidavit that he was regularly summoned and money tendered him for his expenses, which he did not object to for its insufficiency, but positively refused to attend. He cited 1 Black., 49 ; 2 Str., 1150. Per Curiam. Here is a strong case of palpa- ble ' contempt, and therefore the court will award an attachment in the first instance. The sum of money tendered may, or may not have been adequate, but as the witness did not ob- ject to it at the time, it is to be considered suf- ficient. NOTE. A witness may dispense with the legal f o *tn of serving a subpoena, and under such service be b "ubject to attachment. 1 Yeates, 303. COL. WOODWARD ads. QUACKENBOS. Ejectment Default of Casual Elector Rule on Tenant to Plead. IT appeared that the plaintiff's attorney, at the time of delivering a new declaration, after the consent rules were exchanged, noi having received a plea, entered a rule in the cause against the tenant to plead in twenty days ; which not being done, he proceeded to enter a default against the casual ejector. Mr. Emott now moved to set aside this default for irregularity. He contended, that until the tenant had complied with all the requisites of the consent rule, he *could not be con- [*122 sidered as being so in court as that he could be known as a party to the suit, and that there- fore no rule could be taken against him. Mr. Quackenbos said he had proceeded as had always been the practice, at least at Albany and in the northern part ofthe State. Per Curiam. The entry of the default in this manner was certainly irregular. No rule could be entered against the causal ejector in a cause entitled against the tenant. The signing the consent rule, delivering a new declaration, putting in common bail, and filing a plea, are all simultaneous acts ; should the tenant, therefore, neglect to file his plea in- stanter, he is to be considered as not appearing in the suit, and then default is to be entered against thie causal ejector. But the default against the causal ejector is taken under the first rule at the return of the writ, and not ir consequence of any new rule. Default set oxide. SLOSSON ads. WHEATON. Change of Venue Assumpsit Locus of Cause of Action General Affidavit. DTEN BROECK moved to change the . venue, on affidavit that the caiise of action arose out of the county. Mr. Emott opposed the motion, on the ground that this being an action for money had and received, a general affidavit was not sufficient. Per Curiam. It has already been decided that an assumpsit, where the count is general, the court *will never change the venue [*123 on a general affidavit. To entitle the defendant prevail in his motion, the affidavit must be special ; that is, it must state that the defend- ant has reason to believe that special matter is intended to be given in evidence, enumerate the particulars, and declare that it arose in the county to which he would remove the cause, and not elsewhere. Motion denied. KNAPP, Executor, v. MEAD. Notice of Trial Motion. rpHIS being the day assigned for the trial ot -L the record on which this suit was brougT^ Wl 123 Mr. Beers now moved to bring it on, but it was objected for defendant that there ought to have been a regular notice of trial of seven days, as in other cases, which had not been given. The court took time to consider how the practice ought to be settled. Per Ouriam. The trial by record must here- after always come on by a motion of four days, instead of the old practice of assigning a time, which the present rules render useless. SUPREME COURT, STATE OF NEW YORK. 1800 124*] *SWIFT ads. SACKET. LIVINGSTON ads. THE SAME. 1. Writ of Right Nonsuit Default of Demand- ant. 2. Idem Entry of Attorney's Name Misprision of Clerk. Citations Garth., 173 ; Co. Litt., 139, b. pMOTT, for the tenant, moved on the first Jj day of term that the demandants be called, and that for nonappearance their defaults be entered. And now, it being the quarto die post, he again moved that the demandant be called to appear and excuse his default, or that he be nonsuited. To shew that this was the correct practice, he cited 7 Viner Abr. , 436 and 437 ; D. 9, 10. Mr. Scott appeared for demandants, and without attempting to show any sufficient ex- cuse, read an affidavit that Mr. Thompson was the attorney of record for the tenant; whereas it appeared from the clerk's minutes that the motion had been made on the first day by Mr. Emott in behalf of Mr. Radclift, who, he con- tended, was a stranger to the suit, and could take no rule in it. Mr. Emott said, in reply, that the motion was really made in the name of Mr. Thompson, but that the mistake was in the entry made by the clerfc on the minutes, and must be considered as his misprision, and so could not injure. Per Curiam. It is settled in Oarthew, 173 (Cloberyv. The Bishop of Exon), that the tenant, in a writ of right, is only demandable on the t/uarto die post ; but that the demandant is liable 125*] to be called on the *primo die placiti, and for nouappearance that his default may be en- tered, which, if he does not appear and excuse on the quarto die po*t, subjects him to a non- suit. (Co. Litt., 139, b.) At common law, on every continuance or day given at or before judgment, the plaintiff or demandant might have been nonsuited, and before the Stat. of 2 Henry IV. after verdict, if the court gave a day to be advised, at that day the plaintiff was demandable, and therefore might have been nonsuited if he did not then appear ; but that is remedied by our Statute. After award to answer, however, or demurrer in law joined, plaintiff for not appearing shall still be non- suit, for he is not helped by the Statute. As to the misentry of the name, it is to be considered as the clerk's misprision and may be amended. Judgment of nonsuit. 102 EDWARDS ad*. M'KINSTRY. Default Motion to Plead on Affidavit of Merita only. ON a motion to set aside a default, and that the defendant have leave to plead, on the sole ground that he has merits, -the plaintiff not having lost a trial, the court said : When a party swears to merits, the court will strongly incline to let him in, but he must be able to suggest some excuse for not having pleaded ; such, perhaps, as accident or inad- vertence. Here the defendant does not attempt to give any reason at all, and therefore he must take nothing by his motion. *LARROWAY ads. LEWIS ET AL. [*126 THE SAME ads. VAN LOON ET AL. Attachment Costs of Continuance Notice of Taxation On Council only. 1 Salk., 83, not approved. VAN VECHTEN moved to set aside the at- tachments which in these two cases had been granted for costs of putting off the trials, and that there be a retaxation. He contended that attachments are ordinarily granted on rules to show cause, and are never made absolute in the first instance, but in very flagrant cases ; and that if the party answer he shall be discharged from the attachment ; and cited 1 Bac. Abr., 183, B; 2 Hawk. Plea. Cr., 214. He further insisted that there must be a demand made of the costs after the bill has been regularly taxed, and at the time of serving the rule to show cause, before the part}' can be considered as in contempt. He cited 1 Barnes, 120; 1 Lilly's Abr., 162. Besides he insisted that according to 1 Salkeld, 83, no attachment will lie at all for the costs of putting off a trial. Mr. C. Elmendolph, in reply, contended that in England the attachment is always absolute in the first instance. He cited Tidd's Pr., 364; Runnington on Ejectment, 142 ; 1 Sellon, 415. Per Curiam. Whenever a cause goes off on motion of the defendant upon payment of costs, the plaintiff has his election, either to wait the event of the suit, and have all his costs taxed together, or he *may make them [*~L27 out instanter under the direction of the court (sub- ject, however, to be reviewed on a future tax- ation if required), and demand them immedi- ately, and if not paid he may proceed with the trial ; or he may waive this privilege and resort to his attachment, but if he does so, he must first have his costs regularly taxed on a proper notice as in other cases, and that no- tice must be served on the attorney in the suit, and not on the counsel, as it has irregularly been in this instance. Had he done this he would have been entitled to his attachment in- stantly, without a previous notice. The notice in this case having been served on counsel, and the taxation having been made the same dav notice was given, the taxation and and all proceedings founded on it were irreg- ular. COL. AND CAINEP. 1800 SEELY v. SHATTUCK. 127 As to the case mentioned from Salkeld, it is anonymous and stands alone ; we lay no weight upon it. Let the attachment be set aside with costs. SEELY t>. SHATTUGK. Mule to Join in Error on Hearing ex-parte Next Term passed. ON certwrari. Notice of the rule for the de- fendant to join in error in eight days, or that the plaintiff would be heard ex-parte, had 'been served in April vacation, 1798, and it was DOW moved for affirmance. Per Ouriam'. The rule is gone ; the plaintiff .should have applied the term after service of 128*] the rule. *He cannot lie by in this manner and revive the cause at any distant period he may choose. He must now take nothing by his motion. HORNBECK ads. LOW. Making Case Enlarging Rule Making Amendments. PER CURIAM. The two days allowed by the sixth rule of January Term, 1799, for making a case, cannot be enlarged by a judge in favor of the party making the case ; but the time which may be enlarged under that rule, is that allowed for proposing amendments, and that for notifying an appearance before the judge, and no other. GIBBS ads. SCOTT. :1. Change of Venue Slander Locus of Cause of Action Affidavit of Defendant Plaintiff's Mission. 2. Idem Impartial Trial Suffi- ciency of Plaintiff's Affidavit. Citation 3 Burr., 1330, 1335 ; 1 Sellon's Prac., 269. THIS was a motion to change the venue in an action of slander, from the County of Albany to Washington, founded on the affi- davit of the defendant's attorney, stating that the cause of action arose in Washington and not elsewhere, &c., as the plaintiff had informed him, and he verily believed to be true. On the part of the plaintiff this was opposed by a counter affidavit, stating that " according to his persuasion and belief, he could not have .an impartial trial in the County of Washington by reason of certain local prejudices." Per Ouriam. The first question is, whether the affidavit on the part of the defendant ought not to have been made by the defendant him- .self , according to the established practice. As 129*] the attorney swears, *however, that the plaintiff confessed' to him that the cause of action arose in Washington, and not elsewhere, oust the defendant. NEWKIRK ET ux. v. FOX. Stay of Proceedings Neglect to Prepare Case Absence of Judge. VAN VECHTEN moved to discharge a judge's certificate staying proceedings, be- cause the defendant had neglected to prepare his case within the two days allowed. It was said, in answer, that the reason was because the judge left the place where the cir- cuit was held so soon after an application to him that it was not possible to have the case completed. Per Curiam. As no reason has been, assigned for the subsequent omission, the de- fendant appears before the court without as. sufficient excuse. Motion granted. COL. AND CAINES. .800 SHARP v. DUSENBURY. 134 SHARP t>. DUSENBURY. Inquest Before Sheriff by Consent Rulings on Evidence, PW. YATES moved to set aside interlocu- . tory judgment, because the sheriff before whom the inquisition was taken had admitted improper and rejected proper evidence. Mr. Emott, on the other side, read an affidavit that it had been agreed between the parties that any evidence might be given before the sheriff 135*] which could *be given on a trial or could have been pleaded. And he now contended that such agreement ought to preclude either party from making objections to the conduct of the sheriff, provided no corrupt intention was to be imputed to him. Per Curiam. When parties agree to submit & controversy to the decision of the sheriff, the inquest is to be considered as in nature of an arbitration, and therefore the court will never set aside the inquisition merely because the sheriff admits improper or rejects proper evi- dence. Motion denied. BEEBE ads. PADDOCK. Notice to Attorney's Clerk Where Served. A QUESTION arose as to the regularity of a service of a notice, which appeared from affidavit to have been made on the clerk of the attorney; the court decided, that as it did not al-*o appear that the notice was served on the clerk while he was in the office, it was there- fore insufficient. THE PEOPLE, at the relation of ALLAIRE, v. THE JUDGES OF WESTCHESTER. Mandamus Contempt. ON affidavit that a bill of exceptions had been regularly tendered to the judges of the Court of Common Pleas of the County of Westchester, who had refused to complete the same, a motion was now made for a mandamus to compel them to affix their seal to the bill of exceptions, or show cause. 136*J *Mr. Munro, for cause, read a counter affidavit, stating that the bill of exceptions varied materially from the truth of the case. Per 'Curiam. If a court of common pleas refuses, without sufficient grounds, to annex their seal to a bill of exceptions, it is a con- tempt for which this court will award com- pulsory process. But it appears here from the aiBdavit on the part of defendants, that the bill of exceptions which was tendered was un- true, and as the party making the applica- tion has not denied the correctness of the state- ment, he must be considered as having con- sented to it. This undoubtedly was sufficient cause for refusal. Motwn denied with costs to the judges for op- posing it. COL. AND CAINES. JENKINS v. KINSLEY. Trial On Record Authentication of Record of Federal Court in Another State. ON a trial by record of an action brought upon a judgment rendered in the Circuit Court of the United States for the Common- wealth of Massachusetts, office copies were offered in evidence. Mr. Williams, for the defendant, objected that there ought either to be an exemplification of the record; or that, the action being brought in a court of this State, upon a record of a judg- ment rendered in a circuit court in Massachu- setts, the record ought, agreeably to the act of Congress, to have the attestation of the clerk and the seal of the court annexed, if there be seal, together with a certificate of the judge, chief justice, *or presiding magistrate, [*137 that the attestation is in due form. Per Curiam. This being a record of a court of the United States, and not of a State court, and so not within the act of Congress prescrib- ing the mode in which the records and judicial proceedings of the courts of any State shall be authenticated, it remains with the court to de- cide upon the sufficiency of the evidence in their discretion. The mode of certifying a record observed in the present instance, being the ordinary method in the Common- wealth of Massachusetts, instead of the technic- al exemplification, the court are of opinion it is sufficient. WARDELL . EDEN. Satisfaction of Judgment Vacating Fraudulent Entry. A BOND had been executed by Eden to War- dell conditioned for the payment of $50- 000, which on the 17th of July last was as-- signed for a valuable consideration to Nathan- iel Olcott, and by him on the 1st of August to- Solomon Rowe, and by him on the 7th of October to the Bank of New York. On the' 7th day of October, Olcott became a bankrupt, and on the next day Rowe. died insolvent. The" bank immediately gave notice to Eden of the" assignment to them, and forbid his paying any part of the bond to Wardell, and gave a notice" likewise to Wardell, forbidding him to receive anything from Eden. On the day of Oc' tober, notwithstanding the notices above, Edefl paid Wardell a small sum of money, $1,500, and thereupon Wardell entered *upon [*138 the record satisfaction of the judgment. It appeared that the bond was originally given both for money due, and to secure such further sums as Wardell should continue to advance. Mr. Hamilton and Harrison, on the statement of the above facts, now moved that the entry of satisfaction be struck out, on the two ground* of irregularity and of fraud. Mr. B. Livingston raised a preliminary ques- tion, whether the service of the notice of the pres- ent motion had been regularly made, as it had only been given to Eden's brother who hap- pened to be at Eden's house, and it did not ap- pear that it had ever come to his personal knowledge ; or, secondly, as it had l)een given to Eden's attorney, by leaving it with his (the 138 SUPREME COURT, STATE OF NEW YORK. 1800 attorney's) brother, who happened to be alone in the office. Per Curiam. Both services cannot be good ; wherever there is an attorney retained, the service must be on him ; therefore the service on Eden himself was irregular, but the service on the attorney's brother being in his office, was good. Lansing, Ch. J., and Lewis, J., were of opinion that the attorney in this case being constituted only an attorney to confess judgment, his authority expired with that act, and therefore he could no longer be considered as attorney in the suit, but they both agreed that the service on Eden was well made. Mr. B. Livingston then, before the counsel for the bank proceeded in the argument, read 139*] counter *affidavits contradicting some of the principal facts contained in the affida- vits on the part of the application. The counsel for the bank contended, that in this transaction a fraud had been prac- ticed between Eden and Wardell on the bank, by entering up the satisfaction after no- tice, which must have been done to defeat the lien, which the judgment had given the bank upon Eden's real estate. They now, therefore, appeared before the court for the purpose of getting that entry of satisfaction vacated, and strongly insisted, 1st. That the entry of satis- faction was irregular, because it was done by the party himself, and not by his attorney. They said that although by statute a party might possibly "appear, prosecute, defend, &c., in person," yet that after he had once made an election to appear by attorney, he could not be known in the suit in person. 2d. That not- withstanding the form of pleadings was still preserved, and suits are still instituted in the names of obligees, yet that courts of law will always take notice of the rights of assignees, and protect them from injury, so that substan- tial justice shall be done between the parties. To show that this had been done, and to what length courts of law have gone, they cited 1 Dura. & East, G19 ; 4 Id., 340. And to show that the court may interpose in this summary way, and lay their hands at once on the judg- ment, without turning the applicants round to a court of chancery*, they cited Viner Abr., tit. Judgment, letter K., a. 636, 4, 5, 6. Or if there should arise any doubts about the facts alleged, the court might on this motion direct an issue. 1 Wilf., 331; Sayer, 253, Barnes's notes, 136. 14O*] *The Attorney- General and Mr. B. lATinq#ton, contra. They said that this was a novel way of bringing up such a question, and that really neither of the parties to the suit were in court. But they insisted, I. That it was perfectly regular for the party to enter up the satisfac- tion himself, and denied that it was either the province or the duty of the attorney to do it ; that the very form of his warrant showed this, for being merely to prosecute and defend, the entering up satisfaction of the judgment could not be considered as being comprised within his powers. (1 Sellon's Prac., 14; Sayer's Reports, 217 ; 2 H. Black., 608.) They said that by the practice of courts, warrants of at- torney are in force for one year and a day, for the sole purpose of enabling the attorney to 106 sue out execution (Bac. Abr., 299); that the general warrant of attorney only extends to judgment and execution, and that there ought to be a special warrant made out for the pur- pose of authorizing an attorney to enter satis- faction, which might be made to the attorney who had conducted the suit, or to any other. (Sir Thos. Raymond, 69 ; 1 Cromp. Prac., 378 ; Sellon, 546 ; Impey, 408.) They observed that the doctrine contended for on the other side, viz. , that all acts relating to a suit after it was instituted must be done by the attorney, could not be true, inasmuch as it was settled law that a retraxil must be always entered by the party himself, and could never be done by at- torney. (2 Sellon, 338; 3 Salk., 245; 8 Mod. Rep., 58; 3 Black. Com., 296.) As to the second point, that courts of law will always take notice of the rights of as- signees, they *said this could only'be [*141 sub modo, for that choses in action were only assignable by way of covenant. That they might possibly form a consideration for an ats- fwmpfrit, and if so, the original instrument is gone, the demand becomes a personal one, and the action must be brought upon the promise ; if not, then the plaintiff must always resort to a court of equity. (2 Bl. Reports, 821 ; 4 Burn. AEast, 341, 640.) They insisted further, that at any rate this was not the proper method for the plaintiff to procure a remedy, by va- cating the judgment on motion. The law in such case would oblige a party paying money after notice to pay it over again, and the de- mand, therefore, from the time of notice, is purely a personal one. (1 Douglass, 238 ; 6 Durn. &East, 361.) Courts of law, they said, never vacate a judgment for fraud, but only for irregularity, or in cases of legal disability, such as of an infant, feme corert, or a person under duress, where the instrument is void- able. (1 Sellon, 377.) At common law the remedy was by action of deceit, and if it hap- pened subsequent to judgment, by andita, que- rela. In cases of fraud or other controverted facts, an issue is always to be directed. (Cowp., 727.) But if this motion should suc- ceed and an entry be made vacating the judg- ment on the ground of fraud, and afterwards a jury, whose exclusive province it is to judge of fact, should find the fact differently, then the record would be at variance with itself. Here, however, it would be improper in this court to direct an issue, for the Court of Chan- cery is the proper forum for that. Why can- not the plaintiffs proceed by scire facias, on the judgment in the name of" Wardell against Eden, when the pleadings would afford an issue of fraud or no fraud, to be tried by a *jury? As to the notice of the assign- [*142 ment, SQ much relied on, they contended that the farthest the court could go as to notice to assignees, would be to put them on the same footing with indorsers of bills of exchange, and there it was not only necessary to give no- tice, but to add that the indorser was looked to for payment; no such thing was pretended here. They therefore insisted that the appli- cants had failed, both on the ground of sub- stantial facts, and in the method taken to obtain relief. It was strenuously insisted that the remedy in such case is. by resorting to a court of chancery. COL. AND CAINES. 1803 WARDELL v. EDEN. 142 Messrs. Harrison and Hamilton, in reply, said this was the only way that the plaintiffs had to secure the property from being placed entirely beyond their reach, and that although a scire facias should be brought as suggested on the "other side, yet that' they could have no secu- rity for satisfaction of their judgment in the event of their recovering one. That as to the instance of a retraxit which had been cited as militating with the principle they contended for, it did not apply, for the attorney is to prosecute the suit for the ends of obtaining satisfaction, but a retrofit is not a prosecution for such end ; it is entering a bar to the suit without having received satisfaction. That it is important that attorneys should make the entry of satisfaction, as it would guard the court against fraud, for the court can always know its own officers, but cannot be supposed to know the party. They denied the position that courts of law could vacate judgments for irregularity only, and relied upon the case of the quare impedit cited from Viner, where a judg- ment was vacated on the ground of fraud, not, 1 4-3*] they admitted, *by motion, but that, they said must depend on the extension of that form of practice of late years. They said that they should not dissemble, but that where the facts were disputed there might be some doubt as to the mode; perhaps the directing of an issue might be the most advisable method ; but in the mean time that the judgment ought to T)e considered as remaining unsatisfied, yet not subject to any new liens. That as to send- ing the plaintiffs to a court of chancery, it was objectionable, I. Because although a court of chancery will not interfere where the party has a remedy at law, yet the converse of the proposition is not true. II. Because it will "be to turn a legal lien, which the plaintiffs have, into a mere equitable lien. III. Be- cause if there is a remedy at law, chancery will refuse to relieve. They therefore prayed that their application might be granted. Cur. ad milt. On the last day of term, BENSON, J., de- livered the following order as the opinion of a majority of the court; LANSING, Ch. J., and LEWIS, J., dissenting: "On reading and filing the affidavit of Martin S. Wilkes and the papers thereunto annexed, on the part of the President, Direct- ors and Company of the Bank of New York, claiming to be assignees of the judgment in this cause, and the affidavit of the said Joseph Eden and the papers thereunto annexed on the part of the said Joseph Eden, "Ordered, That a vacatur of the entry of satisfaction of. the said judgment be entered on 144*] the record, *and a minute thereof made in the book of dockets of judgments. Provided, that the said President, Directors and Com- pany shall not cause a scire facias or any writ of execution to be sued, or a suit in debt to be brought on the said judgment, until they shall have further applied to the court, and it is to be understood also that the said Joseph Eden may at any time apply to the court that the entry of satisfaction may be deemed un- vacated, or that satisfaction be entered anew on the said record, and the court will on such future applications of the parties respectively take such order as shall be just; and it is further ordered, that the clerk cause a COL. AND CAINES. copy of this rule to be annexed to the said record." 8 .C., 2 Johns. Cas., 121. Affirmed-2 Johns. Cos., 258. See 1 Johns. Rep., 530. Cited 13 Johns., 22; 19 Johns., 52; 6 Hill., 239; 66 Barb., 243 ; 14 Hun, 474 ; 3 How. Pr., 388 ; 13 How. Pr., 27 ; 37 Howard Pr., 3 ; 2 Code R., 5 ; 6 Pet., 657. APRIL TERM. 1803. TOWNSEND v. NEW YORK INSURANCE COMPANY. 1. Commission Objection to Commissioners Failure to join or object. 2. Idem Delay Costs. TVT OTION for a commission to examine. This llL cause had been once deferred for want of testimony, to acquire which a commission had issued. The defendants afterwards, but pre- vious to the last circuit, gave notice to the plaintiff that he should, on affidavits (the copies of which he annexed), move for a commis- sion to examine witnesses, and specified the *names of the commissioners. At the [*145 time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commis- sion, and in a few days gave the regular notice for trial. At the circuit, an application was made to postpone the cause, on the usual affi- davit of the want of that testimony, to obtain which the commission noticed was to be sued out. The plaintiff's counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, the cause stood over of course. Mr. Hoffman now moved for the commission. Mr. Hamilton objected to its being directed to the commissioners named. BY THE COURT. The commissioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded. Mr. Hamilton then argued against the appli- cation, because it was uncertain how long it would tie up the cause, and the defendants had not entered into any stipulation. BY THE COURT. It is unnecessary, for they take the commission at their peril. Let it issue. Mr. Hamilton hoped that it would be on paying the costs of the circuit. *The court ordered them, and seemed [* 1 46 to think, that in all cases of delay, costs should follow. GRISWOLD ET AL. v. STOUGHTON. 1. Default Sufficiency of Affidavit. 2. Judg- ment Irregu larity Perfecting Judgment. A SSUMPSIT on a promissory note. The IA. plaintiffs had proceeded under the act of the Legislature, and had entered the demand of a plea in the clerk's office, without serving it on the defendant, who lives in the city of 107 146 SUPREME COURT, STATE OF NEW YORK. 1803 New York. Judgment by default having been obtained, Mr. Pendleton moved to set it aside on an affidavit, stating that no rules had been entered, either for interlocutory judgment or for the clerk to report damages on the note; offering at the same time to pay costs, and put in special bail. Mr. Riggs, contra. The proceedings are regular to the default; the affidavit states no excuse for that; and though the subsequent steps are not according to strict practice, the defendant, being in default, and that default regularly entered, is not entitled to favor. The utmost, therefore, the court will do, is to vacate the proceedings from the default. Per Curiam. As the default is not account- ed for by the affidavit, it is unimpeached, and therefore must stand; but as the subsequent proceedings are irregular, they must be set aside, with the usual liberty, however, for the plaint- iffs to perfect their judgment this term, if they can. 147*] *MANHATTAN COMPANY v. HERBERT. Trial By RecordNotice. HOPKINS moved for a rule to bring on a trial by record. By tfie Court. Trials by record are to be brought on by notice, in the same manner as cases for argument. LIVINGSTON v. DELAFIELD. Nonsuit Absence of Material Witness. case had been put off on the usual af- - fidavit of absence of a witness, in expecta- tion of whose return the plaintiff had stipu- lated to try peremptorily; on his not doing so, the defendant had, on a former day, moved for judgment, as in case of nonsuit, for not pro- ceeding to trial; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was not re- peated. On the part of the plaintiff, an affida- vit was read, stating that the witness was a sea- faring man, and had never been within the State of New York since the suit commenced, and that the stipulation to try was in expecta- tion of his return. Per Curiam. The witness having been con- stantly out of the State ever since the suit was commenced, and being a seafaring man, some indulgence is due from his way of life. The defendant, therefore, can take nothing by his motion. 148*] *BEDLE ET ex. r. WILLETT. Motion to Refer Names of Referees Time for Motion. BY THE COURT. The notice of a motion to refer must contain the names of the ref- 108 erees. The court never nominates them. But the making the motion is not confined to the first day of term. Notice may be given after- wards, "on showing a reasonable cause for the omission. EDMUND SEAMAN r>. JOHN DAVENPORT ET AL., Tenants in possession. Partition Rule to Appear and Answer. IN partition, after service of the petition and notice, Mr. Hopkins moved for a rule to ap- pear and answer. The court at first thought this a rule of course; but on the counsel's observing that proof of service was by the act required to be made to the satisfaction of the court, and that the manner of the service would, accord- ing to the act, vary in particular cases, the court seemed to coincide, but said that the rule must be drawn up as the party should be ad- vised. JOHN B. CHURCH T. THE UNITED INSURANCE COMPANY. Judgment On Verdict New Trial Return of Commission Misprision of Clerk. THE plaintiff had obtained, in last January Term, an order of court for the verdict re- covered in this cause to stand, and judgment, to be given accordingly, unless the defendant should, fourteen days before the next "sit- tings" in New York, give notice to the plaint- iff that a commission issued in the suit had been returned, in which case there should be a new trial, and the plaintiff at liberty to amend, &c. The clerk had drawn up the rule before the next " circuit." *The plaintiff had [*14S> given immediate notice of the mistake to the defendant's attorney, and that he should be prepared to try the cause at the sittings. The defendant not having noticed the return of the commission, Mr. Hamilton moved that the rule be amended to " sittings," and be made absolute for judgment. Ordered accordingly. JAMES EVERITT, Surrogate of Orange County, ads. THE PEOPLE OF THE STATE OF NEW YORK, EX. REL. CHARLES BEACH. Mandamus Vacatur Agreement between At- torneys. HOFFMAN moved to enter a tacatur on a rule for a peremptory mandamus and set aside the mandamus which had been issued on the following facts: A rule was obtained in July Term, 1802, that the defendant show cause, by October Term, COL. AND CAINES. 1803 ABRAHAM S. HAI.LETT v. DANIEL COTTON. 149 why a mandamus should not issue, compelling him to proceed in a cause then depending be- fore him, concerning the will of Thomas Beach. A return was made to this rule, which, from the defendant's counsel being unavoidably de- tained on his way to Albany, was not tiled until the third day of October Term. On the first day of October Term, Charles Beach attended, and obtained a rule for the 15O*] mandamus; and *on the third day, on filing the return, that rule was vacated. Notice of the vacatur was given to the person who had acted in behalf of Beach, and obtained the first rule; but Beach had previously left Albany, and the mandamus issued. At the last term Mr. Golden was charged with the business, to make the proper applica- tion to the court, and to oppose a peremptory mandamus. On Mr. Golden' s way to Albany, he met Mr. Morton, the attorney for Beach, when it was agreed that all further proceedings ; should be stayed until the present term. Mr. Golden, therefore, did not further attend the cause. The relator. Beach, attended at Albany at the close of the term, employed other counsel, .and obtained a rule for a peremptory manda- mus, which has been issued. Motion granted. ABRAHAM S. HALLET DANIEL COTTON. .New Trial Motion to bring Amount of Verdict into Court. cause was tried at the sittings after -L January Term last, when the jury found a verdict for the plaintiff for $866.30. The de- fendant obtained a judge's order for a stay of further proceedings until the next term, for the purpose of then moving for a new trial. Mr. Haices now moved, on the part of the plaintiff, for an order, that the defendant bring 151*] into court the*sum found by the jury, with costs of the suit; and that in default thereof, the order to stay proceedings be discharged. This application was founded on an affidavit stating, "That since this cause has been at is- sue, the special bail has been declared bank- rupt and discharged under the bankrupt law of the United States. That, on the trial of this cause, a balance was admitted by the de- fendant's counsel to be due to the plaintiff of about $500. That, at the sittings in November last, on the application of the defendant, this cause was put off for that court, on the condi- tion of payment of costs; but that those costs, Although repeatedly demanded, were not yet paid." A further affirmation of the plaintiff was read, stating "That from the circumstances of the defendant, he was in danger of losing his said debt, unless the money was brought into court, or the rule to stay proceedings dis- charged; but it was acknowledged a copy had not been served." For the plaintiff it was said, that a motion for a new trial was an application to the equi- table discretion of the court, to relieve from what, in the opinion of the party, was an erro- COL. AND CAINES. neous or oppressive verdict. That it was a maxim of law, founded on principles of .equal justice, " that he who seeks equity, should do equity." From the affidavit it appeared that the defendant had admitted, on the trial, that the plaintiff was entitled to recover about $500, which sum entitled him also to full costs. Before, therefore, the court would suffer the defendant to be heard on a motion for a new trial, they would require him to do what he acknowledged to be just. The bankruptcy and discharge of the bail, *and the circum- [*152 stances of the defendant, were additional rea- sons for requiring the defendant to bring the money into court, to abide the event of the suit. That, from the great number of cases now before the court, it was not in the least probable that the case to be made in this cause could come on in its order, and a decision be had thereon in a shorter time than 6 or 9 months; by which time the defendant, from his present circumstances, would, doubtless, be a bankrupt, or, as his bail were already bank- rupt, he might abscond. Under such circum- stances, delay was equally prejudicial as a denial of justice. It also appeared that the defendant was now in contempt, and liable to an attachment for nonpayment of costs, incurred on putting off the trial of this cau.se at a former sitting. That it was a standing rule of the Mayor's Court of the city of New York, that, " upon every motion for a new trial, the defendant should, within eight days, bring into court the sum recovered by the ver- dict, with costs; and that in default thereof the plaintiff have leave to proceed." That, although this court might not be disposed to go the length to establish such a rule in all cases, it was believed the peculiar circumstances of this cause were such that they woulfl not hesitate to make the order now requested; or, at least, for such sum as was admitted to be due, with costs. Mr. Bogert said the object of the motion was perfectly new and unprecedented. Per Curiam. The practice of the Mayor's Court, in obliging the amount of the verdict to be brought into court on a motion for a new trial, has never been *adopted here. [*153 The insolvency of the bail, 1 is certainly not a sufficient ground to induce us to make such an order; and a copy of the affirmation, respect- ing the defendant's circumstances, has never been served on him; of that, therefore, we can take no notice. 2 But, let it be understood, we do not mean to say, that had it been otherwise, we would have granted the motion. Rule refused. JAMES W. GILBERT JAMES c. 'BRAZIER Sheriff Fees Levying fine. PER CURIAM. The question is, whether the sheriff is entitled to fees on levying a 1. See Gillespie ads. Pflster and STComb, ante, p. 120. 2. Card ads Fitzrny ct al., ante, p. 89. See, also, Grove ads. Campbell, ante, p. 115, that supplemen- tary affidavits to rebut those in answer, cannot be received. 109 153 SUPREME COURT, STATE OP NEW YORK. 1803 fine. The statute directing the mode of making the levy, declares it shall be done without fee or reward. The fee bill gives a fee, but does not say bv whom it shall be paid. We all know how it has been: the fee has been charged by the sheriff in his accounts. This, we think, is the regular practice; for it cannot be demanded from the person who has had to pay the tine. L. AND N. VANDYCK V. VAN BEUREN AND VOSBURG. Stay of Proceedings Case made Special Verdict. PER CURIAM. Wherever a case is made, with liberty to turn it into a special verdict, execution must stay, of course, till the next term after the decision is given, that, if either party be dissatisfied, there may be time to make up the special verdict. the notice should be entitled, though each party should be served. It does not follow that appearing separately, and entering into separate consent rules, justifies or requires a different practice; for pleading separately does not make separate suits. The notice must be as the cause was originally entitled, and a copy served on all the attorneys; for otherwise it would imply a distinct issue in each suit. Motion refused with co&te to the plaintiff. BELL ET AL. v. RHINELANDER. Partition Reading of Petition. the notice and a not the petition. IN partition only the notice and affidavit of service is read, 154*] *.IACKSON, on the demise of JOHN JAUNCEY, v. MARTINUS COOPER & JAMES STYLES. Ejectment Severance in Appearance and in Entering into Consent Rules Division of Suit j and Notices. THIS was an action of ejectment, in which the defendants severed in their appearances, and entered into separate consent rules. The plaintiff, on motion, obtained leave to amend bv altering the name of the lessor of the plaint- iff from John to William Jauncey; but the notices on which the motion was founded were entitled as above, against both defendants. Mr. Benson now moved to set aside the pro- ceedings for irregularity, contending, that as the defendants had severed, the original suit be- came divided into two distinct causes. That, therefore, there should have been two separate notices, each entitled against one defendant, and served on the different attorneys of the defendants. For there was not then any suit in existence such as that in which the notices purported to be given. Mr. Hopkins, for the plaintiff, insisted the no- tice was perfectly regular, and likened it to the case of a suit against two, where one is out- lawed, yet the proceedings are entitled against both. Per Ourifim. The objection taken against the notices and rules is, that as the defendants appeared by distinct attorneys, and entered into separate consent rules, these circumstances required separate and distinct proceedings, and ought to have been entered and entitled as sep- arate; that is, that the notices should have been separate, addressed to each party, and the 155*] *rules entered accordingly. The notice given to Van Schaick, attorney for Cooper, is entitled against two; and it is on that notice the application is made. The court are of opinion that this is the regular way in which 110 JACKSON, ex dem. NICHOLAS Low ET AL., v. JAMES REYNOLDS. Ejectment Death of one of iJie lessors Motion to Strike out Costs. Citation Ditz ads. Butler et al., ante, 105. ON an affidavit stating the death of one of the lessors of the plaintiff, from belief, infor- mation, diligent search and inquiry, Mr. Riggs, on the behalf of the defendant, moved to strike out of the declaration of one count wholly, and in all the others the name of Drake. Mr. Hoicett, contra. The application now comes too late, being after entering into the con- sent rule; at all events the affidavit should state that the fact was unknown at that time. In addition to this, he mentioned,* that [*156 from the counter affidavit which he held, it appeared the defendant had heretofore con- sented to give up possession, having failed to try according to stipulation. Per Curiam. The motion must be granted. It has been before decided that a defendant may thus come in and move, on the death of a party, before rtie commencement of the suit. As to the objection that the application is out of season, the aaswer is, that it is never out of season when on the ground of an original irregularity in the plaintiff himself. (See Ditz ads. Butler et al., ante, p. 105.) Therefore, the not coming in earlier cannot be urged. The affidavit furnishes such evidence of the facts as are prima facie sufficient; and if not true, ought to have been denied by the plaintiff, especially as it is in his power; for the attorney of the lessor may, nay, certainly must, know if his client is alive. Mr. Howett hoped the costs would not be allowed. Per Curiam. It does not necessarily follow that the attorney of the plaintiff must know of the death of one of the lessors. He may have examined into the title on behalf of one person acting for others equally interested, and seeing a number of names necessary to be made par- COL. AND CAINEB. 1803 SHEFFIELD v. WATSON. 156 ties, he may think them all in existence, and the affidavit of the defendant be the first notice of the death of anyone entitled. The costs ought to be paid if the fact was known sooner; and the application for the object of this motion ought to be made as soon as the right to apply was discovered. The court, however, reserved the consideration of costs till the next 157*] day, when they denied them, *saying the plaintiff was irregular from the beginning; and though he might not have been in fault, there is no reason for allowing him costs, when it is to have his proceedings rectified, that the defendant comes before the court. CLARKSON v. GIFFORD. Change of Venue Specialty Covenant of Seisin. HARRISON moved, on the usual affidavit, to change the venue. Mr. Evertson. This action is founded on a specialty; in suits of this sort the court does not change the venue. Mr. Harrison, in reply. The action is on a covenant of seisin, affecting, or, as the tech- nical phrase is, savoring of the realty. Motion granted. COL. AND CAINES. FALLMER v. STEELE ET AL. Amendment Declaration Writ. HOPKINS moved to amend a count in the declaration, in conformity to the original writ (a certified copy of which he produced), by striking out the words " town of Herkimer," and inserting the " town of German Flatts." Ordered. SHEFFIELD v. WATSON. Nonsuit Costs Stipulation. TJOPKINS, for the defendant; moved for -LI judgment as in case of nonsuit, for not going to trial. Mr. Woods, contra. The cause was called on, but as there were other causes on the day cal- endar, one of which actually occupied the court the whole day, the plaintiff's attorney not being quite ready, thought he should be en- j titled to bring it on the next day, the day cal- endar not being gone through, but found he was put down to the bottom of the calendar for the circuit. This, therefore, is a plain mistake of the rules of practice, which ought not to injure the plaintiff. Mr. Hopkins. The plaintiff clearly was not ready; therefore equally in fault, whether the rule was as he imagined or not. RADCLIFF, J. Acting under that belief, he did not prepare himself. Mr. Hopkins hoped the plaintiff would be ordered to stipulate and pay costs. Per Curiam. The excuse is certainly not sufficient to exonerate from costs. If admit- ted in one case, it must be in all; and however 158*] the good faith of the *plaintiff's con- duct, and our belief of it, may deny the judg- ment moved for, to refuse costs would do away the effect of the rule. The plaintiff must stipulate. MARIA REMSEN, Administratrix, i}. JOSHUA ISAACS. Non-enumerated Motion Setting aside Repwt of Referee, for Irregularity Merits. MULLIGAN moved to set aside a report of referees for irregularity and on merits. *Mr. Woods, contra. In King v. [*15D Hughes, it was determined that if a motion be made as non-enumerated for irregularity, the ground of merits must be abandoned, though on the merits the irregularity may be insisted on. Per Curiam. The rule is according to the decision cited. The application must be for irregularity only to bring it on as a non-enu- merated motion. If merits are united, it be- comes enumerated. HUN ET AL. v. BOWNE. Amendment Of Case Time Accident. C\ OLDEN, for the plaintiffs, moved for leave Vj to amend the case made by the defendant. From the affidavit of the attorney for the plaintiffs, it appeared that the defendant's at- torney had agreed to give the plaintiff's attor- ney till the 21st January last to settle his amend- ments before a judge at Albany, the cause hav- ing been tried in New York ; that by some ac- cident the amendments proposed by the plaint- iffs to the case made on the part of the defend- ant did not come to the hands of the counsel who was employed to attend to the business there until the 22d January; and further, that, the case made by the defendant did not set forth the merits of the cause as they appeared on the trial. Mr. Hoffman, amicus. In Duff v. VanZandt, on a suggestion that the case made did not contain a true statement of facts, the court granted a new trial after argument and decis- ion. Mr. Boyd, contra, stated some circumstances of strict and unaccommodating conduct in the plaintiff's *attorney, which had oc- [*16O curred previous to the agreement mentioned in the affidavit, read by Mr. Golden, and some declarations of the plaintiff's attorney, that he would hold the defendant to strict practice. Per Curiam. We cannot travel back farther than the agreement stated. It appears that the defendant had given the plaintiff a time, which, from accident, he could not keep ; the amendments were sent with due speed, and so 111 160 SUPREME COURT, STATE OF NEW YORK. 1803 that they might have arrived at Albany in sea- son if nothing had happened to prevent it. We cannot let the plaintiff suffer by circumstances which he could not control. The verdict is in the hands of the plaintiff, and the defendant ohnnot be injured by a short delay. ANONYMOUS. Argument Notice. T> Y THE COURT. All causes intended for ar- Jj gument must be duly noticed before term, to the clerk, that he may enter them on the cal- endar. If not so noticed, they must go to the foot of the calendar, without regard to the date of their issues. JOHN HALSEY v. JAMES AND SAMUEL WATSON. New Trial Newly Discovered Evidence. 'PHIS was a motion for a new trial, on an af- L fidavit of a discovery of new and material evidence. The points and substance are so well and accurately condensed in the decision of the court that it is unnecessary to do more than state the judgment. Per Curiam. This is a motion for a new trial, and comes before us on the ground of a 161*] discovery of *material testimony, since the trial of the cause. To see this and judge whether it be material or not, it will be neces- sary to state the former testimony and nature of the suit. It is asftumpsit by Halsey, the plaintiff, v. James and Samuel Watson, tJie defendants, as owners of the ship Chesapeake, founded on a neglect in not taking on board some tobacco, according to contract. The witness, Heyer, who appears to have acted as agent for the plaintiff, states what the contract was, and the time at which it was to be on board. This Agreement appears to have been made on a Friday. The witness inquired of the defend- ant, James Watson, when the tobacco should be sent down to the vessel. The answer was, send it down as quick as possible ; in conse- quence of which, it was sent the very next day. From three witnesses it is shown that the prin- cipal part of the tobacco was on the dock by eleven o'clock in the forenoon, and that the whole was ready to be put on board by three. These facts, then, are established by three wit- nesses. The captain swears that after 4 or 6 hogsheads had been brought, he requested the cartmen not to bring any more, as there were .appearances of a storm. This the principal .cartman has, in effect, denied ; for he says he was desired by those on board the ship, or the captain, to bear a hand ; and that he got all the tobacco down by dinner time. Here the testimony is contradictory. We are to judge, then, if the material evidence, as it is termed, that has been discovered since the trial, be really testimony of materiality. There is one person who swears as to the directions given 112 by the *captain. The court are of [*162 opinion that this is not material, so as to war- rant granting a new trial. This, in two points of view: The testimony goes only to impeach the credit of what has been sworn, and not to establish any new fact. It is merely contra- dicting former evidence. In that point of view, it is not material ; nor can it be so in another, unless the defendants can go further. The direction not to bring down the tobacco was to a cartman. This is not sufficient, as Watson directed it to be sent as soon as possi- ble. It ought to have been to the owner of the tobacco; or to have shown that the request was brought home to the knowledge of the plaint- iff; that it was made to a cartman is not suffi- cient. The defendant's affidavit states two other witnesses who are material, but does not say to what facts they would testify; we can- not, therefore, judge whether they are material or not. Blackmer, it is stated, will testify that the tobacco was not marked till Monday. This will only go to impeach the credit of the testi- mony; for three witnesses swear to the fact of the marking before one o'clock on Saturday. The captain himself does not pretend that the reason for not taking it on board was the hogs- heads not being marked, but only that he had not time. He does not pretend it was not ready to be taken on board. New trial refused. FRANCIS HUGUET, Assignee of THE SHERIFF, v. JAMES HALLETT. Default Stay of Proceedings Special Bail Costs. Citation Cannon ads. Cathcart, ante, 84; Grove ads. Campbell, ante, 115. was a motion in an action on a bail- -L bond to set aside the proceedings and ex- ecution sued out. It appeared that soon after the bail-bond was prosecuted, *the at- [*1G3 torneys for both parties had entered into an agreement, in the nature of a rule, to stay pro- ceedings in the bail-bond suit on the usual terms. That the defendant had accordingly filed special bail in the original suit, and had given the regular notice, but had not paid the costs of this suit, as by the terms of the rule he was bound to do. The plaintiff, on special bail being entered, went on in the original suit, and in July, one thousand eight hundred and two, obtained final judgment, on which execution was issued and thereupon satisfaction obtained. After this the plaintiff went on with this suit, entered a default, and in January last obtained final judgment and issued an execution, on which the sheriff, by direction of the plaintiff's attorney, levied the costs only, but still had them in his hands. The defendant in the last vacation obtained an order or His Honor, Judge Radcliff, to stay all proceedings. The application now was, that the sheriff re- store to the defendant so much of the money in his hands as exceeds the costs which were due on the bail-bond suit when the rule to stay proceedings was entered into. COL. AND CAINKH. 1803 W. P. VAN NESS v. GEORGE GARDINER. 163 The counsel for the defendant produced an affidavit, by which it appeared that the attor- ney for the plaintiff had frequently given the attorney for the defendant verbal notice that he was proceeding with the bail-bond suit. But it did not appear that any bill of costs had been presented, or any demand of a bill of costs made on the one side, or of the costs on the other. 1G4*] *Mr. Golden, for the defendant, con- tended that special bail being tiled under the rule, with an intent to stay the proceedings on the bail-bond, the plaintiff could not accept it or avail himself of it unless it was to have that operation. That the plaintiff could not proceed with both suits; at most he had but an option to proceed with either, but having elected to pur- sue the original suit, he thereby precluded himself from going on with the other. That after the defendant had filed special bail the plaintiff might have gone on with his original suit, and the court would probably have compelled him, by attachment, to pay the costs in that on the bail bond, up to that time. That there was no precedent for this double proceeding, which was a strong evidence that it could not be right. Mr. -Stuyvesant, contra. It was the duty of the defendant to have paid the costs on the bail- bond when he gave notice of special bail. The plaintiff had no other possible remedy for his costs than the mode he has adopted, and as the defendant's irregular conduct has com- pelled the plaintiff to proceed, the whole costs are due from the defendant, and are nothing more than the result of his own irregularity and obstinacy. Per Curiam. This is a motion to set aside proceedings on the bail-bond on the facts stated by the affidavit. The suit was com- 165*] menced in January, *1802, returnable in April. Afterwards, in May, the action on the bail-bond was brought. Shortly after, the plaintiff's attorney received notice of bail in the original action and then delivered a decla- ration. He went on to judgment, and pro- ceeded on the bail-bond to recover costs. The plaintiff's attorney states that he called on the attorney of the defendant, and requested him to pay the costs on the bail-bond, which he did not do, though no regular bail had been put in. On this, proceedings were continued in the bail-bond suit to judgment, on which an execution has issued for the costs. The application is to set aside the proceedings and execution in the bail-bond suit. It is estab- lished, with respect to tendering costs on a rule to stay proceedings on the bail-bond, that it is the defendant's duty, when the rule is ob- tained, to plead and tender costs. (Cannon, manucaptor, ads. Cathcart, ante, p. 84.) There was no rule to stay proceedings : but an equiv- ocal agreement in the place of that rule, and should receive the same construction. It was the duty of the attorney of the defendant to plead and pay costs. This would have been ordered had he not proceeded in the original suit; but when he did that, it was a waiver of his proceedings on the bail-bond, and a waiver of the right to a plea from the opposite side. The proceedings must be set aside on payment COL. AND CAINES. N. Y. REP., BOOK 1. of costs up to the time when special bail was entered and notice of that bail given. (See Grove ads. Campbell, ante, p. 115.) W. P. VAN NESS v. GEORGE GARDINER. Fine Proclamation nunc pro tune. rpHE last proclamation of a fine had been -L omitted; it ought regularly to have been made last term; the application now was, to have it made nunc pro tune, and indorsed as of the last term. *Per Curiam. We see no objection [*166 to it at present. Ruled accordingly. A. M'GREGOR . C. LOVELAND. THE SAME v. JOHN B. ARNET. THE SAME v. THE SAME. Costs In Supreme Court Limitation of Amount. THIS was a question of practice, submitted to the decision of the court on the follow- ing statement: The above suits were brought on notes ex- ceeding two hundred and fifty dollars each; afterwards a sum of money was paid, and security given by Loveland, the indorser, by which the amount was reduced below $250: cognovits were then given for the residue by each defendant. It was understood at the time, by the defendant's attorney, that the judg- ments should carry Supreme Court costs. Query, May not the clerk tax them accord- ingly? Per Curiam. No; the plaintiff should have taken his cognovit and entered his judgment for a sum above $250, to entitle to Supreme Court costs; they cannot otherwise be allowed. JAMES AND SAMUEL WATSON FREDERICK DEPEYSTER & CO. Costs Compromise of Action. THIS and three other suits were commenced, against the above defendants and several others, on a *policy of insurance on [*167 the brig Defiance, and a consolidation rule signed and entered. About a year afterwards the defendants, in the above suit, compromised with the plaintiffs, who cancelled the policy as to them; of this the defendants' attorney had no information, nor was there any rule to dis- continue, or other rule entered, and the other suits proceeded. The principle cause went on to trial, and the jury found a verdict for the 8 113 167 SUPREME COURT, STATE OF NEW YORK. 1803 defendant, which was acquiesced in. The de- fendants' attorney thereupon entered rules for judgment as in case of non-suit in all the causes, pursuant to the consolidation rule, and the costs were taxed and judgment rolls ready to be signed. It was now submitted to the court on these facts,to decide whether the rules for judgment, and the judgment for costs as in case of non-suit, were regular or not; or, whether they ought to be set aside. N. B. At the time of compromise nothing was said about costs. Mr. Hoffman, as amicus curia, informed the bench that in Wallace v. Lockwell it had been decided that if a party compromised without the knowledge of his attorney, and the plaint- iff went on, each paid his own costs. Per Curiam. In every suit each party is supposed to advance as his suit proceeds. If each has paid costs and then they compromise, the suit is settled; for the transaction imports no further proceeding is to be had; nothing more than a simple discontinuance to enter on record, and nothing being said about costs, each must pay his own. The parties ought to have informed their attorneys there was a com- promise. 168*] *HUDSON 0. HENRY. Nonsuit Trial not 7iad Notice sent by Mail. MR. HENRY moved for judgment of non- suit against the plaintiff for ntt proceed- ing to trial. Notice of the motion had been sent to the adverse attorney by the mail. Per Curiam. This notice is insufficient. A letter may miscarry; or the attorney may be absent when the mail arrives, or not immedi- ately inquire for letters, though an affidavit of a plea sent by the mail might save a default. Let the defendant take nothing by his motion. 1 MANHATTAN COMPANY SMITH, in custody. Imprisoned Debtor Delay in enforcing Execu- tion. THIS case was brought up from the Mayor's Court. The application was to prevent the discharge of the defendant on account of the plaintiffs' not proceeding to execution in due time, according to the act for the relief of debt- ors with respect to the imprisonment of their persons; the counsel for the plaintiff relied on Bmntingharri '* case (ante, p. 48). The court, without hearing any argument for the defend- ant, said the authority cited was conclusive. LIVINGSTON, J., acquiesced because it had been so decided, but confessed he did not be- lieve the Legislature intended the construction put upon the act by the court should ever be given to it. The rigor of the practice was, in his opinion, enough to condemn it, for he 1 See Cole et al. ads. Stafford, ante, p. 110 ; Beebe i ds. Paddock, ante, p. 135. 114 thought the neglect in the plaintiff ought to accrue to the advantage of the prisoner. *STEELE ET ux. ads TENANT. [*16 STEELE, AND FULLER, his bail, ads. TENANT, Assignee of the SHERIFF OF WASHINGTON. Default Regularity of Proceedings on Bail-bond Costs. rPHE original suit was trespass quare clausum JL fregit, in which Steele and his wife had been held to bail under the statute (81st March, 1801, c. 102,s. 3); after the return of the writ the plaintiff obtained an assignment of the bail-bond on which he issued the usual process, filed his declaration on the first of October, 1802, and entered a default the llth of November; on the 17th the partner of the plaintiff's attorney received, when in his office, notice of the retainer of an attorney on behalf of the defendants in the bail-bond suit, but no information was then given of any de- fault having been entered. In January follow- ing final judgment was signed. On the eighth of March, 1803, the attorney for the defendants, in the bail-bond suit, was served with a notice of executing a writ of inquiry 1 in the original suit; a declaration also in the same suit was then delivered, which the plaintiff's attorney swore was merely to apprize the defendant of the nature of the demand ; but the attorney of the defendant swore it was served absolutely, not on any condition, and that he did not know of the entry of the default in the bail-bond suit,or that any declaration had been filed; that acting under that impression he did not attend the execution of the writ of inquiry, or apply to the court last term. On these facts the de- fendant now moved that the default and inter- locutory judgment in the original action, and all the proceedings in the *bail-bond [*17O suit, be set aside, and the defendants, in the original cause, let in to plead. Per Curiam. The court are of opinion the defendant's attorney was in default. He ought to have seen that the proceedings in the suit on the bail-bond were regular. He should have called after the default and tendered costs. We do not say that the not disclosing the entry of the default in the suit against the bail amounts to a surprise, but it would- have been rather more' candid to have mentioned that circum- stance. Let the judgment on the bail-bond stand as security, and the costs on that remain also. The default and subsequent proceedings in the original suit to be set aside on payment of the costs of entering the judgment under the stat- ute, and executing the writ of inquiry. The defendant to plead instanter to the declaration filed, take short notice of trial, and pay the costs of this application. LIVINGSTON, J., I think the costs on the bail- bond ought to be paid. 1. Under s. 16, of c. 90, of 31st March, 1801. COL. AND CAINES. 1803 WILLIAM LOWRY v. ANDREW LAWRENCE. 170 WILLIAM LOWRY v. ANDREW LAWRENCE. Demurrer Writ Declaration Captioned as be- fore the Date of tlie Demand. Citation 2 Doug., 61. ON demurrer. The memorandum was of an- other term. Be it remembered, that heretofore, to wit, on the third Tuesday of July, in July Term, in the year of our Lord one thousand eight hun- dred and one, &c., came William Lowry, and brought into the said court then there his cer- tain bill, &c. 171*] *The declaration was on a bill of ex- change, made in 1797, presented for acceptance on the first of October, 1801, and refused, of which notice to the defendant .who on the llth of October promised. To this the defendant demurred, and showed for cause, that although the said declaration is entitled of the term of July, in the year of our Lord one thousand eight hundred and one, yet the said several promises and undertakings in the said declaration mentioned, are therein stated to have been made on the eleventh day of October, in the year last aforesaid, which is subsequent to the time of the exhibiting the declaration of the said William against the said Andrew, and for that it appears, by the said declaration, that the pretended causes of action therein specified had not, nor had either of them accrued to the said William at the time of the exhibiting his said bill in manner afore- said. The defendant insisted that by the practice of this court the suing out of the writ was the commencement of the action; and if so, the declaration showed, on the face of it, no cause of action when the suit was commenced. Mr. Ogden, for the plaintiff. It is contended | on the part of the plaintiff that nothing appears I on this record to warrant a judgment for the | defendant. By the course of the court the filing of the j bill is the commencement of the action in a | legal sense. 1 The Ifttitat is considered only as process. 172*] *The action is not deemed to be com- j menced until the bill is filed, though the real j time of suing ont the latilat is allowed to be j shown, where it becomes material; as to pre- ! vent the running of the statute of limitations, I &c. (Cowper 454, Foster v. Bonner.) If such i a necessity existed in this case the actual time i of suing out the final process might have been I shown by plea. But where it does not exist I the fiction of law will be preserved, and es- 1 pecially so when it is in furtherance of justice, j On this occasion, the true question therefore | is, when, in a legal or technical sense, was this ! action commenced? This can only be ascer- tained by showing the time of filing the bill. I (1 Comyn's Digest, 103; Mod. Cases,33.) The I time of filing the bill may be examined into j to show the time of commencing the action. ; It ought to have been shown by pleading in this case. Not being shown, the court are at : liberty to presume that it was after the cause 1. 2 Burr., 950, Johnson et al. v. Smith. See Lord Mansfield's opinion, 961. COL. AND CAINES. of action accrued. The caption of the decla- ration is matter of fiction, and not conclusive upon either party. If it be conclusive, all ac- tions by bill of privilege; actions against at- torneys of the court; actions against absent or absconding debtors, giving security to appear to any declaration which may be filed by the petitioning creditor, would be defeated in all cases in which the cause of action accrued, during the vacation in which the declaration is filed. Because, in all these cases, the dec- laration is entitled of the preceding term, and must necessarily be stated in the memoran- dum to have been brought into court of that term. This doctrine involves no hardship upon the defendant; because if in the first instance process be issued before the cause of action accrued, a judge will discharge on common bail. So if the bill filed before cause of action accrued, the actual time of filing it may *be shown and pleaded in abatement or [*1 7o in bar. In this case it does not necessarily follow that the cause of action did not accrue before the commencement of the action, and the time of that commencement not being shown, the court are at liberty, and ought to presume it to have accrued afterwards. In addition to this general reasoning on this subject, it may be observed that, in this in- stance, the real cause of action is stated to have occurred in 1797, being the date of the bill of exchange and long prior to the issuing of process. It is the assumption, founded on that undertaking, which is stated to have been made in October, 1801; and the time of the promise being wholly immaterial, the court will, in this circumstance, see an additional motive for adopting the principle contended for by the plaintiff. Per Cunam. This case comes before the court on demurrer. It was an action of as- sitmpsit, and the declaration captioned of July Term, 1801. The time laid in the declaration, at which the cause of action arose, is on the llth day of October, 1801. To this there is a special demurrer, alleging for cause that the action appears from the declaration to have commenced before cause of action arose. It is, we take it, well settled, that if the plaint- iff, at the commencement of his suit, had no cause of action, a subsequent right would not maintain his action. And it has been settled in this court, in the case of Carpenter v. But- ter-field, that as to every material purpose, the issuing the writ was the commencement of the suit so that a *note purchased by the [*174 defendant after that time could not be set off against the plaintiff's demand. 1 The declaration must be captioned of the term when the writ is returned served. This point is settled in the case of Smith v. Mutter, and it is there also determined that the plaint- iff cannot recover any demand, after the term, when the writ is returnable, though before the declaration is actually filed. Justice Buller there says, according to the ancient practice, the declaration was actually delivered the same term the writ was returned, and it was only in ease of the plaintiff that the time of actual de- livery was enlarged, but still it must be con- sidered as delivered nunc pro tune. 1. See Crygiers v. Long, ante, p. 106. 115 174 SUPREME COURT, STATE OF NEW YORK. 1803 Upon the principles of these authorities, therefore, it must appear from the face of the declaration in this cause, and the court must necessarily intend the facts, that the writ was returned in July Term, 1801, and of course the action, both in fact, and technically speak- ing, commenced previous to that time. But the plaintiff alleges his cause of action to have arisen on the llth of October thereafter. We think, therefore, it appears upon the face of the record that the action was commenced before the right of action accrued. The time of actually filing the declaration cannot, as con- tended by the plaintiff's counsel, be considered the commencement of the suit; if, therefore, the defendant, by plea, had put the fact in issue, it would have been an immaterial fact; all the material facts appear by the plaintiff's own showing. In the case of Ward v. Honey- wood (Doug., 61), 3 the judgment was reversed on writ of error, on the ground that it ap- 175*J peared on *the face of the record that there was no cause of action when the suit was commenced; if this would be error after judg- ment, advantage may certainly be taken of it by demurrer. We are therefore of opinion that judgment ought to be for the defendant. LIVINGSTON, J. In England it is settled that the tiling of a bill or declaration is to be regarded for every essential purpose as the commencement of a suit (FwfeCowp., 454); but in Carpenter v. Butterfield, decided by the court, a different rule was adopted. The issuing of a writ was there considered as the beginning of action, so much so that the de- fendant was not permitted to set off against the plaintiff's demand, a note which he had obtained for valuable consideration between the sealing of the process and the arrest. This rule, to operate fairly, must be mutual; if an action begins by issuing a writ so as to deprive the defendant of a set-off in the case mention- ed, neither ought the plaintiffs to recover a de- mand not then due. My judgment, therefore, in favor of the defendant, is not founded on British authorities, but entirely on a former decision of our own. M'NEIL'S Case. Bail Sentence Of Defendant presenting Him- self No Record of Conviction. THE prisoner had, together with two other persons, been convicted of a conspiracy at the last Oyer and Terminer for the City and County of New York, but had not appeared on his recognizance in time to receive sen- tence; he afterwards came in, and was now brought up, on his own petition, to have 176*] judgment *pronounced; the public prosecutor appeared, but the record of the conviction not being made up and brought into court, the bench said they had nothing 2. That case was on inarshalsea process, where the proceedings are by plaint, and In an Inferior court the plaint is as an original. Savage v. Knight, 1 Leon., 302. See the observation of Ashhurst, J., in Doug., 82. 116 before them on which to proceed, and there- fore admitted him to bail. ANONYMOUS. Motion Service On Person in Attorney's House. THE notice of motion in this cause was served on a person in the house of the attorney, and where he kept his office, but held not sufficient, as it ought to have been on a clerk in the office. ' MOYLE v. GILLINGHAM. Ex- Non-enumerated Motions Late Notice cuse Counter Affidavits. "M"OTIGE may be served on an agent in town ll on the first day of term, to show cause on the next day for non -enumerated motions; but then, it must be accompanied with a suf- ficient excuse for not having been for the first day. If the excuse be received, the adverse party will have till next term to send into the country to his principal for counter affidavit. ABRAHAM L. BRAIN v, RODELICKS AND SHIVERS. Commission Vacatur Examination of Wit- nesses. IN this cause, it was necessary to examine a witness in the Havana; and, as that port was open only to certain privileged vessels, in April, 1802, a *rule for a commission [*177 was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself. No return having been made, the cause was noticed for trial for the last sittings in March, 1803, when the defend- ant's attorney, seeing some witnesses in the court, whose absence, he feared, might delay the cause after the return of the commission, appeared, and examined them; stating, how- ever, the circumstances of his case, and that he begged to be considered as acting without prejudice to his future rights. He now moved to set aside the verdict, with costs; the plaint- iff having proceeded to trial without vacating the rule for the commission. Per Curiam. When a rule for a commis- sion has been obtained.it suspends the cause till, on application to the court, a vacatur be ordered and entered. But, if the defendant appear and examine witnesses, it is a waiver of his commission, and the racatur is un- necessary. The motion must be refused. 1. Swartwout ads. Gclston, ante, p. 81. "The service must be on some person in the office, and belonging there; if nobody is there, it must be up- on some one in the house where the attorney rev sides or the office is kept ; and if nobody is there, it may be left in the office." COL. AND CAINEB. 1803 CODWISE, LUDLOW & Co. V. JOHN HACKEK. 177 CODWISE, LUDLOW & CO. v. JOHN HACKER. 1. Making Case Amendments Cross Ver- dicts Plaintiff's Irregularity Judgment. 2. Practice Case- made by Defendant or Plaintiff Default. rpHE plaintiffs, in the sittings of June, 1802, J. at New York, as owners of a ship, of which the defendant was captain, had, in an action against him, for deviating from his orders, obtained a verdict, subject to the opinion of the court, on a case to be made; and he, in a cross suit, had recovered against them a larger sum, subject to deductions, in case the opinion of the court should be against him as to certain items charged and allowed by the jury. 178*] *A case was made on the part of the defendant, to which the plaintiff proposed amendments, which were adopted; the cause was then noticed for argument, for the next October Term, and also for January Term following, in Albany. But, it was then recol- lected that some material facts had been omitted, without which the case could not present the only important question in the cause. This was mentioned to the plaintiffs' attorney, who would not say whether he would consent to the amendments or not. The papers from whence they were to be drawn, and the case perfected, were in the hands of the plaintiffs' attorney in New York, so that the case could not be completed in Albany. No application was made to a judge to correct the amendments. Nor had cases been delivered. Mr. Hopkins now moved to set aside the orig- inal order to stay proceedings, that a case might be made, and for leave to enter up judg- ment. Mr. Biker resisted the application, because the case was imperfect, and the papers from whence only it could be completed were in the hands of the plaintiffs. Per Curiam. We must deny the motion; because, in the first place, there were cross verdicts to nearly the same amount. Second- ly, the cases were never perfected, and it did not appear to be exclusively the fault of either. Thirdly, the plaintiffs' attorney not having denied the omission of certain material facts, the court would presume they had ap- 179*] peared *on the trial, and ought to be a part of the case. Let the case be perfected within thirty days. Mr. Hopkins prayed costs, insisting he had been regular. Per Curiam. We consider that the plaint- iffs were irregular in not answering when ap- plied to, whether they would receive amend- ments or not. N. B. It was said, by the court, that where a defendant, after verdict, makes a case, and notices for argument, if he does not appear at the time when called, judgment shall go; but when the plaintiff notices a case, made on the part of the defendant, and the plaintiff is not ready, it shall go down. COL. AND CAIKES. CALLAGAN ET AL. v. HALLETT & BOWNE. 1. Contract Validity Contract of Pilot to bring in Vessel. 2. Arrest of Judgment After Attending Inquest. 3. New Inquiry Quantum Meruit Costs. THE plaintiffs were pilots of the port of New York; the defendants owners of a brig called the Neptune. The vessel had been driven on shore at Barnegat, to bring her from whence safe into New York, the defendants had agreed to give the plaintiffs five hundred dollars, and the service having been perform- ed, the present action was instituted to re- cover the money. The declaration consisted of four counts: the first, an agreement with the captain on be- half of his owners; the second, on one with the owners themselves; the third, work and labor at the request of of the defendants; the fourth, a quantum meruerunt. To this the defendants pleaded the general issue. A case was *reserved for the opinion of the [*18O court whether the action was maintainable or not. Mr. Pendleton, for the plaintiffs. It has long been settled, that the master may, when in distress, hypothecate either vessel or cargo for necessaries to prosecute his voyage. (Bar- nard v. Bridgman, Moore, 918 ; Johnson v. Sfiippen, 2 Ld. Ray., 984; Noy, 95.) A for- tiori, he may bind to his engagements, when the vessel must otherwise be lost. If, then, the action be maintainable, this can be the only tribunal ; it cannot be in the admiralty, and the reason is, that court has jurisdiction in cases of hypothecation on account of the extraordinary interest, and because the con- tract is on the credit of the ship or goods and their safe arrival. Owners are not liable in the Court of Admiralty. (6 Mod., 2.) They must then be answerable here. Whether the contract was with the owners or the master is immaterial ; for the contract of the master is obligatory on the owner. (1 Moll., 331, sec. 14, 15.) If the master ransoms, the remedy is against the owner (Cornu v. Blackburn, Doug. , 619), and in Tates v. Hatt, the plaintiff recov- ered on the engagement of the master against the owners, though the vessel, for payment of the ransom of which he remained as a hos- tage, was given up in satisfaction of the ran- som bill. In addition to these authorities, the laws of the State render the contract valid. Mr. Boyd, contra. Principles of general pol- icy and the invariable leaning of the court are against this action; the words of our law are conclusive. The species of contract in which the master can bind his owners, and the dis- tinctions from this case will appear to the *courtin 1 Salk.,35; 2 Dall.,194; [*181 1 Bro. Pa. Ca., 284, and Abbot on Shipping. Per Curiam. The defendant moves in ar- rest of judgment. The declaration, states, 1st. That the defendants were owners of the brig Neptune ; that the brig, when at sea and bound for New York, was in distress ; that the plaintiffs contracted with the master to bring her safe into port for $500 ; that they brought her in accordingly. 117 181 SUPREME COURT, STATE OF NEW YORK. 1803 2d. The like against the owners. 3d. The usual counts on a quantum meruit. Three questions are raised : 1st. Whether the action is maintainable on the first count, which involves two questions : 1. Could the master, by such contract, bind the owners ? 2. Was the contract lawful, the plaintiffs being branch pilots belonging to the port of New York ? 3d. Can the defendant move in arrest of judgment after attending the execution of the writ of inquiry, and examining witnesses ? 3d. May not the court order an inquiry de now on the third count, in the event of the first and second being held bad ? 182*] *The question of the right of the mas- ter to bind owners, it is not necessary to decide. The legality of the contract is most material. The act for the regulation of pilots and pilotage for the port of New York (7 sess., ch. 31, s. 2 and 3.) makes it the duty of pilots to give all the aid and assistance in their power to any vessel appearing in distress on the coast, and for neglect or refusal subjects them to a fine or forfeiture of their places; but for the encouragement of such pilots who shall distinguish themselves by their activity and readiness to aid vessels in distress, it enacts, that the master or owner of such vessel shall pay to such pilot, who shall have exerted him- self for the preservation of such vessel, such sum for extra services as the master or owner and such pilot can agree upon ; and in case no such agreement can be made, the master and wardens of the port are empowered to as- certain the reasonable reward. It being made the duty of the pilots to as- sist the defendant's vessel, it was oppression, in them to exact the stipulation in question. It would lead to abuses of the most serious nature if such contracts, founded on such considerations, were held to be legal. There are several cases in the books tending to show the leaning of courts of justice against the oppressions of persons in public trust, and the illegality of exacting previous reward for doing their duty. (Bridge and Case, Cro. Jac.,103; Stolesbury v. Smith, 2 Burr., 924.) The law allows them sufficient compensation for extraordinary exertion after the service performed ; which shows it was an object with the Legislature to prevent undue advan- 183*] tages *being taken. We are, there- fore, of opinion, the first and second counts are bad, as contrary to public policy and the spirit of the act. As to the second question, whether it be too late to move in arrest of judgment after attending the execu- tion of the writ of inquiry, we are of opinion the authorities adduced do not apply to questions on the merits, but only to formal defects in the pleadings. (1 Sell., 528; 2 Wils., 380.) On the third point we are of opinion, on the authority of Eddoire* v. Hopkins, in Doug- las, that the plaintiff may, on payment of costs, have (if he solicits it) an inquiry de now on the quantum meruit, reserving the ques- tion, however, whether, on such inquest, he shall be entitled to more than his legal allow- ance, not having made the prescribed appeal to the master and wardens. 118 AUGUST TERM, 1803. JOTHAM POST v. WILLIAM WRIGHT AND ROBERT BUCHAN. Default Affidavit of Merits Absence of Counsel. AN inquest had been taken in this cause, at the last sittings, in June, at New York. Mr. Hoffman moved to set it aside, on two affidavits, one made by the defendants, which stated that they verily *believed [*184 he had a good, substantial, and legal defence; the other by the counsel in the cause. This last set forth that he was counsel for the Humane Society of New York, and, in that capacity, obliged to visit the jail on Monday in every week ; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the society, when he found an inquest had been taken in the suit ; that he, on the same day, wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaint- iff would abandon his inquest, which he re- fused to do. Mr. Hoffman also observed, the calendar had been gone through more than once, and that the plaintiff needed not to have lost the sittings but for his own obstinacy. Mr. Woods relied on the counter affidavit of the plaintiff's attorney, which stated that the cause was duly set down in its order, on the day-docket ; that it was regularly called and tried; that when called on, , Esquire, was in court, and in the hearing of the deponent, said he was of counsel for the defendants, but as he did not see his clients, nor any of their witnesses, he would not ap- pear ; that on this the defendants were called, and an inquest taken. Mr. Woods remarked, that, if after these facts the inquest should be set aside, there would be no end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel out *of the way, and [* 1 8 be sure to gain a term whenever he pleased. Per Curtain. All reasonable notice to at- tend and defend the suit was given. The cause was on the day-docket, and there is no kind of excuse why the defendants were absent. They had a counsel in court, and might have been there themselves, with their witnesses. The defendants, therefore, can take nothing by their motion. N. B. Hoffman urged strongly the rigor of the practice, that it would operate only against the attorney of the defendant ; that this was the first instance of such strictness. The court answered, there must be a first time in all proceedings ; that they found it neces- sary to enforce their rules, and had made a determination so to do, as the only mode of having them obeyed. COL. AND CAINES. 1803 JOHN P. RYERS v. WILLIAM HILLYEK. 185 JOHN P. RYERS t>. WILLIAM HILLYER. Nonsuit Trial not had Mistake in Notice Costs Stipulation. O FENCER moved, on the common affidavit, O for judgment as in case of nonsuit for not proceeding to trial. Mr. Hoffman resisted the application, because the notice was titled William Hillyer v. John P. Ryers instead of William Hillyer ads. John P. Ryers : this, he said, was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not 186*] have urged it except from its being *one of Mr. Colden's causes, whose state of health the whole court knew. Mr. Spencer, contra, observed, that there could be no force in the objection, unless it appeared that the party had been misled: 1 The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore it must have come from a defendant. In the next place, it was on an affidavit, a copy whereof was annexed, and that affidavit was rightly entitled. It is & mere question of who shall pay costs. There has been no countermand, and the defendant kept all the circuit with his witnesses. Mr. Hoffman. As this is the first default, will the court oblige us to stipulate? Per Curiam. Stipulate to try at the next circuit for the City and County of New York, jmd pay the costs of the present application. .JAMES BRANDT, on the demise of WILLIAM RICKETS VAN COURTLANDT, and PHILIP VAN COURTLANDT, t>. MATTHIAS BUCKHOUT and ABRAHAM BUCKHOUT. Nonsuit Trial not had Laches Costs. , fPHE issue in this cause had been joined in J. January, 1801, and notice of trial given 187*] in the June following: *it, however, (lid not come on, in consequence of the de. fendant's applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that State, it was found the witness had removed into Kentucky, whither he was followed, and his evidence to the inter- rogatories taken, on a deposition made before two justices of the peace. A copy of this, ac- companied with an affidavit of the facts, was served on the plaintiff's attorney in August, 1802, and communication at the same time made, that a regular commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; however, for not proceeding to which, Mr. Woods now moved for judgment as in case of nonsuit. 1. On the same principle, where a notice of exe- cuting a writ of inquiry " on Tuesday, the 14th of January instant," was given, the court of C. B. re- fused to set aside the execution of the writ because the 14th was on a Thursday, saying it was. clear the defendant could not have been misled. Batten and Harrison, 3 Bos. & Pull., 1. OL. AND CAINES. Mr. Spencer opposed the application as being too late, insisting it ought to have been made the very first term after the neglect. Per Curiam. The defendant has not ac- counted for his delay; if that be not done, and the application be not immediately after the laches, the default is waived, and cannot now be taken advantage of. Mr. Woods hoped the covyjt would order the plaintiff to stipulate. Per Curiam. He is not bound to stipulate. Spencer prayed costs for resisting the appli- cation. Per Curiam. Let the plaintiff take them. *Ordered, That the defendant take [*188 nothing by his motion, and pay the plaintiff hi* costs of opposing. PETER A. CAMMAN 0. THE NEW YORK INSURANCE COM- PANY. Consolidation Actions on Policies of Insurance. THE plaintiff had, for himself and several other persons with whom he was variously interested, effected eleven policies on distinct parts of the cargo of the same vessel. The name of the plaintiff was in each insurance, but associated with different parties, according as he was connected. The point in dispute was the same in all. Mr. Hoffman moved to consolidate the actions, or to stay proceedings, in ten of the suits, till the eleventh was determined; the defendants being willing to pay on the residue, if that should be determined against them. The ob- ject of his endeavour was, as he said, to save the enormous costs which would otherwise accrue. Mr. L. Ogden. The contracts are several; and though a number of actions on one policy will be consolidated, that is because the contract is one; and therefore, the very reason of the practice in such a case, is sufficient to overrule the present application. An application was made by myself to this court for leave to consolidate five actions on five promissory *notes to the same [*189 plaintiff, and refused, because of the diversity of the contracts. 1 Per Curiam. The contracts being separate and independent, it is not a case for consolida- tion, and not to be distinguished from that of the notes. There never was an instance of consolidating different policies. 1. By the practice of the English courts, if the defendant be held to bail in two actions which might be joined, the plaintiff will be obliged to consolidate and have to pay the costs of the application. Cecil v. Briggs(2D."&E., 639.) 119 189 SUPREME COURT, STATE OF NEW YORK. JAMES SHUTER 0. RICHARD S. HALLETT. 1. Commission Vacatur Other Party Joining. 2. Idem Rule to try without Commission. DL. OGDEN moved for a rule to vacate the . rule for a commission which had issued in this cause, in the spring of 1802. The facts, as appeared by affidavit, were these: A commission had issued at that time, in which the defendant had joined, but not being returned, another was sued out in November last, and as there were no hopes of the first be- ing returned, the parties agreed that the testi- mony taken on the second, which was on the same interrogatories, should be read in evi- dence on the trial. After this, the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission. Per Curiam. The commission is as much the defendant's as the plaintiff's, and he may 19O*] take the benefit *of it on trial. We cannot, therefore, vacate the rule, but the plaintiff may have one to proceed to trial not- withstanding the commission. 1 JOSEPH GROVER v. BENJAMIN GREEN. Arrest WJiUe Attending Court Rule to Dis- charge Notice. THE defendant was attending a reference, under a rule of the Court of Common Pleas for Cayuga, in a suit wherein he was plaintiff and the present plaintiff defendant, when he (Green) was arrested by Grover on a writ out of this court. Mr. Emott moved for a rule that the defendant be discharged out of custody, on common bail, the plaintiff having abused the process of the court, but no notice had been given of the motion. Per Curiam. By this means anybody may get himself discharged. Mr. Emott. If the affidavit be false, the party may be indicted for perjury. Per Curiam: But the plaintiff may lose his debt. Take a rule to show cause the* first day of next term, why he should not be discharged, and in the meantime, let proceedings be stayed. HUGH LACKEY and JOSHUA BRIGGS v. DANIEL M'DONALD. Discontinuance Cost* Defendant in Prison. rp HE plaintiffs, in July, 1802, had stipulated -L to try this cause at the next Circuit Court, and did not do so. 191*] *Mr. M. E. nildreth, on this ground, now moved for judgment as in case of non-suit. L See Brain v. Rodelicks and Shivers, ante, p. 176. 120 Mr. Schoenhoven, read an affidavit, which was not denied, stating that the defendant, after the commencement of the suit, and before a trial could be had, was sentenced to the State prison, where he still remained, and prayed to discon- tinue without payment of costs. Mr. Van Ness, amicus curia, mentioned that when the defendant rendered proceedings use- less, the court was always disposed to permit a plaintiff to discontinue without costs. lu Jackson, ex dem. Ludlow v. Webb, after issue joined, the defendant abandoned the possession, and the lessor of the plaintiff having entered, did not notice the cause for trial. The de- fendant then moved for judgment, as in case of nonsuit, but the court denied his motion, and gave leave to discontinue without payment of costs. Per Curiam. The opinion of the court is that sufficient has been shown to prevent the judgment of nonsuit. The defendant has, by his own act, deprived the plaintiffs of that remedy, which they might have had against his person; his body is out of their reach, and that by his own act. It is not, therefore, nec- essary that they should proceed and incur ex- penses for nothing, as there is not any prop- erty from whence they can be re-imbursed. The plaintiffs, therefore, are entitled to discon- tinue, and without costs. *RACHEL MALIN [*192 v. EPHRAIM KINNEY. THE SAME c. NATHAN LANE. Nonsuit Costs Stipulation Stipulation to- Abide Result of Like Cases set aside. rPHESE causes were .noticed for trial at the -L circuit held for Ontario, in June, 1802. The defendants attended with their witnesses, but the plaintiff not bringing on the causes, the defendants agreed to waive taking advan-' tage of it, provided the plaintiff would consent that the two above suits should abide the de- cision of a case made in one by the same plaint- iff against George Brown, which turned on the same point, and had, together with another of the same sort, been tried. The plaintiff ac- ceded to the proposition, but at the last term applied to the court to be released from her engagement. This the court was pleased to order. Mr. Emott now moved for judgment of non- suit, and that the plaintiff pay the costs not only of not proceeding to trial in 1802, but those also for not trying at the last circuit. He con- tended that as the agreement was done away on the application of the plaintiff, the defend- ant had a right to those costs which he waived only in consequence of that agreement : The agreement was the consideration of the waiver, and the consideration being taken away, he had a right to insist on not waiving. Then -as to the costs of the last circuit, it was clear he was entitled; because, as the plaintiff had been released and had not tried, it was manifiest she i was in default and costs due. COL. AND CAINES. 1803 AMBROSE SPENCER v. SAMUEL B. WEBB. 193 193*] *Mr. Stuart, contra, showed on affi- davit that the rule to discharge the agreement was made at the latter part of the last term, and that from the late information he received of it, he could not avail himself, at the last circuit of the advantage it afforded. Per Curiam. The application is for judg- ment as in case of nonsuit, and to pay two sets of costs; those of June, 1802, and those of the last circuit. Four causes were depending: Two were tried, and, after the court rose, there was a stipulation that the two causes not tried, should abide the same event as those which had been tried. An application was made in May last to be relieved; that the two causes not tried might be restored, and the plaintiff not bound by his stipulation: This was ordered, and the causes restored as in June, 1802. If the plaintiff was relieved, the defendant was also; and then the stip- ulation being vacated, the causes must stand tn the same situation as in June, 1802. If the defendant had then applied, nothing ap- pears why the rule should not then have been granted, at least a rule to stipulate and pay costs. The only reason to excuse now offered is that the plaintiff did not receive notice of his own rule. Both circuits mentioned have passed without trial; therefore the defendant must have the effect of his motion, unless the plaintiff stipulate to try the cause at the next circuit, and pay the costs of that in June last. 194*] *AMBROSE SPENCER, SAMUEL B. WEBB, on Scire Facias. 1. Scire Facias Rule Notice Default. 2. Idem. Judgment Irregularity. THE facts, as they appeared by affidavit, were as follows: The defendant was served with a scire fa- cias on Tuesday, the 3d of May last, which was returned scire fed on the 10th. On the the same day the plaintiff entered a rule for the defendant to appear in four days and plead in twenty after notice, or that his default be entered. Notice of the rule was not given, nor was it put up in any conspicuous part of the clerk's office, nor was any affidavit of notice on file. Default was entered, without any such affidavit, on the 14th of May, on which day the plaintiff entered his judgment also. The plaintiff swore to a just and material defense, and that he had paid the plaintiff six hundred dollars which had not been allowed him, and offered to let the judgment stand as a security. On these grounds Mr. Van Vechten moved to set aside the default and judgment thereon, and the defendant be let in to plead. Mr. Spencer. There are several grounds of ob- jection taken to th.e proceedings. One is that notice ought to have been given of the return of the sti. fa. and of the rule entered. From the fourth rule of this court, made in April term, 1796 (Ante, p.- 2), it appears that rules COL. AND CAINES. to appear on sci. fa. and in ejectment, are placed on the same footing. It is not neces- sary, on entering the rule, to give notice that the rule has been entered. *The notices [*19o by the sci. fa. and in ejectment, by the dec- laration, are tantamount. When the attor- ney appears, then notice is required. But a sci. fa. is notice in itself. The default, there- fore, being regularly entered, must stand. The next question then is, whether, if the the proceedings are correct in entering the de- fault in four days, the court will let the de- fendant in, on the merits? Grmrold v. Stovgh- ton (ante, p. 146); decided the last term, is in point, that as there is no account given for not appearing, the default is correct, and will not be set aside. There is no excuse for not entering an appearance, and for four days the defendant certainly slept, In Edwards ads. McKimtry (ante, p. 125), the court said that a default must always be accounted for. Mr. Graham, asamicuscurice, observed that it being a point of practice of some importance, he took the liberty to mention that according to the English practice when, on a sci. fa. to receive, two nihils were returned, judgment was signed of course on showing the returns to the officer. Mr. Van Vechten. We are not to obtain the effect of our motion for two reasons. Because according to the English practice there are no rules on a sci. fa. and because no account is given for the default. As to the first, what- ever the practice may be in England, our courts have established that a four-day rule is to be entered on the return of the writ, and then the ordinary rule is to be given, and if the default be not entered, the defendant may come in at any time. A scire facias is to all in- tents a new suit, and therefore there should be the same practice as in other cases; *there may be a plea, &c. In this [*19(> the default has produced no injury. There could be no judgment till next term. There- fore this rigid rule of saying that if you do not account we will not hear you, though you give evidence of reasons for our interference, can have no force when we apply to the dis- cretion of the court. The power used in these cases is founded on justice, and when- ever anything like injustice presents itself, the court will interpose and see that no advantage is taken. Here the defendant offers to let the judgment stand, therefore the plaintiff runs no risk, as the defendant's lands are bound. He swears six hundred dollars have been paid on the judgment. The question then is, whether the defendant does not necessarily deserve favor. Whether the plaintiff shall have execution for six hundred dollars more than are due when merits are sworn to. That the plaintiff is able to repay it, is no answer: the oppression of thus wringing so much from the defendant may be intolerable. No- tice, either express or constructive, is neces- sary to a default; here there is neither. O-ris- icold v. Stoughton does not apply; it was a mere irregularity, and no affidavit of merits. The court cannot too much bear in view that no injury can result by letting the defendant in to plead. Mr. Spencer, in reply. I have strong doubts whether on a scire facias there can be any de- 121 196 SUPREME COURT, STATE OP NEW YORK. 1803 fence 1 except nul lid record, or the judgment satisfied. 197*] *P?r Curtain. It appears that the defendant did not enter any appearance be- fore the expiration of the rule, nor indeed was it until some weeks after, that any ap- pearance was entered. It is suggested in an- swer, that notice ought to have been served of the entrv of the rule: this is on the other hand denied; and rightly. The default, there- fore, is regular, and no reason whatever is as- signed how it has been incurred. In all such | cases we have determined to hold the party to his default. The rule (rule of October, 1791, f Referees Absent Witnesses Improper Damages Enmity of Referee Newly-discovered Evidence. THE present action was instituted to recover damages for not delivering a boat alleged to have been purchased by the plaintiff. Mr. Woods moved to set aside the report of the referees on an affidavit made by the attorney in the cause, stating these grounds: that the witnesses of the defendant were seafaring men, and that there had been an express agreement between the deponent and the plaintiff's attorney, that the referees should not make up their report until the testimony on the part of the defendant could be obtained ; yet notwithstanding this agreement the refer- ees had reported without waiting for the evi- dence on which the defendant relied; that a sum had been allowed the plaintiff for a loss, said to have been sustained by not being en- abled to carry a quantity of wood to New York, though it was proved and even admitted that a part of the wood was previously sold by the plaintiff, and the residue might have been conveyed to New York, had he thought fit; that the referees were nominated by the deponent, without the knowledge of the de- fendant, between whom and one of them a quarrel had taken place, which was not made up; that by the next circuit the defendant hoped to be able to procure *testimony[*2O3 which would at least diminish the damages against him. Mr. Skinner, contra, read his own deposition, setting forth that he did not recollect the agreement above mentioned, and that at least it was not in writing; that the referees met several times, and were as often adjourned at the request of the defendant's attorney un- der the pretence of not being able to pro- cure the attendance of his witnesses; that at the last meeting the defendant's attorney de- clined summing up, and so far from any enmity existing between the defendant and one of his referees, the very party named as being inimical was his special bail. Per Curiam, delivered by LIVINGSTON, J. The defendant moves to set aside the report of referees, alleging: 1. That it was agreed by the plaintiffs at- torney that no report should be made until the defendant's witnesses could be procured, which was afterwards disregarded. This agreement not being in writing, and being denied by the plaintiff's attorney must be laid out of sight. The court cannot too fre- quently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar. Many mistakes, much misunder- standing and controversy will, by this mea- sure be avoided. In the present case it appears 123 203 SUPREME COURT, STATE OF NEW YORK. 1803 that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If 2O4*] they were abroad, he *might have ap- plied to the court (for a term intervened be- tween the appointment and report of the refer- ees) for an order on them not to proceed for a reasonable time, which would have been granted, or a judge at his chambers would have ordered the proceedings to stay until ap- plication should be made to the court. 2. Another objection is that a sum was al- lowed, which was not proved to be due. Of this allegation there is no satisfactory proof, and therefore we can take no notice of it. 3. A third objection is an enmity between the defendant and one of the referees. This reference, it is to be observed, was nominated by the defendants attorney, and al- though he might have been ignorant of the quarrel spoken of, the defendant, by his ac- quiescence in the appointment, and submit- ting the cause to his decision, cannot now avail himself of this challenge. He should have applied* to the court to remove him and appoint another. It is somewhat remarkable, however, that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause. 4. The defendant states that "he can now introduce evidence to diminish at least the damages reported." This is very loose, to say the least. Why was not this testimony ob- tained before? And to what exterit will the damages be reduced, if it be offered now? Will it justify a diminution of only one dollar or less? If so de minimi* non curat lex, and 2O5*] *if the discovery had been made even prior to the report, it would be no reason for disturbing it. Let the defendant take nothing by his motion and pay the costs of this applica- tion. THE PEOPLE v. HARRY CROSWELL. Arrest of Judgment Libel Trial at Circuit Tried as Civil Action. rPHE defendant had been convicted before J- His Honor Chief Justice Lewis, at the last circuit, held in and for the County of Colum- bia, on an indictment for a libel on the Presi- dent of the United States. The proceedings were originally commenced before the justices in general sessions, from whence they were re- moved into this court, and went down to the circuit in the usual manner. On his convic- tion recognizances were taken for his appear- ance the first day of term to receive judgment, but his counsel considering^ the Chief Justice to have totally misdirected the jury, were rather at a loss how to bring the matter before this court. It was resolved by the bench that on the cause being brought up and sent down to the circuit, the suit, though in its nature a criminal prosecution, took the course of a civil action ; that within the first four days of the term ensuing the conviction, a motion in arrest of judgment might be made, or the parties may make a case, and bring everything fully before the court. This measure they advised", as being in the present instance more explicit, 124 ' and it being adopted, they gave day till the fourth day of next term, taking recognizances from the defendant and two others for his due appearance, himself in $500, his sureties in $250 each. *LUSHER v. WALTON. [*2O6 Motion w liefer Answering Affidavit Weight of Evidence Closing of Accounts Questions of Law Insufficient Affidavit. Citation Bedle v. Willett, Col. and Caines's Cas., 148, followed. VAN VECHTEN. This is a motion for a rule to refer. The affidavit states there are long accounts to adjust. Mr. Emott. I must oppose it. The notice does not mention the names of the referees; from Bedle v. Willett (ante, p. 148), decided last term this is necessary. Per Curiam. If the cause contains long ac- counts you cannot try it. Mr. Spencer observed to the court that a cause should not be referred at the circuit; but from the case cited, the application might be re- newed the next non-enumerated day. Mr. Emott. If the court say they will hear it, I shall waive the objection. Per Curiam. The omission must be ac- counted for, and therefore we cannot say we will hear it. All notices must be for the first day; if not, an excuse must be offered. But a party's misapprehending a rule has frequently been received as an excuse. The decision quoted has altered the former practice, and if the party will swear he did not know it, he may apply again. Mr. Emott waived his objection as to the omission of the names. *Mr. Van Vechten read his affidavit ]*2O7 and another in support of it. Mr. Emott opposed the rule on a deposition by the plaintiff, stating an account between him and the defendant had been long ago settled, on which there appeared a certain balance due, for which the present action was brought, and that he believed the matter in dispute involved points of law. Per Curiam. From the plaintiff's affidavit it does not appear there was a final closure of accounts, so as to entitle to oppose the rule; besides, there are two affidavits against him ; the weight of evidence must, therefore, pre- ponderate, and his single affidavit must give way. His second ground for resisting the ap- plication is, that on the examination questions of law will arise; This, if properly stated, would have been a good reason for denying the rule; but on that point the affidavit is de- fective: it states his information and belief that it will arise; it ought to have said that " he is advised by his counsel," and even then to have set forth the particular and specific- point, to satisfy us that it did exist. For these reasons, therefore, as the first taken objection is waived, the plaintiff's affidavit is insufficient and the defendant must take his rule. COL. AND CAINES. 1803 JACKSON v. MARTIN M'Evoy. 207 JACKSON, on the demise of JOSEPH WINTER, JACKSON, on the Demise of RODMAN, MARTIN M'EVOY, Tenant in Posession. Ejectment Judgment Vacatur on Motion of Claimant, not Landlord or Privy. OODS applied to vacate the judgment entered against the casual ejector, and 2O8*] to admit Henry Masterton *to be made defendant, on such terms as the court might be pleased to order. From the affidavit of Masterton, it appeared that the suit was instituted to recover posses- sion of forty-five acres of land in the County of Westchester, to which he claimed title, and has a real and substantial defence to make: that, on the 26th day of July last, the de- ponent discovered in the book of common rules of this court, that a rule for judgment against the casual ejector had been entered in the above cause, on the 12th day of May pre- ceding; that the tenant in possession never in- formed the deponent of any declaration in the said suit having been served upon him, till a long time after the rule for judgment had been entered; that the deponent believed the knowledge of it was withheld from him, owing to a good understanding between the lessor of the plaintiff, and the tenant in possession, to prevent that defence being made, which the lessor of the plaintiff was, previous to the commencement of the above suit, told by the deponent he would make, and that on search he finds no record has been filed in the above cause. These facts and allegations, he contended, were tantamount to a positive assertion of title, that it was impossible without one to have a real and substantial defence. That nothing would be lost by the plaintiff, as a trial might be had at the circuit in September. That the question would then fairly come up, whether the deponent or Winter was really entitled. 2O9*] *RADCLIFF, J. There does not appear to be any relation between Masterton and the tenant. Mr. Woods. Perhaps the affidavit does not go quite far enough in stating that expressly, but surely it may well be gathered from the whole. Mr. Emott, contra. The deponent does not swear to any title, he only says he has a claim; he does not swear that he is the landlord; not even that there is a privity between him and the tenant. If, then, there is no title, if he is not landlord, and if there is no privity, how can he be made a defendant? If a man may thus come in and vacate a judgment without any complaint from the tenant, there is not one which may not be set aside. There is nothing stated which shows that notice of the eject- ment ought to have been given to the deponent. The tenant is not obliged to hunt out all per- sons who have claims; he can only be expected to communicate to his privies. Per Curiam. The party can take nothing "by his motion. USSELL moved for judgment, as in case Lt of nonsuit, for not proceeding to trial. The affidavit stated that issue was joined pre- vious to June, 1802. Mr. Van Vcchten read an affidavit, setting forth that thirty -five cases were on the calendar, of which only thirteen were tried, but, from the length of those, and the criminal business be- fore the court, the present action could not be heard. Per Curiam. As many causes were tried, it is incumbent on the plaintiff to show that those issues were older than his. Let the de- fendant take the. effects of his motion, unless the plaintiff stipulate and pay costs. DAVID DBAS V. PASCHAL N. SMITH, PRESIDENT OP THE COLUMBIAN INSURANCE COM- PANY. 1. Nonsuit Trial not had Additional Affida- vits. 2. Idem Commission Proof not given Oilier Witnesses Due Diligence. TSSUE had been joined in this cause in 1800, _L and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice for the last term, that he would then move for judg- ment, as in case of nonsuit. On its being brought on, the plaintiff stipulated to try at the next sittings, or circuit court, reserving to himself the right of applying to the court for a renewal of the stipulation, in case the other commission, then pending, should not be re- turned. *Mr. Benson now renewed the applica- [*222 tion for judgment, on an affidavit stating that a few days after the above stipulation was en- tered into, the commission to which it alludes CAINKS. 1803 DAVID DBAS v. PASCHAL N. SMITH. 222 arrived, and that the cause had been duly no- j ticed for the last sittings, but had not been brought on. Mr. Woods, contra, read an affidavit by the parties on account of whom the plaintiff had effected the policy of insurance, on which the present action was brought. The affidavit stated the loss, exhibition of proofs, application for payment, refusal to pay, commencement of suits, suing out of commissions, and their return. That the interest was not fully proved j by the witnesses examined under the last com- 1 mission, as they were privy only to the lading of what was purchased by one of the witnesses, and covered by a former policy, but knew nothing of the residue; that the cause jsvas, nevertheless, noticed for trial under an idea of proving interest in sundry other articles of the cargo by one York Wilson, who, though a sea- faring man, the deponent believed to be per- manently resident in New York, as he had lived there for twelve months uninterruptedly but had lately gone to the East Indies; the de- ponent first learned this circumstance during the time of the last sittings, and his witness was not expected to return before the ensuing winter; that being advised the testimony of Wilson was material, the defendant did not proceed to trial. But that he was advised and believed, one William Robinson, shortly ex- pected here, was a material witness for him, and that he believed he should be able to ob- tain Robinson's attendance at the next sittings in New York, or the circuit thereafter; that, 223*] as the deponent *was informed and believed, the ground of defence insisted on by the defendant, was the want of interest, and that the deponent understood and believed, the defendant or some person in his behalf, offered to return the premium and pay costs, which offer the deponent refused to accept. That the deponent was informed and believed the cause was one of the oldest on the calen- dar, but was, when called in its order, passed, for the accommodation of the defendant; that the deponent would have proceeded to trial, but for a notice to produce certain papers, which he was not prepared to do. These rea- sons, Woods argued, were sufficient to prevent the object of the motion ; at least, if a nonsuit was ordered, it would be an condition of the defendant's abiding by his own proposal, and paying what was acknowledged to be due, the premium and costs of suit. Mr. Benson offered a counter affidavit to show that York Wilson was a slave, and therefore the want of his testimony could never have prevented the cause from being heard, be- cause, had he been present, his evidence could not have been received. Mr. Woods contended, that counter affidavits were inadmissible, because, in the first place, a copy had never been furnished, and in the next place, the practice was to exclude them, it be- ing incumbent on the party moving, to sup- port his application on his original deposi- tions. Mr. Benson acknowledged the general prop- osition, but distinguished the present case by this circumstance; that the counter affidavit 224*] was not to support the motion, *but to contradict a collateral and independent fact asserted by the plaintiff; and as to not being COL. AND CAINES. N. Y. REP., BOOK 1. furnished with a copy, the plaintiff had not given a copy of his. Mr. Woods. Copies of affidavits in excul- pation, are never afforded, those to charge or demand, are. Per Curiam. The application is for judg- ment, as in case of nonsuit; this is opposed by a deposition read by the plaintiff, disclosing facts, to rebut which, the defendant offers a counter affidavit ; a question is made whether it can be received. On examining into the point, the court finds the practice to be settled against its reception. It is expressly decided in Grove ads. Campbell, ante, 115, "that a party can never support his motion by any affidavits but those on which he originally grounds it. " The motion must, therefore, depend on the first affidavits. From that by the plaintiff, among other things which it contains, it ap- pears that the commission mentioned in his stipulation as the one then pending, was re- turned before the last circuit, and that he might have then gone to trial. His affidavit further states that the return was examined, and the proof wanted not contained in the answers to the interrogatories; that the interest required did not appear; that there was a witness who resided in New York, by whom it was expect- ed to establish the same facts. This witness was not applied to, nor was any measure taken to procure his testimony till after the com- mencement of the court, and then he is found to be gone to the East Indies. There is, how- ever, another *witness who knows [*225 something material, but it is not stated what, nor that any measure is taken to procure his attendance. It is further stated, that this is one of the oldest issues; that it was called on and passed, for the accommodation of the de- fendant, though it is before sworn he did not proceed to trial, because the testimony of York Wilson was, as the plaintiff was advised by his counsel, material and could not be had. The court are of opinion the reasons are not suffi- cient. This is a second application for judg- ment; there has already been a stipulation, and that a special one. The wnt of a witness is alleged, and no diligence shown to procure him. There ought to have been immediate measures taken to subprena him. It does not sufficiently appear that the cause was passed for the accommodation sworn to; it was necessary to have substantiated this; it rests on the single oath of the party; the counsel himself ought to- have stated this. But though we should grant the nonsuit, we are requested to do this on condition. The affidavit as to making the offer, is equivocal; and if in any case we would impose such terms, this is not one, for the plaintiff has not dis- closed enough to show the proposition was ever made. Mr. Benson pressed the court to reconsider the case determined in October term, 1800, (Grove ads. Campbell), and weigh his distinc- tion. Per Curiam. We shall look into it, and if we see occasion to alter our opinion, the bar will be informed *of it. In the mean [*22<> time, judgment of nonsuit must be entered. N. B. The court never spoke to it again. 9 129 226 SUPREME COURT, STATE OF NEW YORK. 1803 THE PRESIDENT AND DIRECTORS OF THE MANHATTAN COMPANY, v. LEDYARD & LED YARD. Variance Negotiable Instrument* of Partner- ship Pleading Legal Effect. HIS case was submitted without argument. T RADCLIFFE, Justice, now delivered the opinion of the court. This is an action by the plaintiffs, as in- dorsees of a promissory note made by Brown, Talbot & Co. "to the defendants, for 488 dollars and 17 cents, and indorsed by them to the plaintiffs. The declaration avers that James Brown, William Talbot and John Goodere, acting un- der the firm of Brown, Talbot & Co., made the note in question, the proper name and firm of Brown, Talbot & Co., being thereunto sub- scribed; and that the defendants being part- ners under the firm of Austin Ledyard & Co. indorsed the said note in writing, the proper name and style of the said firm of Austin Led- yard & Co. being thereunto subscribed. The other parts of the declaration are in the usual form. The partnership of the makers and indorsees of the note, and the making and indorsing of the same as above set forth, are admitted. The evidence on the trial was that Brown, one of the makers, subscribed the note by the 227*] partnership *firm, and that Austin Led- yard, one of the firm of Austin Ledyard & Co., indorsed the same with the name of that firm. The question submitted by the parties is, whether the evidence supports the aver- ments contained in the declaration. We have no doubt that the averments were sufficiently supported by this evidence. It was not necessary to set forth that one of the part- ners of each of the firms made and endorsed the note in the name or style of the respective partnerships. Although made and endorsed by one of the partners of each house, the legal effect was the same, and it is in all cases suffi- cient to set forth swwriting according to its le- gal effect or operation. We are, therefore, of opinion that the plaintiffs are entitled to judg- ment. JOHN J. ARJO v. JOAQUIM MONTEIRO. Removal of Causes to Federal Courts Petition by Alien Time. BY THE COURT. If an alien defendant file his petition, &c., to remove the suit into the circuit court of the United States, at the time of filing special bail, he is in season, though the bail may have been excepted to. JACKSON, on the demise of HOOEBOOM, JOHN STILES, AUSTIN GRIFFIN, Tenant in Possession. Amendment Ejectment Filing in Blanks in Declaration Notice. A TITLE to the premises in question had -/V been awarded to the lessor of the plaintiff ISO by the commissioners appointed to settle dis- putes to land, in the county of Onandago, and he had served declarations on the tenants, with the usual notices annexed. The declara- tions, however, contained blanks for the towns *and counties, which, at the time of [*22H service, were not filled up, nor were they in the copies annexed to the affidavits of service, and filed with them, on which the usual rule was entered. The declarations were served on the tenants within the three years allowed by law for prosecuting the titles awarded, but they were now elapsed. Mr. Spencer, on these circumstances being dis- closed by the affidavit of the plaintiff's lessor, stating also the services having been made with the full intent of carrying into effect the actions instituted, moved for a rule against the ten- ants, to show cause, by the first day of next term, why the declarations should not be re- spectively amended, by the insertion of the names of the towns and counties, and that fix- ing up the rule in the clerk's office should be deemed good service. Mr. Emott. Are the tenants to take notice of declarations which are mere nullities, void in themselves, and to which they are not parties? They have not appeared; they are not in court, and 'John Stiles is the only defendant to the suit, that can be known by the record. Per Curiam. Notice having been served on the tenants, it was enough to put them on in- quiry. There is time enough for them to come in if they please. Take the effect of yaur motion. COLE v. STAFFORD. Bail Discharge of Principal under Insolvent Laics Stamp. IN this case the exoneration of bail, whose principal had been relieved under the insolv- ent law, was *opposed on the ground [*22J> of the discharge not having been duly stamped according to the act then in force. Per Curiam. We cannot go into it; the act makes the discharge conclusive except in cases of fraud; the matter was before the court be- low, and they were the proper judges whether every thing was regular or not. GARRIT ABEEL v. WOLCOTT, who is impleaded with VAN NORDEN. Inquest Setting aside Writ not before the Court. VAN VECHTEN, on behalf of the plaintiff, V moved that the writ of inquiry, and pro- ceedings stated in the affidavit on which he applied, should be set aside, and a writ of in- quiry issue de now. The affidavit set forth, that by an agreement in writing entered into COL. AND CATNES. 1803 JACKSON, EX DEM. FINCH ET AL., v. JOHANNIS KOUGH. 229 between the attorneys of the parties, it was stipulated that on the execution of the writ of inquiry, every defence which could have been made, had a trial taken place, should be availed of; that both sides should have the same liberty of excepting to the admissibility of evidence, reduce their objections to writing and make a case in the same manner as if the cause had been heard at the circuit. That the evidence of each party having been gone through and closed, the attorney for the plaint- iff went home, after which the jury called in the defendant Wolcott's attorney, and asked him if a verdict should go against Wolcott, whether he could recover his proportion against Van Norden? and whether, if it should be against the plaintiff, he could carry it before the supreme court? To the first of which 23O*] questions, Wolcott's attorney *an- swered no; and to the latter, yes; in conse- sequence of which a verdict was rendered against the plaintiff, but the writ has never been returned, but has been handed to the plaintiff's attorney, without any inquisition annexed. Per Curiam. The application is to set aside a writ of inquiry, when there is none before the court. There is no return, no inquisition, and nothing to set aside. There was a written agreement, which does not appear to have been complied with. The plaintiff is in pos- session of his own writ of inquiry, and we see no objection to his issuing a new one, for as the writ is not before us, we cannot grant him the effect of his motion as to setting it aside. JACKSON, on the demise of FINCH ET AL. v. JOHANNIS KOUGH. Ejectment Amendment Of Declaration Plea Costs. TV ECLARATIONS had been served in these -U causes nearly six years ago. Mr. Van Vechten moved to amend by insert- ing several demises from different lessors. Mr. Metcalf opposed it on the ground that it might vary the tenant's defence. Mr. Van Vechten observed, that in the Warren- Bush cases the same thing had been done. If the defendant relinquish his defence, then all the costs heretofore incurred are to be paid; if he abide by it, then there is no injury done. 231*] The costs in the first case *must be paid up to the day. This the plaintiff is will- ing to do, and accept any plea so that the cause might be brought on at the next circuit. Per Curiam. . Amend on those terms. WILHELMUS VAN DER MARK #. JAMES JACKSON on the demise of Os- TRANDER. Writ of Error Non pros Writ Not Returned. IN ERROR. Judgment having been entered in the court of common pleas for the county COL. AND CAINES. of Ulster, on a verdict for the now defend- ants, the present plaintiff brought his writ of error returnable in this court. To this the clerk of the common pleas made his return in the manner said to have been usually practised in that county, by annexing a transcript of the record, and delivered it to the now plaint- iff's attorney, who sent it back with directions to annex the original record. This was not done but the writ re-delivered to the plaintiff's attorney, with only the transcript returned. The defendant, without any service of a scire facias quare executwnem non, and without giv- ing any rule to assign errors, nonprossed the plaintiff's writ, before it had been returned and filed, served him with a copy of a bill of costs, and sued out a writ of possession. Mr. Gardinier, on affidavit of these facts, moved to set aside the judgment of nonpros for irregularity, and that if any writ of pos- session had been issued, a writ of re-restitu- tion be awarded. *Per Curiam. As the writ was never [*232 returned, this court never was in possession of the cause; whatever has been done here, must therefore be set aside. Take your rule. l 1. See Leith v Mac Ferlan, 3 Burr, 1772 ; Accourt v. Smith, 1 Ld. Raym.. 339. BERIAH PHELPS . TRISDALE EDDY. Nonsuit Trial not had Continued to Day in 4 Term Adjournment of Court Absent Wit- ness. VITOODWORTH, on an affidavit stating that V? issue had been joined in this cause in November, 1801, and noticed for trial at the last circuit for the county of Columbia, but not brought on, moved for judgment as in case of nonsuit. Williams read a counter deposition acknowl- edging the notice, but adding that the attorney for the defendant did not attend; that his counsel, however, was there, with whose con- sent an agreement was made between the agent for the defendant and the plaintiff's at- torney, that the cause should not be brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day, the court adjourned; that it was impossible to bring on the trial during the cir- cuit, because, in consequence of the agree- ment entered into, the plaintiff had sent his witness home, and they were not to return till the Friday appointed. , Per Curiam. IM the defendant take nothing by hi motion, and pay the plaintiff his costs for opposing. *JOHN RUSSEL JONATHAN BALL ET AL. [*233 1. Nonsuit Trial not had Unavoidable Events Costs. 2. Notice Service on Agent Per- sonal Service. THE court ruled in this cause, that service on the agent of an attorney plaintiff is as 131 233 SUPREME COURT, STATE OK NEW YORK. 1803 good as in any other suit, and that it need not be personal. Also that though unavoidable oc- currences may prevent judgment, as in case of nonsuit, yet they will not, separately consid- ered, excuse from payment of costs; for the misfortune of the plaintiff ought to be borne by himself, and not work a prejudice to the defendant. ROBERT LYLE t>. ISAAC CLASON, AND ISAAC CLASON v. ROBERT AND JOHN LYLE. 1. Shipping Contract of Master Receipt of Benefits by Owner Set-off. 2. Contract Parties Partnership Debts and Claims. rpHESE were cross-suits, brought under the J- following circumstances: On the first of September, 1793, Robert Lyle engaged with Clason to go to Europe as his agent, and transact his business at a salary of ISO/, per annum, New York currency, besides his expenses. In consequence of this arrange- ment, Robert Lyle embarked on board a ves- sel of Clason's, called the Hafe, destined to Hamburgh, with a cargo of sugar and coffee, In an account made out by Robert Lyle, against Clason, he charges his salary for six months, at 421. 3s. 4d. ending in March, 1794, No evidence appeared that Clason either then, or at any time after, discharged Lyle from his service; and in an account rendered by him to Robert Lyle, he gives Lyle credit for one year's salary at the above rate. 234*] *ln March, 1794,at which time John Lyle was employed in the Loan Office of the United States, Robert was in Paris, and while there, entered into a contract with the French government, ostensibly in his own name.but in fact for the house, and through the influence of Delard, Swan & Co. of Pans, for the deliv- ery of from ten to fifteen hundred tons of pot and pearl ashes, in any port of France, at 53 sterling per ton (payable as soon as delivered), two fifths in bills on Hamburgh, and three fifths in louis d'ors, with a license of exporta- tion for the specie. On the nineteenth of the same month, Rob- ert Lyle wrote to Clason an account of the contract, urging him to embark in it, and in- closing a more particular letter from Swan, offering Clason an interest in the contract, by the terms of which the profits were to be thus divided: one third to Delard, Swan & Co., and two thirds to Clason, giving to Lyle for the use of his name, a fifth of the whole; one third of which was to be paid by Delard, Swan & Co., the remaining two thirds by Clason. Robert Lyle, in his letter cautions Clason against being too explicit in what he may write, for fear of capture, and advises him to let the language he might use accord with the appearance the business might be obliged to assume. In consequence of this letter, and without any other information of the contract than what the letter of Robert Lyle contained, Cla- son, in July, 1794, dispatched to France, under 182 the command of one Gideon Gardner, a vessel named the Joseph, laden with pot and pearl- ashes, giving to Gardner at the same time the following letter of instructions: * " Capt. Gideon Gardner, [*235 " NEW YORK, 26th July, 1794. " Dear Sir: You will please to ta'ke charge of the ship Joseph, and proceed as fast as pos- sible to France. I shall not confine you to any one port, but by all means endeavor to get into any port, the first that you can make, which, if you are fortunate enough in arriving safe, you will immediately apply to one of our American Consuls for instructions respecting the customs of the place, and there make sale of your cargo to the best advantage for my account; perhaps you will be able to make a sale of the whole to the republic of France, at a good profit, by taking part in brandy; which, if so, and the brandy should appear to you of a good quality, and at such a price as you might judge would answer to bring here, you will do it; if not, you will endeavor to sell for cash, and if times should appear favourable in England, you will remit the greater part of your avails to Messrs. Bird, Savage & Bird, merchants in London; and if you don't find freight from France, or any other article that will answer, you may run to any port in England, and either load there with salt, or get freight, whichsoever you may judge will be most to my interest. However, it is impossible for me to give you any posi- tive instructions, from the precariousness of the times ; much will depend on your good judgment on your arrival. I think likely you may see or hear from Robert Lyle; if so, he will give you very essential *assistance [*23<> in your negotiating your business in that country. I am, Sir, &c., "(Signed) ISAAC CLASON." Gardner set sail with the Joseph, and on the 4th September, 1794, arrived at Cherbourg. From thence he addressed himself to Delard, Swan & Co., and on the 9th of October, 1794, wrote them thus: "CHERBOURG, 9th October, 1794. " Messrs. Delard, Swan & Co. " Gentlemen: I received yours this morn- ing, of the 15th Vendemaire. I wrote you yesterday, and inclosed you a receipt from the garde Magazin for my cargo. The cost of my cargo I sent you in my letter; yours now men- tions of receiving ; but, agreeable to your re- quests, you have it here inclosed. The" pot and pearl-ashes, as per invoice, cost 12,012 3 0, 12,012 3 " One barrel ashes delivered more than the invoice, which I received as a barrel of beef, aver- age 350 wt. at 46*., 8 1 "New York currency, 12,020 4 ' ' Charges here paid charterage, 1,000 " Do. weighing, 25 1,025 " I know of no other charges here; if any to be paid to the commission of commerce, you will please to charge them in the account. If you *recollect, yoii took off the foots [*237 of the invoice when I was at Paris, on the letter I left with you. The letter I wrote you COL. AND CAINEB. 1803 ROBERT LYLE v. ISAAC CLASON, AND ISAAC CLASON v-. ROBERT AND JOHN LYLE. 237 about my owner, you mention of having found it, and say it was inclosed in yours I received this morning, but I expect you omitted it, as it has not come to hand. Please to forward it as soon as possible, as it may make some alter- ation in my affairs. You mention of the un- certainty of receiving cash or bills for any article from America. I would thank you, in your last to me to mention whether we may place full confidence in their paying me in good bills or cash, agreeable to the contract, for the quantity of ashes specified, as that was my particular orders from Mr. Clason. You have once mentioned it, but your two last let- ters leave it doubtful in my mind. I would thank you to acquaint Mr. Lyle of my pro- ceedings as soon as the bills are obtained. I am only waiting for the bills, and beg you to make all dispatch in your power, and am yours. "(Signed) GIDEON GARDNER." On the seventh of December following, Gardner addressed a letter to Lyle in these terms: " CHERBOURG, 7th December, 1794. " Dear Sir: I received yours of the loth November. I arrived here 4th September, and proceeded to Paris and delivered the cargo on the contract of 53; and as Mr. C. was in advance for the whole,! arranged it for D. S. to have one third, agreeable to the account an- 238*] nexed. They are to settle *with you for one third of what you are entitled to, and Mr.C. to settle with you two thirds, after delivering the cargo, and the receipt presented for pay- ment. There was a suspension of all payments in bills or money. I returned to Paris, and, after a long and tedious detention, I obtained bills on Hamburgh, though not at the rate agreed for. They are for 90 days, and the exchange 185 livres for 100 marks banco; which bills I forwarded by post to Lubert & Dumas, who, I understood, did your business there. I was fearful you were in England, by what I had heard, or I would have sent them to you. My orders to them were, to negotiate the bills and remit the money to B., S. & B., London, on Mr. C.'s account, except there should be appearance of war. In that case, they are to consult you. ( I was cautioned by Mr. C. in respect to that.) I presented a peti- tion for demurrage, &c., to the amount of 1,250 sterl., which has passed two or three offices, which I wish you to press hard for. I sent. two bills by different posts, and wrote you. I have two thirds of a cargo of prize salt on freight; about 400 sterl. freight. It is almost half on board, and am taking in the rest; shall sail in a few days for New York, and expect to return as fast as possible with the remainder of the contract. Swan is gone to America. Mr. C. shipped by Captain S. Armour about two hundred tons Major Con- oily is the supercargo. They have sold to in- dividuals for specie. I have wrote B., S. & B,, since I sent the bills, and also informed them of this other cargo. 239*] * ACCOUNT OP MY CARGO. To the cost in America, as per invoice, - 12,020 4 Insurance, 5 per cent. , - 601 2 12,621 4 2 Interest on do. from 1st July to 1st December, at 6 pr. cent., 315 10 7 My commission, - 1,000 Freight, 1,200 sterl., 2,133 68 New York currency, Is, sterl., 16,070 1 5 3,200 7 10 1,600 3 10 9,039 8 4 COL. AND CAINES. 13,840 Paper money expenses on the cargo was 2,795 livres, 2-3 1-3. BY SALES. Of two hundred and sixty-one tons and 286 lb., at 53 per cwt., - - 13,840 The amount of bills I remitted is, M. Banco, 158,786 10 To this, Delard & Co added, "Approved this account; the assignats to be settled at ten, and Clason obliged to satisfy Lyle for two thirds of his com- mission or gratification. "(Signed) "D. D. S. &Co." In the month of March, 1801, Robert Lyle arrived in New York. Clason refusing to pay the two-thirds of the fifth of the emoluments arising from the contract with the French republic, in April, 1801, Robert brought the present action against him. Shortly after which Clason arrested Robert and John Lyle in the cross suit, for a very considerable sum of money. In December, 1801, both causes were, by order of Court, referred. On the 10th of March following, the attor- ney for Robert Lyle submitted the following proposition to the attorney of Clason: *"As the suit instituted by Mr. Cla- [*24O son against Mr. Lyle does not include any claim for damages arising from the misconduct of the latter, and more particularly for damages like those claimed on the business of the Hare, it would be proper (lest these should be made the subject of a future suit on the part of Mr. Clason, the ground of an objection to the re- port on the part of Mr. Lyle) that all claims and controversies of this nature be included in the submission already made, which, in a legal point of view, extends only to the subject matter in difference in the particular suits referred. "(Signed) THOS. L. OGDEN, for Lyles." To this the attorney of Clason subjoined the following memorandum: "It is understood that the demands for dam- ages above mentioned, and all claims and demands on both sides, founded on contract, express or implied, are submitted." To this addition the attorneys of both parties added their signatures, and the consent of the liti- gants themselves were given in these words: ' ' We agree to the above, and that all the ac- counts, as already exhibited, shall be reported on by the referees in these causes. "(Signed) I. CLASON, " ROBT. LYLE." On the 30th December the deposition of Gardner was taken in behalf of Clason; in 133 240 SUPREME COURT, STATE OF NEW YORK. 1803 which, among other things, Gardner swore 241*] that his letter of instructions con-; tained the only orders that he had from Cla- 1 son; that Delard & Co. informed him of j their contract with the French government, i and he contracted with them; that they in- ' formed him the contract was in Lyle's name, i lie being a neuter; that they informed him Lyle ' was to have a gratification, but what it was, j he, Gardner, never knew; thinking, and being fully assured in his own mind, that it would apply to the benefit of (Mason, Lyle being his salaried agent, which consideration induced him, Gardner, to consent to Clason's being accountable to Lyle for two thirds of the said gratification, which he expected would be paid by the salary at which Lyle was retained. On the 22d of June the referees made their report in both causes, and in each reported in favor of the defendants. On the 20th of July the report in the cross- suit by Clason, was, on motion in court, duly confirmed. Immediately after which, on the 23d of the same mouth, Robert Lyle, in order to set aside the report in favor of Clason, made an affidavit, which stated, that the suit insti- tuted by him in April, 1801, was to recover money had and received by Clason to the de- ponent's use; that it was referred, and at the meeting of the referees, the deponent, as the basis of his claim, did prove, aud make ap- pear, &c. (mentioning the contract and cir- cumstances, and letters detailed in the be- ginning of the case), that the net profits on the sales made by Gardner under the contract, were 4,800 11 8 sterling; that the fifth, to which the deponent was entitled, in pursuance 242*] of the engagements made *with him, was 960 2 4, of which, by an original account of Delard, Swan & Co., produced to the referees, it was proved Delard, Swan & Co. had paid their one third, according to the agreement with Gardner; but no payment was shown, or pretended to have been made of the other two thirds of the fifth, nor was there be- fore the referees any set-off or counter claim established against the defendant; that the deposition of Gardner (before shortly stated) was shown to the referees, and Gardner him- self personally examined; that he then testi- fied he was, previously to his departure from America, with the sa'id cargo, per the ship called the Joseph, made acquainted with the existence of the said contract, by the defend- ant, and with the terms or price therein stipu- lated; that he did not consider himself bound by the instructions of the defendant, to de- liver his cargo under the contract, nor restrict- ed from doing so, but at liberty to act accord- ing to his discretion; that his* motives for in- quiring from Delard & Co. respecting the re- liance to be placed on punctual payment, and also for alleging this to be done at the desire of the defendant, was to hold out the idefc of future shipments, and so insure the payment of what had been delivered, but not settled for; that it was made to appear without any denial, that the defendant had only received his two thirds of the profit on the contract aforesaid; that the report had, notwithstand- ing, been made in favor of the defendant, under an idea that Gardner had no authority to bind Clason to the payment of anything to 134 the deponent; and that Clason had altered the deposition of Gardner, after it was made, and before presented to the referees, without com- municating the alteration to them. *On the 6th of October, 1802, Clason [*243 made an affidavit to vacate the report in favor of the Lyles, in which he set forth the insti- tuting the two suits; their being referred; the reports made in favor of the respective de- fendants, and that they were duly filed, on the first day of July Term last past, so that judgment would, according to the usual course of the court, be absolute, the then term; that the reports, according to his in- formation and belief, were drawn up by agreement between the counsel in both suits, that each should draw the report in favor of his own client; that the deponent's attorney was, on the 23d of July last, served with a copy of an affidavit, accompanied with a notice of moving upon it to set aside the re- port in favor of the deponent; that the mat- ters contained in the affidavit, went to the merits of the case, respecting which, on ac- count of sickness in the deponent's family, and absence from New York, the deponent could not make any explanations to his coun- sel; that he acquiesced in the report against himself, from a conviction nothing could be obtained from Lyle, and, therefore, no report could operate more favorably to the interest of the defendant; that the known inability of Lyle to pay, was one reason why the referees were less particular in examining the de- ponent's claims against him, than they other- wise would have been, deeming it unim- portant; that the whole reports were made, and intended by the referees as set-offs the one agains-t the other, and to this end, they in- structed counsel to prepare them accordingly; that, among other charges against Lyle. the deponent gave in evidence, an account ren- dered by Lyle, in which he acknowledged having in his hands a balance of 244,246 livres in assignats, *amounting, at the [*244 then rate of exchange, -to 4,477 dollars, and that assignats were then never kept on hand, but always converted into property, to avoid depreciation; that since the account so ren- dered, the deponent never had any further money or mercantile transactions with the Lyles, and that Lyle neither accounted for, nor made any set-off against the said assignats. but the same were totally unaccounted for; that the deponent, as soon* as the sickness of his family permitted, consulted respecting measures to be taken about opposing the mo- tion, to set aside the report in his favor, but there was not time enough left in the term to do it; that but for the application of Lyle to set aside the report in favor of the defendant, he should never have applied to set aside that in favor of Lyle, for the insolvency of Lyle made it of no consequence. The notice of motion with which this affi- davit was accompanied, was repeated on the 7th of January, 1803. To oppose this, Robert Lyle made, on the 14th of January, 1803, an affidavit, stating, that he, and his brother John, the other de- fendant, acted, in the j'ear 1795, as agents for Clason, in which capacity they had received various large sums of money, the whole of COL. AND CAINEB. 1803 ROBERT LYLE v. ISAAC CLASON, AND ISAAC CLASON v. ROBEKT AND JOHN LYLE. 244 which had been faithfully accounted for; that the suit against C'lason was for money due in- dividually to the defendants, on another con- cern, and for damages for libelous letters and slanders published against him by Clason; that he and his brother were arrested, as be- fore mentioned, and the two causes referred; that in the suit against the deponent and his 1245*] brother (the declaration on which was for goods sold with the usual money counts only) Clason produced an account with charges, against the deponent and his brother, for breach of orders and neglect of duty, to a very large amount; that on asking for some evidence, by which it might appear, those charges were included in the submission, the agreement of the 10th March, 1802, was pro- duced; that the same was intended merely to extend the powers of the referees to claims of the nature of those mentioned in, and warrant- ed by, the declarations to which the deponent had confined himself; that his and his broth- er's faithful agency, and due accounting for all sums of money, were fully proved; that in the cross-suit against the deponent' and his brother, the referees made their report on a conviction nothing was due to Clason, and not from any regard to the deponent's insol- vency or circumstances, as he was, by the referees themselves, personally informed; that the deponent proved, to the satisfaction of the referees, that the value of the assignats men- tioned in Clason's affidavit, was, at the time specified, only 278 2 9, and not $4,477; that they were not then usually converted into property, but held by many persons in hopes of their rising, and that the said assignats were not only not made use of by the de- ponent, or kept in his hands, but had, from the time of their first reception, been paid over by him to the correspondents of Clason, Lub- bert, Freres & Ellis, of Bordeaux, by whom they were converted into specie, for the use of Clason, and accounted for with Gardner, when acting as Clason's agent; that, so far J24G*J from the acquiescence of *Clason in the report against him, for the reasons he had aligned, he had, after it was made, pur- chased protested bills, on which the deponent's name was as an indorser, and had commenced suits against the deponent upon them, in or- der, as he believed, to create a set-off against the verdict the deponent might untimately ob- tain. After some struggle by Mr. Hamilton, on the part of Lyle, to discriminate the two suits, the court was pleased to order the arguments to set aside the several reports to come on to- gether. Mr. Hamilton, for Lyle, after stating the cir- cumstances, and commenting on them, and the affidavits of Clason and Gardner, observed, that it was very singular Gardner, without any knowledge of the contract of Delard, Swan & Co. with the French republic, or of Lyle's intent, should deliver exactly under that contract, and write a letter, acknowledg- ing the very interest Lyle claimed under it, and that Clason should pay him what he was thus entitled to. Gardner, without knowing the contract, goes further; he asks Delard & Co. if the French government will be punctual in paying, and this, he adds, Clason desired COL. AND CAINES. him to inquire about. Clason, too, ratifies the engagement of Delard & Co. and Gardner, with Lyle, by adjusting the account with Delard & Co. and receiving under that ac- count the two thirds, by the very express terms of it, charged with the payment of the two thirds of Lyle's fifth. To argue on the assertions of Gardner, would be really super- | fluous. The referees must have thought Gardner had no right to bind Clason. This idea is clearly repugnant *to every [*247 principle of law. He that entrusts another with general power;-, must abide the result of his agent's conduct. Therefore, though the report in favor of Lyle may and ought to stand, that in favor of Clason ought to be set aside. Messrs. Hopkinnund Trmip, contra. In making the reports in these causes, the referees were ac- tuated by a wish to make the parties even and leave them just as they were found. For this purpose the report in our cause was in- tended as a set-off to the other, and to ef- fect this object, the counsel were desired to frame the reports in such a manner as might best obtain the desired end. The various facts appear in the affidavits before the court; but it is material to state, that the party who first made the application to disturb these reports, has not presented any original agreement on which his suit is founded. Delard, Swan & Co. made a contract with the French govern- ment, for a certain quantity of pot and pearl- ashes; as these articles enter into the composi- tion of gunpowder, it was necessary to have a neutral name in the business. It is difficult to say what ought to be the true relative com- pensation for the protection a neutral charac- ter would afford; but it is to be observed, that Delard & Co. were the real contractors; Lyle a mere nominis umbra: for this, however, he says he is to have one full fifth, one third of it to be paid by Delard, Swan& Co., the other two thirds by Clason. These terms, it is alleged, were stipiilated by a formal contract, yet this contract, which Lyle must have had, is never produced; on the contrary, instead of relying upon it, he rests on a letter received from Gardner. In addition to the inference to be *drawn from this fact, it appears f*248 that at the very time when this pretended contract was made, Lyle was in Europe, under an annual allowance from Clason, and ac- tually his salaried agent, receiving wages for every service performed. A doubt has been entertained, how far the court can, under the existing circumstances, with propriety set aside the report in favour of Clason: but, surely, whenever they clearly preceive that the referees have proceeded on a mistake, either of law or fact, this tribunal will always interfere. If the court will set aside an award, they will on the same principles vacate a re- port; and, whatever argument will induce them to do it in one of the now causes, will have equal force in the other; for if the refer- ees have been mistaken in their endeavors to create mutual set-offs, both reports will be set aside; or, on the other hand, if they have acted properly, both will be confirmed; for the court will not, unnecessarily, do away what the referees have done. In making their de termination, they considered that the power to 135 248 SUPREME COURT, STATE OF NEW YORK. 1803 sell, and the power to give away profits, were two things; to this latter, it cannot be con- tended, that the authority of an agent or a fac- tor can extend. There is no question about an agent's right over the property passed to him, but he cannot enter into collateral engage- ments; he may sell and warrant a title; but not give away the property. If he may, in any degree, do this, he may go on indefinitely, and make away with the whole. He may go on making contracts ruinous to his employer, and contrary to the purposes of his delegation. Under a power to sell, if he should be allowed even to exchange, can he be authorized to pay a difference? The boundary of his power to 249*] bind, must *be connected with that of his authority to sell; it must be confined to that, and will not warrant him to give away profits; to pay another sum of money on an- other account than that of the sale. The point turns on whether Gardner had a competent authority to bind Clason, to pay two thirds of a fifth of the profits. It was derived from the letter of instructions. That letter delegates only a general power. From the exercise of such a power, the claim cannot be supposed. That a factor may sell by a broker, and give a commission, if customary, is not contested; but it is contested, that a factor or agent, hav- ing only a general authority to sell, can give away a substantive part of the merchandise when it was sold; that he can do so, there is not a dictum in the books. It would be, in fact, to enable him to dispose of a portion of the property he is entrusted to vend. It would give rise to the most serious consequences; a fraudulent collusion would completely destroy the interests of the principal, by enabling to constitute a sale regular in its form, the pre- cise mode of which could not be easily for- seen. The intention of Clason's agent must be taken into consideration, and the motives on which he proceeded permitted to explain how he meant to bind his principal. Gard- ner never knew what the gratification to be paid Lyle actually was. The inducement he had to consent to any, was, that he deemed the amount immaterial; for as Lyle was in the service of Clason, at a fixed salary, Gard- ner naturally concluded all Lyle's labour would accrue to Clason. On the principles of natural justice, the demand cannot be substan- tiated. He lends his name to Delard, it be- 25O*] ing necessary to make use of a *neuter. The douceur must certainly be according to the situation of the party. The letter to Clason, containing the terms of the contract, does not state the sum to be paid. It is obvious, there- fore, that this was never intended. It was considered as too trifling to specify. Gardner knew when he left America, that Lyle was a salaried agent. This is not a case or good faith between an agent and a person totally a stranger, and, therefore, the princi- pal called on to pay; but we are called upon, on the strength of a little memorandum touched into the foot of an account. It is not to be forgotten that the referees were mer- chants, and well knew the course of trade and business, when the transaction took place, as well as the rights of an agent at a fixed annual allowance. The claim, too, goes by the ex- press name of a gratification; and who ever 186 heard of a partnership share (which this in fact is) ever being known by the appellation of a gratification? When was 600 sterling ever considered as a gratification for a person at a salary of 150 per annum, New York cur- rency? The referees might, therefore, have justly ejected the claim. No inference can be drawn from Gardner's letter, speaking of a contract: he might have sailed on another. But it was not the mere matter of the contract that was referred; subsequent matters were added, not included in the two causes: this was by agreement of the parties, and how can the court say the full claim on the contract has not been allowed, when it might have been counterbalanced by damages and misconduct in the matter of the Hare? This, therefore, being an application to the equitable jurisdic- tion of the *court, they will so mould [*2o 1 and blend the two causes as will best an- swei the ends of justice; and, if in the suit by Lyle the report be set aside, the court will do it on terms, and vacate the report in that against him. Clason declares he never heard what Lyle's compensation was, till after the suit was brought. But can the court say this particu- lar claim onght not to be disallowed? After the rules to refer, other matters were added and blended; all contracts, "express or im- plied/' were submitted. It cannot be said there were not other claims to extinguish this demand of two-thirds of the fifth. It might have been admitted, and liquidated by a counter claim. Referees and arbitrators may so consider the subject matter before them, a*s will best answer the ends of justice; they may take into view matters both of law and of fact; perform the offices of judges and jurors, and are entitled to found their decision either on law, or principles of general equity. The whole of this was delegated to them, and they have determined, on a view of all matters in controversy blended together in one mass, all the objects in these two causes, even in that against both the Lyles, as consolidated before them. Whether they have been perfectly ac- curate in thus beholding them, is immaterial, if they did so consider them, have acted under that idea, and have attained the real ends of justice, though, perhaps, by extraordinary means. It was evidently the wish of the par- ties to set all controversies between them fully at rest, and this has been accomplished. The court, therefore, will never say that on ere- port shall be confirmed, and the other set asid. The consideration *of the report [*252 in the suit by Clason might have influenced in the making up that in the action against, him. That it did so is evident, because the reports were intended as mutual set-offs. Whether this could be supported on strict legal reasoning, had been doubted; but the spirit of the case in 8 D. & E. might, perhaps, fully warrant the conduct of the referees. It may be a question, also, how far Gardner could give such an interest, as might, perhaps, create a partnership between Lyle and Clason. Messrs. Harrison and Hamilton, in reply. If ,in cases of full and fair investigati9n before juries, this court will interpose, when a ver- dict has been rendered on an evident mistake of the law, they certainly will do so in the COL. AND CAINES. 1803 ROBERT LYLE v. ISAAC CLASON, AND ISAAC CLASON v. ROBERT AND JOHN LYLE. 252 case of a report made by referees, however appointed. That this reasoning applies to the suit of LyU v. Clason is manifest, and it will, therefore, be sent for further examina- tion. With respect to the contract made be- tween Lyle and Gardner, the agent of Clason, it is for the court to determine whether it be obligatory or not. The affidavits on the part of Clason do not state that he was ignorant of the contract with the French government, but of the claim of Lyle. It appears from Lyle's deposition, and is not controverted, that in March, 1794, letters were written by Lyle and Swan, informing Clason of the contract ; of Lyle's right, and that he (Clason) might share, if he thought proper. The letters were pro- duced, and that they were recieved, Clason's conscience would not let him negative. There was a stipulation to compensate, with a share of the actual profits, for the use of the neutral name of Lyle ; when these profits were ascer- 253*] tained, the right of Lyle attached.* There is, to be sure, no express recognition by Clason of the contract, but in the September following the date of Lyle's letter, Gardner arrives in France with exactly such a cargo as the contract demanded. Are there not cir- cumstances enough to think he went there for the purpose of acting under it ? But even allowing there are not, does not the letter of instructions substitute Gardner as owner of the property he carried, and invest him with all Clason's power over it ? He is to exercise his judgment ; do his best ; sell for French brandy; sell to the French government, &c., he had, therefore, a right to make any con- tract under the words of the letter. He ar- rives in France with a power to dispose; he finds Delard possessed of a contract, in the name of Lyle, under which the power to dis- pose may be exercised with great advantage. He does exercise it, receives the emolument, settles with Delard & Co. , but refuses to do so with us. The inquiry then is, had Gardner a power, and has he exercised it '( That he had and has, no doubt can be entertained ; and as little that it was under our contract ; for the affidavit susequently made by Gardner, does not deny, but admits the fact. He says, how- ever, that he knew not what the gratification was ; this is extraordinary ; he seems to have forgotten his own letter after a very few months ; and though that does not specify the exact sum, the two thirds for which he men- tions Clason is to settle it affords an internal evidence that he did know it, much stronger than his own assertion to the contrary. Gard- ner's letter of the 7th December, 1794, partic- ularizes two thirds, and gives and account of the sales. Allowing, however, Gardner not to be 254*] appraised of the *exact sum, as Lyle's right was ascertained and perfected under the contract to which Gardner consented, acced- ing to the payment of two thirds by Clason, it follows Clason must be bound. The rule is, that he who places confidence shall suffer by the abuse of that confidence.; Clason, there- fore, and not Lyle, is to be the loser by Gard- ner's actions. It is extraordinary that Clason should have remained ignorant of the amount of Lyle's claim four years after Gardner's re- turn and rendering an account of his transac- tion. If Gardner then, having an authority COL. AND CAINES. to bind Clason, did so, and Clason has re- ceived the benefit of that transaction, Lyle's right is perfect. The assertion of his being a salaried agent does not affect the claim. His time of service expired in September. Be- yond that Clason himself allows no salary, and Gardner's letter is dated in December. Gardner himself ackowledges Lyle's right, by telling Delard to pay one third of it. Had it been otherwise, Gardner would have said, you are not to pay the third of the fifth to Lyle, but to Clason, for whose benefit Lyle is act- ing. There is a further proof in the letter to Lyle. Gardner there says, "Mr. Clason is to settle with you for two thirds." Here then is a clear established right in Lyle to receive from Clason two thirds of the fifth of the whole profits. If . so, the arbitrators have been guilty of a mistake, in point of law, in considering Gardner unauthorized to bind Clason, and this the court will assuredly set right. There is also another ground on which they have clearly erred ; for if they have blended the reports in the two causes, or made one enter into the composition of the other, they are manifestly wrong. The is no evi- idince of anything *against Lyle's [*255 right, but the demands in the cause against him and his brother. Though both causes were referred, the referees have not any right to blend matter extraneous to the respective suit. Robert Lyle's action is for his own sep- arate account. That of Clason against Robert and John Lyle, is against the partnership, and the one cannot be set off against the other, being in different rights. This is very wide from the case of a surviving partner, where the rights and duties center in one person. The agreement does not alter this, for it was merely to allow of such matters as were admissible against the same parties, though not specifi- cally proceeded for ; to settle all disputes for which actions might be instituted against the respective defendants ; to allow of damages arising from breach of contracts, express or implied, by the Lyle's, to be settled under the reference of the suit against them, in which counts were used not applicable to actions of damages, but never to permit one suit to be set off against the other, or make Robert Lyle give up the benefit of his claim against Clason. They did not even take it into consideration, as they considered it not due ; the report, therefore, in favor of Robert and John Lyle, may well be suffered to remain, and that in favor of Clason be set aside ; for the amount of the profits claimed from him not being taken into consideration in the accounts by the referees, now remain unsettled. If, there- fore, without including this demand, Clason has not any demand against Robert and John Lyle, the report does not prevent Robert from having a demand against Clason. Besides, it is evident the contract must have been known to Clason and Gardner, by the latter's ex- pressing *an intention of returning [*256 with the residue. The not mentioning it in the letter of instructions, was to avoid the risk of capture and condemnation ; fates that were sure to attend a cargo of a contraband nature, going under an avowed contract with the French government. The receipt by Clason, of the proceeds of the cargo, is a rati- 137 256 SUPREME COURT, STATE OF NEW YORK. 1803 fication of every contract under which it was made, and no disavowel of Gardner's au- thority can be permitted. Clason enjoys the benefit, and if any charges do accompany the agreement, it is to be taken cum onere. The allowance of the account by Delard, Swan & Co., is conclusive on the terms. LEWIS, C. J., delivered the judgment of the court. These actions were referred under rules of court to three referees, who have re- ported in each against the respective plaint- ill's, declaring nothing due on either side. Motions are now made to set aside the several awards. In the first cause, in which Lyle is plaintiff, the application is founded on a presumption that the referees have been mistaken on a point of law. That they have either rejected a contract entered into by the defendant's ship-master and consignee, as not obligatory on his principal, or have set off the balances found for the plaintiffs, in the respective causes against each other. To this the defendant answers, that he was not bound by the engagemt of his ship-master, who was also his consignee, and that if the 257*] referees have *made such off set, they were justified on principles of law, and by an agreement entered into between the re- spective atorneys. As far as the facts can be collected from affidavits and documents furnished the court, they are these: That the Lyles being engaged in business in France, were charged with some commercial concerns of Clason, on which he claims a balance of account, and on which they deny anything to be due. That Robert Lyle, while in France, was employed by the house of Delard, Swan & Co., there established in business, to negotiate a contract for the supply of certain quantities of pot and pearl-ashes to the French government, which he affected, and for which they were to allow him one fifth of the profits. That the com- pany, as well as Robert Lyle, wrote to Mr. Clason in March, 1794, acquainting him with their contract, and proposing to him to make shipments thereon. That in September a ves- sel called the Joseph, belonging to the plaint- iff, arrived in France loaded with ashes, con- signed to Gideon Gardner, the master, who had general instructions to sell to the govern- ment, or to inviduals, at his election. That Gardner, after making inquiries as to the gov- ernment's punctuality, agrees with Delard, Swan & Co., to turn in his cargo under their contract, which is accordingly done, and nets a profit of 6,800 11 8 sterling; whereof Clason receives two thirds in consideration of his having made the advances, and the house of Delard, Swan & Co. one third. On the ad- justment of this account, it appears that the company and Clason were to account to Rob- 258*] ert Lyle for his one fifth, according *to the proportions of profits by them respectively received. Captain Gardner's powers being discretion- ary, he was perfectly justifiable in making the disposition he did of the cargo entrusted to him, and even if he was not, it does not appear that Mr. Clason ever denied that transaction his sanction, but that on the contrary, he has 188 received by remittances to Bird, Savage & Bird, of London, the proceeds of the cargo, including his proportion of the profits. Under these circumstances, there can be no doubt that Captain Gardner, having turned in his cargo under the contract, bound Mr. Clason to the fulfillment of the terms of that contract; and the latter, having received the full two thirds of the profits of the adventure, under the stip- ulation made by his agent, that he should ac- count to Lyle for two thirds of his douceur, or whatever else it may be called (for names will not alter the essential quality of the thing), he is bound to perform such stipulation. If, therefore, the referees have not admitted this claim, they have erred as to the law, and the award ought to be set aside. If, on the contrary, they have admitted it, then they must have allowed a balance found due to Clasou in the other suit, as a set- off against it. This also is incorrect; for the suits are not between the same parties, and the partnership funds should have been first appro- priated to the discharge of the partnership debts. The agreement between the attorneys does not authorize such set-off. Its only ob- ject, is the *admission of certain de- [*25J> mands which would not fall within any of the courts in the respective declarations, in order to avoid further litigation. The award, therefore, in each suit, ought, in my opinion, to be set aside. The one against Clason, for the reasons above mentioned, and the one in which he is plaintiff, because there is a probability that the referees found a bal- ance there due to him, which he would other- wise lose the benefit of. The judgment of the court is, that both awards be set aside. ROBERT M. BRETT and JOHN BUNN MATHEW HOOD. Stay of Proceedings Motion to Set Aside No Appearance Costs. TUIE plaintiffs had in the last term recovered .L a verdict against the defendant, who, on making a case, had obtained the usual certifi- cate to stay proceedings; to set aside which, the plaintiffs gave notice of a motion, but not attending to argue it, Mr. Caines, forthedefendant.onthelastdayof term, applied for costs, which the court was pleased to order. N. B. It was during this term intimated by the bench, that they would not hear any argu- ment to set aside a judge's certificate to stay proceedings on a case made. *RATHBONE v. BLACKFORD. [*26O Notice Service on Person in Attorney's Office Sufficiency. THE service of a notice in this cause was stated in the affidavit to have been on a person in the office of the attorney, COL. AND CAINES. 1803 PAKKMAN v. SHERMAN. 260 Per Curiam. It is not sufficient. There does not appear to be any relation between the party served and the attorney. The notice might have been given to a mere stranger. A connection ought, therefore, to have been stated, so that the com-t might be convinced of a priv- ity between the party to whom the notice is delivered, and the attorney on whom it is meant to take effect. PAKKMAN v. SHERMAN. Notice Affidavit Parties Reversed. Distinguished Ryers v. Miller, Col. and Caines Cas., 185. IN this cause the court determined, that when both notice and affidavit are wrong titled by reversing the parties and putting the de- fendant in the place of the plaintiff, the error is fatal; and this case was distinguished from that of Ryers v. Hillyer (ante, p. 185), because there, though the parties were reversed in the title of the notice, yet in that of the affidavit they were rightly named; so that, independent of the object of the notice in that suit, there was a proper title to rectify the mistake, but in this, where in every paper the action was, as if by the defendant against the plaintiff, there was not anything by which the mistake could be cleared up, and the notice might, therefore, be in a cross-suit, where the parties actually were reversed. 261*] *JOHN MIL WARD v. RICHARD S. HALLETT. Amendment Of Cases Proper Form. rPHE plaintiff had recovered a verdict against .L the defendant, on whose part a case had been made, and a copy served on the attorney of the plaintiff. Many inaccuracies being ob- served in it, a full statement was drawn up on the part of the plaintiff, and served on the de- fendant's attorney, who, on receipt of it, ob- jected to the informality of thus making a new case. The usual time for objecting to the amendments having elapsed, the attorney of the plaintiff gave notice of argument, set the cause down for hearing, and served copies of the cases he had drawn up. Mr. Caines, on an affidavit, to which was an- nexed a copy of the altered case, made on the part of the plaintiff, and also a copy of the service of notice, moved to bring on the argument, or that the plaintiff have leave to enter up his judgment. Mr. Benson, contra, resisted the application, contending that the case now before the court was a new, and not an amended case. That the rule allowing amendments to be proposed, did not authori/e making an entire new case, like that on which it was wished to proceed. Mr. Caines, in reply, hoped the court would not harken to a distinction which really did not COL. AND CAINES. seem to have any solidity. Every case differ- ing from that first served, was, in fact, an altered, or amended case. The objection re- solved itself into this, that every amendment must be written on the same piece of paper *which held the case served. If so, [*2G2 close lines, narrow margins, and great omis- sions, would render every case superior to amendment, and totally exclude all, that the party who made it, might please to reject. It was, however, conceived, every variation no- ticed, though on a separate piece of paper, was as much an amendment, as if the diversity had been marked on the paper containing the case originally made. Per Curiam. Every amendment must be on the case made, or refer to the line and page in which it is proposed to be inserted. This, not because it is less an amendment when written on a separate piece of paper, but in order to inform the judge before whom the cause was tried, where to direct his attention, in case the facts should be disputed, and not reduce him to the necessity of reading over and comparing two cases: The plaintiff can take nothing by his motion. NICHOL AND THOMSON . THE COLUMBIAN INSURANCE COM- PANY OF NEW YORK. Commission Second Commission to Same Wit- ness as to Fact Disclosed. T?MOTT moved for a second commission in J-J this cause, to re-examine the same wit- nesses to a particular fact disclosed, and from which, as the answers then stood, it might be supposed a deviation had been made, to which point the former investigation was not directed. Mr. Benson, contra. It is now too late; there was never an instance of a second commission to examine the same witnesses. The answer shows the defense *that arises on the [*263 return, and this is an attempt to do it away. Mr. Emott, in reply. The application may be novel, but it is not unreasonable. Suppose the witness had been examined in court, and had testified to a certain fact, which, taken without any explanation, would have one effect, if ex- plained, another, might not a question be asked to explain, especially when it comes out col- laterally? Here the deviation was not the ob- ject of inquiry. The question was simply to and from what places were you bound? There may be an apparent, though not a real devia- tion; for there might be a custom to go that route. Per Curiam. Take your commission. The answer being directed to another point, maybe explained by an interrogatory to the one w T hich it discloses; for it may assign very sufficient reasons for the Her adopted. The commission, however, must be at the peril of the party. 189 264 SUPREME COURT, STATE OF NEW YORK. 1803 264*] 'NOVEMBER TERM, 1803. THE PRESIDENT, DIRECTORS AND COMPANY OF THE UNION TURN- PIKE ROAD v, THOMAS JENKINS. THE SAME v. THE SAME, in three other actions. 1. Corporation Subscription Validity. 2. Idem Idem Notice of Stock taken. 3. Idem Idem Sufficient caUs for Installments. 4. Amendment Pleading Uncertain and Con- tingent Payment Special Agreement. BY an Act of the 3d of April, 1801 (Oh. 118), certain persons were incorporated, for the purpose of improving the road from New Leb- anon to Hudson, under the name of ' ' The President, Directors, and Company of the Union Turnpike Road." By the second section of the act, it is ordered, ' ' that Robert Jenkins and Elisha AVilliams be, and they are hereby appointed commissioners, to do and perform the several duties hereafter mentioned: that is to say, they shall, on or be- fore the first day of May next, procure two books, and in each of them enter as follows : We, whose names are hereunto subscribed, do, for ourselves, and our legal representatives, prom- ise to pay, to the President, Directors, and Company of the Union Turnpike Road, twenty- five dollars, for every share of stock in the said company, set opposite to our respective names, in such manner and proportion as shall be determined by the said President, Directors, and Company; and every subscriber shall, at the time of subscribing, pay unto either of the said commissioners, the sum of ten dollars, for each share so subscribed; and the said commis- 265*] sioners, shall, *as soon as one thousand shares have been subscribed, cause an adver- tisement to be inserted in the public newspaper, printed in Hudson, giving at least ten days no- tice of the time and place the said subscribers shall meet, for the purpose of choosing five di- rectors, who shall be stockholders, for the pur- pose of managing the concerns of the said Company, for one year; and the day of choos- ing the said directors, shall, thereafter, be the anniversary day of choosing directors; and the directors elected by the votes of the stockhold- ers, shall immediately proceed to the choice of one of their members for President; and the said President and Directors shall and may meet from time to time, at such time and place as they may by their by-laws direct, and shall have power to make such by-laws, rules, orders and regulations, not inconsistent with the Con- stitution of this or the United States, as shall be necessary for the well ordering of the affairs of the said corporation: Provided, that, at the election of the directors, every person shall have a number of votes equal to the number of shares owned by such person, if such number 140 shall not exceed fifty, and one vote for every three shares owned by such person exceeding fifty." By the last section, it is enacted, "That it shall be lawful for the said directors, to call for, and demand, of and from the stockhold- ers respectively, all such sums of money by them subscribed, or to be subscribed, at such times and in such proportions, as they shall see fit, under pain of forfeiture of their shares, and of all previous payments *made [*266 thereon, to the said President, Directors and Company. The defendant had subscribed for 280 shares, but, at the period of writing his name in the book, as directed by the first section, the $10 therein ordained to be, at that time paid, were neither so paid, nor were demand- ed. Two orders for paying in $5 on each share subscribed were made, with which the defendant refused to comply, and for their amount the present actions were brought. The first count in the declaration stated the passing of the act and incorporating the com- pany. It also set forth the second section, omitting, however, that part requiring the payment of the $10 on each share at the time of subscription; it went on averring the com- pliance with the requisites of that section, the subscription of the defendant, and of 2,900 shares; it stated the election of a president and directors, and two orders made by them for payment of two installments, of $5 cash, on each share subscribed, notice, and by rea- son whereof, &c. The second count was in these words, "And whereas, also, the said Thomas Jenkins, on the seventh day of April, 1801, at the city of Albany, in the county of Albany, made his certain prommissory note in writing, by him, in his own proper handwriting subscribed, the date whereof, is on the same day and year aforesaid; whereby the said Thomas prom-* ised for himself, and his legal representatives, to pay to the President, Directors and Company of the Union Turnpike Road, the sum of $25 for every share of stock set opposite to *his name, in such manner and propor-[*267 tion, and at such time and place, as should be determined by the said president, directors and company, and the said Thomas did then and there set opposite to his name, fifty shares," with an averment of their determining that he should pay $5 on each, on the 10th of September, then next, with notice, liability and assumption. The third count was in the same form on a promissory note, for 230 shares. The causes were tried at the Albany cir- cuit, in January last, and general verdicts found for the plaintiffs. After this, the defendant gave notice of moving in arrest of judgment, and assigned the following reasons: 1st. That the first counts in the declara- tions in the said causes, being founded upon the statute, do not set forth that the said de- fendant at the time of subscribing the said subscription, paid to the said commissioners the $10 on each share, by him subscribed, ac- cording to the regulations of the said act, and that it appears by the said counts, that the commissioners therein named, did not, as soon COL. AND CAINES. 1803 THE PRESIDENT, &c., OF THE UNION TURNPIKE KOAD v. THOMAS JENKINS. 267 as one thousand shares were subscribed, in the manner directed by the said act, proceed to give the notice by the said act required, for the purpose of choosing directors, and that no order and determination of the president, di- rectors and company, in the said declarations mentioned, is stated in the said first counts, 268*] *for the payment of any money upon the shares of stock, therein mentioned to have been subscribed; so that the defendant never became liable to pay any such money, and 'that the promises in the said first counts stated, are void for want of consideration. 3d. That the second and third counts, in the declarations in the said causes, are founded, on agreements or promises in writing between the parties, as on a note of hand, which is not within the statute, &c., and that the said counts do not set forth any good or valid con- sideration, upon which the said agreements in writing were made and given. Immediately after service of notice of the above reasons, in arrest of judgment, on an affidavit stating that the evidence offered at the trial was under the first counts in the declarations, and calculated to support them in particular (the second and third counts not being read to the jury, nor referred to by the counsel) the plaintiffs gave notice of a motion to amend the verdicts in the several suits from the judge's notes, so as to make them apply only to the first counts in the several declarations, and to enter verdicts on the second and third counts for the defendant, and to amend the postea and rules for judg- ment entered thereon, in conformity to such order as the court might make. Mr. Champlin, for the defendant. The first ob- jection is, that the $10, ordered by the act to be paid, was not so done. The contract then, on which the action is founded, is not according to the order of the statute. In the next place, 269*] the orders stated by the *declaration to have been made for payment of the sums de- manded, are not in pursuance of the law. By that, the order is to be by the president, di- rectors and company; the declaration sets forth one, by the president and directors only. This is fatal, for as the plaintiffs have a par- ticular authority, they ought to show a strict literal compliance with the law by which they are authorized. If they have a right to omit the company in their orders, they may the directors, and so the president alone may govern the affairs of the corporation. The two last counts are plainly bad: they are on promissory notes, under the statute, where those notes appear to depend on a contin- gency. The declarations, therefore, on them cannot be maintained. Carlos v. Faneourt (5 D. & E. 482). For a note on a contingency is not a note within the statute. Not that such a note cannot be declared on, but then it must be as a special agreement, and the considera- tion set out. As to the notice to amend, it is before the court; they, perhaps, will not be disposed to allow it. We object, however, that the application is too late, because a term has intervened, and the evidence which was given in one count would equally apply to all. Yet, if we are wrong in this, if the court should give leave to amend, they will not do it without ordering at the same time a new COL. AND CAINES. trial. Tomlinmm v. Blacksmith (7 D & E 132). > * Messrs. Williams &i\& Van Ness, con- [*27O tra. The application on the part of the defendant, is to amend the verdict from the notes of the judge, so as to apply the evidence to the first count only, and to enter verdicts for the defend- ant on the second and third. It is evident that the testimony could have gone only to the first, for the two last are stated simply as contracts, though the form be somewhat like that on a note of hand. They were engagements to an organized company, and it was only in relation to that company, that they were taken; they must, therefore, comport with the defendant's liability to that company, under the first count. When a general verdict is given, it is almost of course to amend, if that verdict does not correspond with the judges notes. (3 D.& E., 659. ) 2 So in Eddowes v. Hopkins (Doug., 376. See also, Williams v. Breedon, 1 Bos. & Pul. , 329), it was ruled, that if the evidence be only on a good or consistent count, and there be others bad in point of law, a general ver- dict given on the whole declaration, shall be amended according to the judge's notes. Even in a criminal case it has been done, and the criminal executed according to the amend- ment. (Grant v. Astle, Doug., 370.) In slander, it is true, where some counts are for words not actionable, and others for words actionable, on a general verdict, judgment will be arrested, but even then the court will order a venire de now to assess *damages on [*2 7 1 the good count. An application like the pre- sent is never too late. In 1 D & E., 3 it is said an amendment will be ordered even after error brought, and the record sent back from the exchequer chamber. The same principle is found in Taylor v. Whitehead (Doug., 746). 4 If we are successful on the point of an amend- ment, all objections taken to the second and third counts are at an end. But even should these be objected to, we contend they are good. The instrument declared on is an en- gagement in writing by which the defendant promised to pay. The being a note in writing is enough, and purports a consideration 1. In that case, the amendment was by altering' the verdict from a small to a larger sum; which amendment was moved for, on the face of the de- claration. The court said, in fact we cannot load the defendant with more than the jury of his coun- try has determined, without sending him back to another jury. 2. Petrie v. Harnay. There were two issues in that case, the verdict was on one, and no notice taken of the other, the amendment was allowed after error brought, and this assigned as a cause, on payment of costs. 3. Green v. Rennet, 783, per Buller J. But that case does not apply to amendments of verdicts. It relates to amending mistakes by the act of the clerk where there is something to amend by. As if he enter against an executor, judgment de bonis proprite, instead of de bonis test-atoris. 4. The decision referred to, is very different. A verdict had been found for the defendant : a motion for a new trial on account of the verdict's being against evidence had been denied, after which the plaintiff obtained a rule to show cause why he should not be allowed to enter up judgment on that issue, because, notwithstanding the finding of the jury, the point of law was in favour of the de- fendant. The court said this being a motion in the nature of one for an arrest of judgment, was never too late before judgment entered up. 141 271 SUPREME COURT, STATE OF NEW YORK. 1803 though none be stated. (2 Black. Comm.,446; PiUans v. Van Mierop, 3 Burr., 1670. ) l 272*1 *KENT, /. That doctrine has been completely overruled in a case where Skyuner, Baron, delivered in the House of Lords the unanimous opinion of the twelve judges. Mr. Caines, Amicus curia. Harm \. Hughe* 7D. &E., 350. 273*] * Van New. A written contract with- out consideration may be declared on as it is. LEWIS, C. J. This court has decided that a contract merely in writing, does not supersede the necessity of a consideration. Mr. Williams. That the contract was not con- summated by payment of the $10 required by the act, is also urged as a reason why the ac- tion cannot be maintained, but surely the com- missioners might have dispensed with this. As to the objection that the promise was given to pay such sum as the President, Directors and Company should order; and that the order was only by the President and Directors, it can hardly be thought the defendant ever hoped to rely upon it. The President and Directors are the agents of the company, duly chosen by them physically and legally to express their will. The order made by the President and Directors, is an order made by the Company. This follows necessarily, for the President and Directors are, by the words of the law, to act 274*] for *and to manage the concerns of the company. When they were chosen the powers of the company were transferred to them, and and this being under the letter of the statute, they were the only persons to make the order. Had it been complied with the defendant would never again have been called upon for anything paid under it. Mr. IIarrison,m reply. In support of the notice in arrest of judgment, nothing can be more clear, than that where entire damages are given, and one count is bad, the judgment must be arrested. But in this declaration there is not one good count, and this is ap- parent on the face of the record without any aid, aliunde. On the first count, the objection, as to the order, is certainly fatal. The act operating like a charter, specifies a particular 1. The two books cited, will certainly warrant th" position of the learned counsel, but the parts referred to are not law. In Sharington v. Strot- ton, Plow., 358, it is said, " By the law of this land there are two ways of making contracts, or agree- ments for lands and chattels : the one is by words, which is the inferior method ; the other is by writ- ing, which is the superior. And because words are oftentimes spoken by men unavoidably and with- out deliberation, the law has provided that, a con- tract by words shall not bind without considera- tion. But where the agreement is by deed, there is more time for deliberation ; for which reason they art? received as a lien final to the party, and are ad- judged to bind the party without examining upon what cause or consideration they were made." The reader will observe, that when Plowden speaks of contracts by writing, he means by deed under seal. This is more explicitly declared in the case of Rann v. Hughes. Baron Skynner there says, " All con- tracts are by the laws of England distinguished into agreements by specialty, and agreements bv parol ; nor is there any such third class as some of the coun- sel have endeavoured to maintain, as contracts in writing. If they are merely written.and not special- ties they are parol.and a consideration must be prov- ed." In Pillans v. Van Mierop, Wilmot,J".,nrgued,that if a stipulation, which was only by words, was ac- cording to the civil law, binding without considera- 142 manner in which the orders of the subscribers are to be made; the by-laws of the company are not to oppose the laws of this State, or the laws of the Union; and yet, supposing the company to have authorized the president and directors to make orders on the stock- holders, that very authority can be supported only by allowing a violation of the law by which the company itself is incorporated. If one branch of those by whom a specific act is ordered to be done, can be dispensed with, an- other may, and there is no saying how far this principle is to be carried; no power can be ex- ercised under the statute, but what is created by it, and executed in the manner it prescribes. On the point in consideration the authority from 5 D. & E., is decisive: no consideration appears by the declaration; the amendment asked must be denied, because it is evident whatever *went to support the first [*275 count, must have been applicable to the second and third counts, which were on the same note as that mentioned in the first; if so Ed- dowes v. Hopkins, relied on by the plaintiffs, shows the amendment cannot be granted. Per Curium, delivered by RADCLIFF, J, In this case there is a motion in arrest of the judgment, founded on objections made to all the counts in the declaration. The counts are three in number, and the ob- jections which apply to all are, 1st. That the promise or contract set forth in the declaration is void for want of consider- ation, and connected with this is another ob- jection, which was distinctly urged, that the first installment of $10 not being paid, the contract was incomplete, and not obligatory on the company and therefore also void. 2d. That the commissioners appointed by the act did not, as soon as 1.000 shares were subscribed, give the notice required by the act to choose directors. 3d. That no order or determination of the President, Directors and Company requiring the payment of the instalment in question, is stated in the declaration to have been made. To the second and third counts there is a further objection, that the plaintiffs have de- clared on the promise or subscription in writ- tion, a fortiori, so must be an agreement in writ- ing. But the civil law itself will not warrant this reasoning. The obligatory force of a stipulation arose from the words being spoken in a precise form before a public officer ; for, if that form was not adhered to, the stipulation was void : therefore if to the question promitits, the partys tipulating had answered spondeo, the stipulation was a nul- lity. I am therefore disposed to think, that the stipulation was taken in the manner of our recog- nizances, and when acknowledged became a species of record. I am peculiarly induced to this opinion from the manner in which they are now entered among the acts of the court, in those of the Eng- lish tribunals,which follows the civil code : and also from considering, that the reduction of a con- tract into writing did not, even by the rules of the Roman jurisprudence, preclude from entering into the consideration on which it was made. By that sys- tem the obligation literatum arising from' the con- tracts ex Uteris, was invariably contcstible in the three following cases : 1st. When the consideration was not expressed. 2d. Even then within two years. 3d. In all cases of loans of money, by the ejrceptin fle nnn mimerata pectinia, which threw the on 11* of proving a consideration upon the plaintiff. The codex, too, is express that no form of words or writing, but assent alone, formed the contract. Cod. lid. 2, tit. 3, 1. 17. COL. AND CAINEB. 1803 THE PRESIDENT, &c., OP THE UNION TURNPIKE EOAD v. THOMAS JENKINS. 275 ing, as upon a promissory note within the stat- ute. 276*] *As to the fi.rst, the form of the subscription which contains the promise, is prescribed by the act in the following terms: " We, whose names are hereunto subscribed, do for oui-selves and our legal representatives, promise to pay to the President, Directors and Company of the Union Turnpike Roads, the sum of $25 for every share or stock in said company, set opposite to our respective names, in such manner and proportion, and at such time and place, as shall be determined by the said President, Directors and Company." The declaration states the plaintiff's subscription in these terms, but does not aver that the $10 on each share were paid, and which the act required the defendant to pay at the time of subscription. I cannot discover any ground on which this promise ought to be considered as void. The subscription was taken by commissioners who were authorized to receive it, and in the form prescribed by the act. That form con- tains an absolute promise to pay the money to the President, Directors and Company. On the one side the interest of the company in selling the shares, and the public advantage to be derived from the success of the institution, and on the other the expected profits to accrue from the stock, were sufficient considerations to render the promise binding. By force of the act itself it must be considered as good. The Legislature also must have intended that it should be obligatory, for else the formal manner in which it was prescribed to be taken would be senseless and nugatory. I cannot imagine that a contract in terms so expressed and complete should be designed to mean nothing. 277*] *The last section of the act by which the Company was created, cannot, in my opinion, destroy its effect. It is thereby fur- ther enacted, that the Directors may call for and demand the sums so subscribed, at such times and in such proportions as they shall see fit, under pain of the forfeiture of the shares and all previous payments. This provision was designed as an additional security for the proportion of the shares which should remain unpaid, and to enable the Company by a de- cisive measure to compel the prompt payments which the objects of the institution required. They had an election to adopt this expedient, and exact the forfeiture, or to enforce pay- ment in the ordinary course by a suit on the j original contract. Not having insisted on the forfeiture, they of course haveTa right to main- tain this action. The objection which is founded on the idea that the contract was not obligatory on the Company, and therefore not mutual in its operations, I also think is not well taken. The subscription was for the full sum originally due for each share. The $10 on each share were due immediately, and the engagement with respect to that sum was like a note or ob- ligation payable on demand. The contract was complete and the defendant had a right to tender the payment of the $10, and demand its performance on the part of the Company, who had an equal right to enforce it against him. I Neither party could revoke it without mutual i COL. AND CAINES. consent, or a default on the adverse side. I, therefore, consider the contract as reciprocally binding, and founded on a valid consideration. *The second objection is, that the [*278 commissioners appointed by the act, did not, as soon as 1,000 shares were subscribed, give notice to the stockholders to choose Directors. This was, I think, properly relinquished by one of the defendant's counsel. It does not appear when the precise number of 1,000 shares were subscribed. The defendant subscribed his shares on the 17th of April, 1801, and it is averred, that on the 21st of the same month upwards of 1,000 shares, to wit, 1,990 were subscribed, and that the commissioners, on that day, gave notice, to choose Directors. The particular time of giving this notice, after 1,000 shares were subscribed, could not be material. The act in this respect was merely directory to the commissioners, and if they did not strictly execute their trust, it could not affect the existence of the Company, nor any contracts made with them. The third objection is, that no order or de- termination of the President, Directors and Company, requiring the payment of this in- stalment, is averred. It is averred that the President and Directors only, made the order. The promise was made to the President, Directors and Company, according to the form prescibed by the act, and it is therefore argued that this order ought to have been made by the Company as well as by the President and Directors. This criticism ought not to prevail against the only practicable construction that can be given to the mode of executing the powers of this corporation. It is obvious that the Company, in their collective capacity, can never act. The President and Directors are their representatives, and they alone are authorised to *manage the concerns of the Com- [*279 pany. The act invests them with this power, and it is thus set forth in the declaration. They alone could require the payment in ques- tion, and the order was properly made by them. The last objection applies to the second and third counts only, in which the plaintiffs have declared on the defendant's subscription as upon a note of hand, without setting forth the act, or any consideration to support the defend- ant's promise. It is not expressly declared upon as a note within the statute concerning promissory notes, but the counts can be sup- ported on that idea alone, for they do not state any consideration independent of the making of the note. The shares of stock to which the defendant would be entitled, are not set forth as the consideration of the promise, but merely as descriptive of its extent, and as designating the amount he undertook to pay. These counts, therefore, cannot be maintained unless the note be considered to come within the statue, which I think it does not. Although by the note the defendant promised to pay $25 for each share, it depended on the future opera- tions of the Company, which was not yet organized, whether the whole or any part of that sum would finally be demanded or be- come due. The payment was, therefore, uncertain and contingent, and such a note has frequently been held not to come within the statute, and can be declared xipon only as a special agreement. 148 279 SUPREME COUKT, STATE OF NEW YOKK. 1803 These counts being, therefore, defective, and the verdict general, the judgment ought to be arrested unless the verdict be amended by ap- 28O*] plying it to the *first count in the dec- laration. * An application fpr that purpose was made by consent, concurrently with the motion in arrest of judgment. And if the judge before whom the cause was tried will certify that the evidence applied solely to that count, or, as I apprehend the correct rule to be, that all the evidence given would properly apply to that count as well as to the others, I think the amendment ought to be allowed. The practice of amending in such cases is well established, and is consistent with reason and justice to the parties. The result of my opin- ion, therefore, is, that the judgment be arrested unless such amendment be made, and in that case, that the motion be denied. LEWIS, C. J. These are actions of assumpsit, brought by the President, Directors and Com- pany of the Union Turnpike Road, against the defendant, Thomas Jenkins, on two several subscriptions, amounting to two hundred and eighty shares in the capital stock of said Com- pany, for certain payments called for, pursuant to the act of incorporation, by the said Presi- dent and Directors. The declaration contains three counts. The first sets forth the act of incorporation, the formation of the Company pursuant thereto, the subscription of the defendant, the call for certain payments of seven dollars on each share, and his refusal to pay, whereby he be- came liable, &c. The two remaining counts are on the several subscriptions of the defendant, as on his prom- issory notes. 281*] *A verdict was found generally for the plaintiffs, and the cause is now before us, on a motion in arrest of judgment, on the part of the defendant, and a motion on the part of the plaintiffs, to amend the verdict by the notes of the judge who tried the cause, so as to confine it to the first count in their declaration, on an affidavit, that no evidence was offered on the other counts. The principal ground of the motion in arrest of judgment, is the alleged want of a consid- eration to support the promise, without which, it is insisted, the action is not sustainable. On the record no consideration is stated. No loss or gain to either party; and testing the con- duct of the commissioners, bv the provisions of the act, none is to be found, in my opinion, in the contract itself. The act requires, that to constitute a stockholder, he shall subscribe an engagment in the words following: "We, whose names are hereunto subscribed, do for ourselves and our legal representatives, promise to pay to the President, Directors and Com- pany of the Union Turnpike Road, the sum of twenty-five dollars, for every share of stock in the said Company, set opposite to our respect- ive names, in such manner and proportion, and at such time and place, as shall be deter- mined by the said President, Directors and Company." It also further requires, that every subscriber shall, at the time of subscrib- ing, pay unto either of the commissioners, the sum of ten dollars, for each share so subscribed. The subscription and payment are both essen- 144 rial to the consummation of the contract. These were cotemporaneous acts. *The declaration states the subscrip- [*282 tion by the defendant merely, without averring any payment or demand of the ten dollars on each share ; and it was admitted on the argu- ment, that, in fact, they were neither demand- ed nor paid. I cannot see, then, any consideration for this promise; and the legislature appear to have been apprised of the inconvenience that might arise from this source, and have provided for it, in some measure, by the last clause in the statute, which gives a power to the Directors, "to call for, and demand of and from the stockholders respectively, all such sums of money by them subscribed, or to be subscribed, at such times, and in such proportions as they shall see fit, under pain of forfeiture of their shares, and of all previous payments made thereon." Suppose the speculation had been an advan- tageous one, and before the first call of the President and Directors, the stock had risen considerably in value, could not the Directors, with propriety, have refused to consider Mr. Jenkins as a stockholder, on account of his not having made the payment required by the act on his subscribing?* I think they could. No positive benefit then, arising from the future emoluments of the Company transactions, can be considered as a consideration for the prom- ise, and if it could, none such is stated on the record. Notwithstanding the motion to amend, it was insisted the suit was maintainable on the sec- ond and third counts. I think not. For a promise to pay on *a contingency, [*28J5 which may or may not happen, cannot be de- clared on as a note of hand. The instrument must be payable at all events. The propriety of amending, I need not con- sider, as I am of opinion, no suit can be main- tained on the first count for want of a con- sideration. lam of opinion judgment ought to be arrested,* 1. After pronouncing the judgment of the court, Radcliff, J., observed, that he thought the regular practice was to obtain the certificate of the judge before whom the cause was tried, that the evidence applied only to the count on which it was meant to enter judgment. Kent, J., who tried the cause, said the affidavit of the plaintiffs' attorney was cor- rect, and therefore he deemed it sufficient for the amendment. In this the bench concurred. THE PEOPLE v. SAMUEL S. FREER. Information Rule to SJww Cause Unavoidable Dentention Overrating Rule. A RULE had, in the last term, been granted ijL against the defendant, to show cause on the first day of the present term, why an in- formation should not be filed against him, and no cause having been shown on the day ap- pointed, the rule was made absolute. Mr. Hoffman now stated to the court, that the defendant had been prevented by adverse winds, which detained himself, counsel and papers, until after the rising of the court on COL. AND CAINES. 1803 THE PEOPLE OF THE STATE OP NEW YORK v. CALEB BKOWN ET AL. 283 the first day of the term, and prayed that the rule might be overrated. 1284*] *Per Curiam. It is of course. Take your motion but show cause, on the first non- enumerated day. CALEB BROWN ET AL. 1. Forfeiture of Lands Seizin or Possesssion of Lands for Breach. 2. Ibed. Entry Office Found. 3. Ibid Entry and Action Office Found Sci. fa. Distinguished Finch's Case, 1 Cro. Eliz., 230; 2 L,ev., 134 ; 9 Rep., 95 a. b. 'PHIS was an information filed at the direc- 1 tion of the Legislature, by the late Attor- ney-General, against the defendants, for an in- trusion on certain lands lying in the county of Otsego. The defendants claimed under letters patent, of the 6th September, 1770, for 9,200 acres, granted by His Majesty, George III. of Great Britain, France and Ireland, King, &c., at a quit rent of 2s. 6d. sterling, for every hundred acres. After the usual reservations of mines, and white pine trees for masts, the grant con- tained the following proviso: "Provided, fur- ther, and upon condition also, nevertheless, and we do hereby for us, our heirs and suc- cessors, direct and appoint, that this our pres- ent grant shall be registered and entered on record, within six months from the date here- of, in our secretary's office in our city of New York, in our said province, in one of the books of patents, there remaining; and that a docquet thereof shall be also entered in our auditor's office there, for our said province, and that in default thereof this our present grant shall be void and of none effect, any thing before in these presents contained, to the contrary there- of in any wise notwithstanding." It was admitted that no docket of the said letters patent had been entered in the office of 285*] the auditor, *pursuant to the said proviso; but the following entry made since the year 1797, is found in a memorandum took of patents in the office of the comptroller of this state, to wit: "1558, patent granted to Leonord Lispenard, 1 and others, for 9,200 acres of land in Albany county, dated the 6th of September, 1770, at 2*. Qd. sterling for every hundred acres." About the same time, when the above memorandum was made, Samuel Jones Esq., comptroller of this state, pursuant to the laws relative to quit rents, caused the aforesaid tract of land to be advertised* for payment of the quit rents due. It was further admitted, that on the 3d of 1. The name of the first patentee. 2. Under the 8th section of the "act concerning quit rents," passed the 8th of April, 1801. 3. The decision alluded to, is Stephens v. Potter, Cro. Car. 100. 2 Res., but that merely determined that a lease for years, reserving- rent payable at the ex- ohequer, is void on nonpayment without office COL. AND CALNES. N. Y. REP., BOOK 1. April, 1799, the sum of 3 dollars and 84 cents, was paid into the treasury of this state by George Stanton, one of the original patentees, in pursuance of the act for the collection of quit rents, as the arrears and commutation then due, on lots No. 41 and 42; and that on the 28th of October following, 3 dollars and 82 cents were in like manner paid on 50 acres of the grant by one Jesse Clark, who had pur- chased under the patent from which the de- fendant Brown derives his title; but neither the lots 41 and 42, nor the 50 acres on which the said 3 dollars and 82 cents were paid, con- stitute any part of the lands in his tenure. On these facts it was submitted to the court whether the defendants were or were not guilty of the intrusion complained of. Mr. Spencer, Attorney-General. It is admitted that there was no docket entered in the audi- tor's *office, according to the proviso [*286 in the letters patent. The information is grounded on this principle: that the forms re- quired by the grant created a condition, pro- viso or limitation, which was to make it void, on the not doing a certain act by the patentees. If therefore this act has not been performed, the instrument is a nullity, and the people have a right to consider all persons now on the land as intruders. It may, perhaps, be urged in behalf of the defendant, that the act con- cerning quit rents has done away the forfeit- ure; especially, as the officers of government have received the quit rents due, and have therefore considered the patent as in existence and good. That, however, will depend on whether the not docketing the patent within the time limited, did not cause the estate of the patentees instantly to cease; or whether, even allowing the contrary, the payment could purge the forfeiture for more than those very lands on which made, and which do not in- clude those for which the intrusion is brought. There can be no doubt that every grantor, whether a state or an individual, may annex to his grant whatever conditions he pleases, provided they are not repugnant to principles of law. Here the condition is, that the grant shall "be void and of none effect." Therefore the acceptance of rent could not restore what was gone. Sir Moyle Finch's case (Cro. Eliz., 321) shows the soundness of this position. This, it may be said, was the case of a demise for years. A distinction, therefore, may be attempted between that and the present, which is of a fee. In fact, however, the diversity does not exist. This the *court will [*287 see in 17 Vin., 81. pi. 1. n. 3 it is not, that in one case the estate is void, and in the other voidable; but whether the determination be by the same means as create the interest. The proviso here, was a limitation which ended the estate on nonperformance, because, as it was created by matter of record, so it was to be destroyed by matter of record. It is gen- erally true, that where a freehold is to be de- feated, entry is necessary, but it is not so, found; whereas, if the rent be payable to the re- ceiver-general, nonpayment without office found, does not vacate. The reason is obvious, as the crown can grant only by record, it can be informed only by record; the nonpayment to the receiver is a matter in pain; when fo'und by office, it is of record, and so is nonpayment at the exchequer. See this, however, doubted, 2 Roll's Abr. 216. (H.) 10 145 287 SUPREME COURT, STATE OF NEW YORK. 1803 where an act that ought to appear of record is not done. It is laid down, that if an estate granted by the crown determine by a condi- tion broken, the king shall be seised without office found, where the breach is apparent up- on record. (7 Com. Di. 53., D. 70.)' It is the revesting of the estate which we contend for here. This makes the difference between the present question, and that of Van Shaick in 1796, in which it was decided by the court of errors, that a new grant would not be made till after office found, not that an information would not lie before. There can be no doubt of the words used in the grant creating a con- dition (Lit. Sec. 329), which was a limitation or qualification of the estate. For this 288*] *purpose, the word "provided," was certainly the most fit. On breach of it, the estate must be judged in the grantor; or, as here, in the people, Lit. sec. 350. 8 So here, as the non-performance was a record, the right to proceed by intrusion accrued before office found, the estate of the patentees being totally divested. The next consideration is, whether any thing has been done to waive the forfeit- ure. This may be laid down as an established position, what is void cannot be confirmed, what is voidable may. As, then, the interest of the patentees was absolutely annulled, the receipt of the quit rents could not revive it, Jenkins v. Church (Cowp. , 482). Doe v. Butcher, (Doug., 50.) Even in voidable cases, the mere acceptance of rent, unaccompanied with any other circumstances, will network a confirma- tion. (See Green's case, Cro. Eliz., 3; Roe v. Harrison, 2 D. & E., 425.) No receipt can re- vive or confirm, unless taken with a knowl- edge of the forfeiture, and an intent to waive. The act concerning quit rents does not recog- nize any loss of title in the defendant, or oth- ers holding under the same patent. No pay- ment, therefore, to an officer acting by au- thority of a general law, with a power merely to extinguish quit rents, could revest. All that he could do was to bar the right of the people on them when due, and not by taking them if not due, to give away the land of the state. 289*] *Mr.Erru>tt&nd.Mr. VanVechten, contra. Though from the length of time the defend- ant and those under whom he claims have been in possession, the case is a hard one, still we are ready to exculpate both the present and late Attorney-General, from all imputa- tion of rigor. They have acted only in obe- dience to resolutions of the Legislature. The case divides itself into two questions. 1st. Whether the grant be void or voidable? 2d. Whether, if so, the present form of action is the appropriate remedy? Whether void or voidable, will depend on a number of subord- inate inquiries. We did not, it must be con- fessed, expect that the proviso would have been urged as a limitation which always goes 1. The cases there referred to are of leases. 2. The case of n lease for five yours, w ith condition to have f<*\ on paying 1 of 40 marks at the end of two years, and livery of seisin according to the deed. Revested by implication, because grantor could not enter upon the br(eh, as, by his own grant, the grr-ntee nad three years in the land. 3. As to conditional limitations, see Fearne. Con. Rein. 6 ed 9. 4. That is, if the act done be in law tantamount on a certain express time of determination; it is a condition 3 and nothing more, in which case, as the estate might continue over, it was voidable and not void. But the words in question created neither the one nor the other; they were merely directory on the officers of government and did not oblige us to do any- thing; they are separated from the conditions by which the grantees were bound by specific acts. The words are, "we direct and ap- point." The clause itself is rare, this being the only grant we can find in which it is con- tained. The officers of government ought, the clause being directory, to have given notice to the patentees to come in and docket; for, to the patentees themselves, the act was nuga- tory, as they had complete evidence of the right by the grant itself. But, considering the clause as a condition, then we contend it is repugnant to the grant, and void. It was for an act to be done by the officers of the crown, for the benefit of the crown alone. It is*[*29O the same as if a grantor had conveyed on con- dition that he should himself lodge the con- sideration money within twenty days, in the United States Bank, or the conveyance be void. The result would be to put the whole grant within the power of the crown; or what is the same thing, within that of its officers. But shoxild the condition in the proviso be deemed a valid one and obligator} 7 on us, we say it has been performed; for, if the intent be complied with, it is sufficient. That the leaning of the court is against forfeitures, we cite Bull., N. P., 96, and that the intent and not the letter of the words, ought to regulate, Shep. Touch., 139. 4 1 Atk., 375. 6 Daley v. De- bouverie, 2 Atk., 261, and the cases cited in p. 1. What, then, was the intent to be answered by this docket? Merely to inform the court of the existence of the grant and the value of the re- served rent, that no interfering patents might issue and the amount of its revenue be known. The entry, therefore, in the comptroller's office, taken from the old minutes there, was fully adequate to every purpose. For, though two' acts are mentioned in the proviso to be done, it does not follow that both are neces- sary to be performed. I^ong v. Dennis, 6 4 Burr. , 2052. *In the present case, how- [*29 1 ever, after a lapse of 30 years, in a country circumstanced as this was during the revolu- tionary war, and when the very record may be supposed to have been taken away by the officers of the crown, to presume a docket regularly entered, is no more than what the law will warrant. Beetle's case, 12 Rep., 5. Should it, nevertheless, be held that the for- feiture was incurred, we still contend that it has been waived. The argument urged against this position, that there is a distinction between the acts of individuals and those of officers of government, is contrary to the im- plication arising from the case of Sir Moylc to the condition expressed, as if to enfeoff; and a lease release be executed. So, in the case put, Litt. sec. SJ2, on the doctrine of cj/ pros. 5. Harvey v. Aston, the condition there was mar- rying with consent. The other authority from Atkins, relates also to conditions in restraint of marriage. (I. That also, was a decision on a case in restraint of marriage, in which the conditions were held to be in the disjunctive, performance, therefore, of one sufficient. COL. AND CAINES. 1803 THE PEOPLE OF THE STATE OF NEW YORK v. CALEB BROWN ET AL. Finch, relied upon by Mr. Attorney-General. For the people are bound by the acts of their agent, in the same manner as any common person. What, then, are those acts? First, the permitting thirty years to elapse in silence; next, the comptroller has made a record or docket, by entering the memorandum stated in the case, to have been written in 1797; it fully sets forth the dates, parties, and rents: this, too, is an act of a public officer. Sec- ondly, by advertising these very lands for the quit rents due, under the authority of the act mentioned in the case. For the language of the advertisement is, we claim not the lands but the quit rents due. Thirdly, the comp- troller has received from one of the patentees, and from a person holding under the grant to them, quit rents for some of those lands and though they have been paid but upon portions of the tract, yet they will accrue to the benefit of the whole grant. (Goodright v. Davids, 292*] Cowp., 803; 1 Pennants case, 3 Rep., *64 b? Green's case, CYo. Eliz., 3; 3 3 Salk., 3.) Independent, however, of what has been be- fore advanced, we contend that an informa- tion for an intrusion cannot be supported be- fore office found. This is absolutely neces- sary to entitle the people to proceed. In the case of common persons, if it be intended to destroy an estate for condition broken, it is in- dispensable that an entry should first be made, Shep. Touch., 153. Whenever an entry is re- quired of an individual, an office must be found for the king, 9 Rep., 96 b. (Sir George Reynel's case.) 16 Vin. Abr., 84 pi. 24, p. Ibid. 83. pi. 19, 20. Even where the whole estate has become void by the non-perform- ance of the condition, still an office must be found before the tenant can be held an in- truder (Sir Moyle Finch' '* case, 2 Leon., 143. Payne's case, Ibid, 206). The proviso on which the Attorney-General relies, being a condition, and the estate under the patent tak- ing effect immediately, it is plain that the grant was voidable only and not absolutely void. This being so, and nothing done to avoid the grant and put the people into pos- session, intrusion cannot lie, for it is essential to intrusion that it be on the actual possession 4 293*] of the crown, 3 Black. Com., *261. Moore, 375. Therefore, in all cases of for- feiture, &c., intrusion will not lie till office found, this being the legal substitute for entry by a private person, and the only means for the crown to regain the possession for the injury to which the intrusion is brought, Litt. Abr. p. 97. (E.) Moore, 296, 7. That this only to be done by office found, Parstow v. Corn, Cro. Eliz., 855, is an authority fully in point. Besides, the title created by the patent was matter of record, and of course must be avoided by that which is of equal solemnity, Plowd., 229, and the cases there cited. The only method then, to have been pursued, was by an office finding the forfeiture, and intru- sion upon that. This will appear still more evident if we consider the effect of the differ- 1. The point there was, that acceptance of rent, after condition broken with notice of the breach, is a waiver of the forfeiture. 2. Which of the resolutions there made is alluded to, I know not; possibly the third, but that g-oes on the distinction between void and voidable leases. COL. AND CAINES. ent proceedings. On the inquest of office, performance of the condition, or refusal by the officer, which is tantamount (10 Rep., 67, b. 2 Res.) might have been shown, but this could not be done under an information for in- trusion which merely states the possession of the crown and the defendant's intrusive entry, case of Alton Woods, 1 Rep., 28. Plow., 479. The necessity, therefore, of these measures must appear, that the parties might have notice of the grounds of the claim against them. This cannot be done by the informa- tion now brought, which is not like a writ of escheat that sets forth the whole claim on the part of the crown. If what has been laid down already for us be true, that the docket- ing was a duty to be performed by the officer, then it is for the honor of the crown, as the old books say, to be presumed that it has been done, case of the Churchwardens of St. Saviour, Southwark, (10 Rep., 66.) For it can never be imagined that the crown would make a grant, dependent for its validitty *on acts to be performed by itself and [*294 omit those acts. Let it be observed too, that no form of docketing is prescribed by the grant; and as the revolutionary war has inter- vened, it may well be intended that the entry made in the comptroller's office in 1797, was by way of docket, which would be no more than a memorandum for the guidance of the officers of the crown. If, however, the pro- viso be a voidable condition, then the doctrine of waiver will apply. For government can never be supposed to do so great a wrong as to permit men to make improvements, then offer to receive a commutation in discharge of quit rents due on those very lands which they claim as forfeited, receive the amount and then attempt to defeat their grant. Because, having dispensed with the condition in part, by a partial receipt of quit rents, the condi- tion is dispensed with in the whole. Cro. Eliz., 816. (Dumper v. Sim*.) This species of construction is due to the liberality and honor which we are to suppose constantly actuate the proceedings of government and is a prin- ciple universally acknowledged. (9 Rep., 131; Benley's case; Rolyn's case, 6 Rep., 5; 10 Rep., 67.) In a more peculiar manner is this to be adhered to after a lapse of 30 years, when the rights of third persons, bona fide purchasers and others, are implicated. In Van Schaick's case it was settled that where a forfeiture was apparent by matter of record, then a scire facias should go; when it arose on matter in pain, an office must be found. The informa- tion, therefore, must fall. Mr. Spencer in reply. The words of the pro- viso are sufficient to show the docketing was not directory to the officers of the crown. The grant was to be valid *on doing several [*295 acts, some in pais, some in record. If not performed in a certain time the letters patent were to be void. The words ' ' direct "and " ap- point," are declaratory to the patentees, that the estate granted should be subject to the 3. Determined that receipt of rent due does not prevent re-entry, but if accompanied with a receipt calling the lessee his farmer or tenant, it does. 4. The words in Moore, are, " an information for intrusion is not a real but personal remedy, and resembles in all points a trespass aprainst a subject, for it supposes the queen in possession." 147 295 SUPREME COURT, STATE OF NEW YORK. 1803 condition of their registering and docketing. This must always be at the request of the parties, who must do an act towards it: nay, they, according to the colonial system, had to pay for its being done, and, therefore, was clearly a duty in them; for it is coupled with a stipulation, that if it be not performed, the letters patent shall be void. This makes the proviso a limitation; and when so it is not necessary that an office should be found, be- cause the crown would be immediately reseised. (Poph., 53.) Whether, however, it be consid- ered as a limitation or a condition, is immate- rial; for no office was necessary. It is required only to make the forfeiture known by matter of record. Here the docket for a matter of record, and whether the grant was docketed or not, would appear by inspection of the records. The forfeiture, therefore, being thus by matter of record, needed not to be found by office. The authorities cited by the other side are in conformity to this position. (2 Roll. Abr., 215; Cro. Car., 100; Steven* v. Potttr.) On the not docketing according to the terms of the proviso, the estate of the patentees was gone, and this being by matter of record, the people were reseised. No act, therefore, of their officer in taking rents not due, could revive an interest absolutely avoided and null. The cases from Cowper and Douglas, when looked into, will show this, though they are quoted as authorities against the people. The principle they settle is, that no acceptance will waive a forfeiture, 296*] without *knowledge of all the circum- stances by which that forfeiture was worked. The people had acquired fee on breach of the condition. The quit rents, therefore, were merged, and a tortious taking by their officer of what was not due, not knowing it not to be due, can never waive their rights. Mr. Van Vechten. We say, by the act he was constituted judge whether quit rents were due or not. Mr. Spencer. We say he was not ; that he was a mere receiver, delegated to receive alone. The act of the officer in making the entry in 1797, was, allowing his acts to enure to the advan- tage of the defendant, yet it was not in time. In arguing from the presumption the 30 years lapse has afforded, the counsel seem to forget that there is a law 1 by which the limitation of suits by the people for land, is settled at 40 years. It is an absurdity to settle a limitation at 40 years, and presume against it at 30. Nor can anything be presumed from the rev- olution, because the court knows all the papers in the various offices were preserved. In one of the cases referred to, the presumption arose from this that as the deeds were delivered in to be cancelled (10 Rep. 67, 2d Rev.), the of- ficer should be presumed to have cancelled them; but were the deeds here delivered to be docketed? On every ground, therefore, we consider the people entitled; especially as the want of docketing is proved by the records, and an office found would be only surplusage. Per Curiam, delivered by LEWIS, C. J. This is an information of intrusion, filed by the 1. Act for limitation of criminal prosecutions, and of actions at law. 1 Rev. Laws, 562. 148 late Attorney *General, and now pros- [*297 ecuted by his successor in office. It comes be- fore the court on a case which sets forth, that a royal grant, by letters patent, issued in 1770, to Leonard Lispenard and others, for 9,200 acres of land, now in the county of Otsego, but then in the county of Albany, on the an- nual quit-rent of 2s. 6d. sterling per hundred acres. The grant contains sundry conditions, on the non-performance of any of which it is declared to be void and of none effect. Among the number, are the following: That the grant shall be registered and entered on record, within six months from the date, in the secre- tary's office; and that a docket thereof shall be also entered in the auditor's office. It is admitted, that though the letters patent were duly recorded, no docket was found in the au- ditor's office; but that a note of them is found, entered in a memorandum book of patents, kept in the office of the comptroller of the state, bearing date in 1797, and that the quit- rents, on parts of the tract, have been paid to the existing government. The defendant claims title under the said patent, and the question for the court is, guilty or not guilty. To decide this question, it is necessary to inquire whether an information of intrusion lies under the circumstances of this case. To sustain a prosecution of this description it is necessary that the crown formerly, and the government now, should be in the actual seisin or possession of the subject intruded on. I shall lay down a few general principles or maxims, *which I conceive incontro- [*298 vertible, and which may be gathered from the two principal cases, relied on, that of Sir Moyle Finch (Cro. Klitz., 220., 2 Lev. 134), and of Sir George Reynel (9 Rep. 95 a.), as well as from the decision of the court for the correction of errors, in the case of the devisees of Van Schaick v. King. 1st. That the state can acquire seisin or possession of lands, for breach of condition, by matter of record only. 2d. That generally where entry is neces- sary in the case of a common person, an office is necessary to entitle the state. 3d. Where entry and action are necessary to a common person, an office and sci. fa. are necessary to the state. It is true, there are cases (9 Rep. 95 b) where the crown may be in possession by seizure without office, "but they are not cases of this description, they are confined to the forfeitures of temporality of alien ecclesias- tics, where the certainty of the matter appears in the exchqeuer. There is an important and striking distinc- tion between the case of Sir ^^r>ylf Pinch, and the one now before us. The forfeiture there was of a term; here, if any, of fee; now a fee shall never be void, absolutely for condi- tion broken, but voidable by entry onlv, though it is otherwise of a term. But even in Finch's case, as reported by Mr. fsonard, who states it much more at large than Mr. OoAv.both Mr.PopluimanA *Mr. CVflAv, who argued [*299 for the plaintiff,and Mr. Mamrowl, {.'\\lci -Baron, in giving judgment for the plaintiff, admitted, that, although the lease was void without of- fice, it was void in interest and property only, COL. AND CAINES. 1803 JACKSON, EX DEM. EDMUND PRIOR, ABRAHAM KNAP, &c., v. HALEY BROWN. 299 but not in possession. And that though the Queen without office.and a common person with- out entry, might grant it over, yet the former could not without office prosecute for an in- trusion, nor the latter without entry for a trespass. These opinions, I think, decide the question; and that judgment must be accordingly for the defendant. JACKSON, ex dem. EDMUND PRIOR, ABRA- HAM KNAP and ELI KNAP. v. HALEY BROWN. Costs Continuance of Trial Epidemic Coun- termand. THIS was an application for costs for not proceeding to trial. The plaintiff relied on the prevalence of the yellow fever, which, after noticing for the circuit, prevented him from obtaining a paper necessary on the trial. Per Curtain. It does not appear that any countermand was ever given, though there was time for doing so, between the period when the impossibility of procuring the docu- ment was discovered, and the day fixed for the circuit. It is true, the act of God is to work injury to no one. but when, as here, the impossibility induced by that act could have been communicated to the defendant in sea- son to have prevented his attendance on the circuit, and this was omitted, the fault was with the plaintiff, and he must pay costs. 3OO*] *THOMAS KIRBY v. SALMON COGSWELL. Argument Notice Stay of Proceedings. IT was ruled in this cause, that after a certifi- cate of probable cause to stay proceedings, both parties may notice for argument, and that the not entering and noticing for argument by the party obtaining the certificate to stay, is no cause for a motion to discharge the order; (Vide ante, p. 259); especially if made without notice. THE PEOPLE v. FREER, Printer of The Ulster Gazette. Contempt Attachment Publication of Court Proceedings Affidavit of defendant Personal Appearance and Answer. A RULE was granted last term, for the de- fendant to show cause on the first day of this, why an attachment should not issue against him, for a contempt, in publishing some paragraphs in TJie Ulster Gazette, respect- ing the trial of Harry Croswell, for a libel on the President, then subjudice. COL. AND CAINES. Mr. Hamilton, on bringing in the affidavit of the defendant (who did not himself appear in court), moved for an enlargment of the rule till the next term, to consult with the defend- ant as to expunging some part of the the mat- ters introduced, as irrelevant. The idea of an intentional contempt was, he said, denied, but there were circumstances introduced, which counsel thought had better be omitted. Per Curiam. If the application had been to supply any new fact, and that fact had been made to appear by affidavit, it would have been attended to; but we cannot enlarge a rule merely to give counsel an opportunity to consider of the propriety of expunging *parts of an affidavit, which, we must [*3O1 consider, has been made according to the truth of the case. Mr. Hamilton then read the affidavit, which did not deny the publication, but only went to negative any intentional contempt or disre- spect towards either the court or its members. Mr. Sanford, contra. The publication being confessed, the court has only to pronounce, whether it amounts to a contempt or not. The intention, giving it the utmost latitude, can be taken only in mitigation. It cannot make the publication less a contempt, A man cannot justify his conduct by saying, I have offended, but did not mean to sin. The question is simply this, ought an attachment to go for this publication? In deciding this question the court is not to look beyond the words contained in the paper. Mr. Hamilton, in reply. I cannot subscribe to the doctrine, that the court will not look be- yond the paper itself. This is extending the doctrine of libels. I have heard, that there the truth may not be given in evidence, but never yet did I hear that another paper or circumstance may not be given in evidence to show the intent, So here, the motive of pub- lication may surely be urged to prove that no contempt, in fact, existed. Per Curiam. The affidavit does not justify the publication. It is at best but an excuse. On such occasions as the present, the defend- ant ought to appear in person and answer. Let, therefore, the rule for an attachment be made absolute. Cited in Col. & C., 411. *JAMES HOUGHTON [*3O2 PETER B. STRONG. CerUorari Declaration Statement of Cause of Action. ON certiorari from a justice's court. The declaration, as appeared from the return, stated, that the defendant "privily, wilfully and maliciously, by certain conduct, damaged the plaintiff to the amount of twenty-five dol- lars." General errors were assigned; and it was principally relied on, that no cause of ac- tion was stated in the court, so as to show the justice had cognizance of the suit. 149 302 SUPREME COURT, STATE OF NEW YORK. 1803 Pei' Ouriam. The declaration is bad. It ought to have stated, not only the injury, but how it arose. If this be necessary in this court, it is more so before inferior tribunals, whose proceedings may be reviewed here. Unless the cause of action be stated with certainty, it is impossible for us to know whether the jus- tice had jurisdiction or not. This very suit may, for aught that appears, have been in slander, or for an assault and battery, or for some other matter not cognizable before a justice. Nor does it appear by any part of the record (none of the testimony being re- turned) what kind of action was proved by the witnesses. The judgment must, tJiwefore, be reversed inith costs. MAYLO KNAP . JOHN PALMER. Amendment Of Certiorari Cause of Action. ERROR on certiorari. The affidavit on which the certiorari was granted, set forth the action to be debt; the certiorari itself stated it to be trespass on the case. The defendant had served the plaintiff with a rule to assign errors, before the expiration of 3OJ?*] which *an application was made to His Honour, Mr. Justice Kent, at his chambers, for an enlargement of the time; this his hon- our was pleased to order on an affidavit of the plaintiff's attorney, specifying the original cause of action, and that the describing the cause as trespass on the case, was a mistake. To this affidavit the plaintiff had annexed a copy of a notice to move the court to allow the amendment of the certiorari, and had duly served the plaintiff's attorney. Mr. Woods now moved for leave to amend the certiorari, by striking out the words "trespass on the case," and in their stead inserting the word "debt." Ordered accordingly. LIVINGSTON v. ROGERS. Argument Calender New Notice Next Term. rpHE court ruled that causes which had been J- noticed for argument, and duly entered by the clerk, if not brought on, are to be re- noticed to the clerk for him to re-enter, as they will not be, of course, carried over to the cal- endar of the next term. DEN v. FEN. 1 . Inquest Feigned Issue Irregularity Re- liefCourt. 2. Default No Notice of Trial. IF, in a feigned issue from the Court of Chancery, an inquest be improperly taken, relief must be sought in this court. If an in- quest be taken at a circuit court by default, and notice of trial has not been given, it will be set aside, with costs, to be paid by the plaintiff's attorney. lf>0 *JOHN R. BOWNE, surviving part- [*3O4 ner of JOHN R. BOWNE and SAMUEL EMBREE, v. JOHN SHAW. THE SAME v. WILLIAM NELSON and GEORGE BUNKER. 1. Marine Insurance Contraband Goods Knowledge of Insurer. 2. Idem Return of Premium BroJcer and Assurer and Assured. 'PHESE were two actions on a policy of as- 1 surance on the cargo of the schooner Polly, in which verdicts were taken for the plaintiff, subject to the opinion of the court on a case made, with liberty to turn the same into a special verdict. The only question was on the effect of the warranty against loss "by capture, or deten- tion for, or on account of any illicit trade, or trade in articles contraband of war." The facts were, shortly, these: The prop- erty insured, no part of which was contra- band, really belonged to the plaintiff and his deceased partner, who were also owners of the schooner. They, however, as agents for Jos- eph M. Stansbury, shipped on his account, in the same vessel, other articles which were contraband, and Embree even made out the invoice in his own hand-writing. The differ- ence of premium between contraband and other goods for that voyage, was 21 per cent. At the time, however, of subscribing the pol- icy, Shaw knew there were contraband articles onboard; Neilson and Bunker did not; and as soon as they did know it, insisted on being discharged from the policy. This the plaintiff agreed to do, but did not erase their names from the instrument. The vessel was taken, and together with her cargo condemned as lawful prize. In promulgating * the [ * 3O5 sentence, on the 13th of December, 1800, the judge rested himself on the general interest of the plaintiff in the contraband. This he infer- red, from its appearing that Stansbury was part owner of the vessel in the September preceding, and there being no evidence of his having ever alienated his share. He also re- lied on the invoice of the contraband being in the hand-writing of Embree. It was, how- ever, admitted that the plaintiff had not, either directly or indirectly, any interest in the con- traband articles. In the case of Neilson and Bunker, the re- turn of premium was the sole object of suit. The defendants contending the broker was as much the debtor for the premium to the as- sured, as to the assurer, and, therefore, the action improperly brought. The facts on this point are fully detailed in the opinion of the court. Mr. Hoffman, for the plaintiff. The court is called on to say whether the warranty is con- fined to the goods insured by the policy, or shall be considered so extensive as to guard against all losses, whatsoever they may be, arising from any article on board which may be contraband. There is no position of law COL. AND CAINES. 1803 JOHN R. BOWNE v. JOHN SHAW, ETC. 305 more known, or more acted on, than that the mere letter of a contract is not to be the rule of exposition. It is to be construed according to the spirit, and expounded according to the intent. If so, though the words be large enough to cover all goods, we may examine into the intent, which cannot be better done than by inquiring into the reason of introduc- ing this clause, the mischief it was meant to 3OO*] redress, and *the remedy it was de- signed to afford. It owes its origin to Seton, Maitland & Co. They insured contraband merchandise without communicating its na- ture, and this court decided a neuter need not avow the quality of his shipment, all goods being to him lawful trade. To communicate to the underwriter the particular species of commodity shipped, and yet to warrant only as to that commodity, was the clause intro- duced into our policies. The conduct of Neilson and Bunker show this construction ought to be adopted. On being informed there were contraband articles on board, they desired to be released from their responsibil- ity; this was unnecessary, if the warranty covered those articles. The generality of the construction is against it. An importer must warrant against transactions and parties thou- sands of miles distant, and always in the dark. This would destroy insurance itself. Besides, Shaw underwrote with a knowledge of all the circumstances, and must be pre- sumed to have taken the risk of consequences from contraband articles, on himself. Our construction, therefore, as to him, must pre- vail. Messrs. Pendletonand Harison,contra. Thein- tention of introducing the clause, on the con- struction of which the whole of this contro- versy depends, was to relieve the underwriter from his general liability. It was an excep- tion from what was considered as the effect of the policy. Being so, the exception must be co-extensive with the effect. The words also used for this purpose are equally large. They are, "for or on account of any illicit or pro- hibited trade." But in deciding the present case, it is not necessary to determine the uni- 3O7*] versal operation of the clause in *ques- tion. The plaintiff here was owner of the vessel. He is presumed connusant of all that comes on board. By the old maratime law, his vessel was liable for confiscation for hav- ing contraband on board, merely from the circumstance of his supposed knowledge. This, on general principles, would affect the cargo which belonged to him, because the taint of contraband is communicated wherever there is privity. 1 It is only in modern days that we have had the rule relaxed, but that is only when actual knowledge is not proved. Here the reverse is the case, and the circum- stance of the plaintiff's partner having written out the invoice, was a principal ingredient in causing the condemnation. In the case of NeiUon and Banker, allowing the plaintiff en- titled to recover, it must be from the broker, and not from the defendant. Mr. Hamilton, in reply. It is contrary to the principles of a warranty, that it should extend 1. Sec the case of the Franklin, 3 Rob. Ad. Rep., 317, and the note there, p. 221 (a), where this point is ably treated. COL. AND CAINES. to all things. It can relate only to the subject matter insured. When we warrant of a cer- tain thing, we warrant of that thing alone. When we warrant against acts, we may war- rant against the acts of all the world. The intent of the clause cannot be doubted. It was framed by myself, to avoid the construc- tion contended for on the other side, and to confine the operation of it simply to the article insured. I have heard that every new clause in an instrument is but a fertile source of liti- gation, and it is with regret I find in myself a personal verification of the truth of the re- mark. But whatever may be the construction of the effect of the warranty, it cannot touch the present case, because all was known to the defendant. I cannot, however, agree that the operation of the clause is to be *differ- [*3O8 ent against different persons. The rule of law must be the same as to all. Per Curiam, delivered by LEWIS, C. J. The question between the parties to this suit arises upon the warranty against loss by capture or detention for trading in articles contraband of war. The effect which contraband shall have upon lawful goods, when going to the port of a belligerent, would be here a proper subject of inquiry, had the fact of the Polly's carrying such contraband been secreted from the in- surer at the time of subscribing the policy. But it is stated in the case that the circum- stance was within his knowledge. It is,there- fore, only necessary to inquire into the under- standing the parties had of the contract they entered into. The goods covered by the policy on which this suit was brought, were lawful, and insured at a premium of nine per cent. Certain contraband articles were shipped in the same vessel by the plaintiffs, as agents, and insured at a premium of 30 per cent. With a knowledge of this fact the defendant subscribed the policy, and as both parties must be presumed equally acquainted with the law upon the subject, he doubtless took the risk of all the consequences that might result to the lawful from the illicit goods; the warranty extending, in the understanding of the parties, to the goods only, which were the subject of the policy. lam, there/are, of opinion the plaintiff is en- titled to recover as for a total loss. In the case of the same plaintiff against Neihon and Bunker, I think the former entit- led to a return of *premium. The [* 3O9 broker who held funds of both parties, debited the plaintiff in account.with the whole amount of premium due on the policy, and credited the defendants for their proportion. In Ma^v, 1801, he settled with the plaintiff, and paid him a balance which did not include the pre- mium in question. On two several accounts rendered the defendants, the amount of pre- mium still stood to their credit. And although a balance in their favor has always lain in the hands of the broker, to a greater amount than the premium, it does not appear to have been left there for the purpose of re- payment to the plaintiff. No authority for this purpose has ever been given, and the de- fendant must be considered as still withhold- ing it from the plaintiff. 151 309 SUPREME COURT, STATE OF NEW YORK. 1804 FEBRUARY TERM, 1804. JOB ATTERBURY WILLIAM TELLER, JUNIOR. Second Suit Plaintiff Setting aide 1m Damages assessed by the Clerk in the First Suit Costs. rPHIS was an action on two promissory notes, JL on which the clerk had, according to the practice of the court, assessed damages. A former suit had been brought on the same notes, which were the foundation of the pres- ent action. The attorney for the plaintiff lived in New York, and had not any agent in 3 1O*1 Albany, near to which the *attorney of the defendant resided. Whilst the plaintiff's attorney was proceeding in New York to ob- tain judgment, the defemdant's attorney put up, in the clerk's office in Albany, the usual notice of appearance, and of a rule to declare, after the expiration of which, no declaration having been received, the defendant, after the regular affidavit of due service, entered a non pros for not declaring. During these transac- tions in Albany, the plaintiff went on in New York, and there obtained, subsequent to the en- try of -non pros in Albany , a judgment by default ; after which, the clerk of the court duly as- sessed damages, and indorsed the amounts on the respective notes. The attorney on record for the plaintiff having been changed, the present attorney discovered the above circum- stances, and as the judgment of non pros had been entered in consequence of the original attorney for the plaintiff not having had an agent in Albany, he paid the defendant's attor- ney the costs of non pros, and agreed to vacate his own judgment, which was accordingly done. A second action being now commenced, the plaintiff was apprehensive that the assessment of damages under the first might be made use of on the trial, as a species of judgment already recovered. Mr. Pendlelon, on affidavits containing the above facts, moved for liberty to strike out the assessment indorsed, and proceed to trial on the merits, in the same manner as if the dam- ages had never been assessed. Mr. Van Antwerp resisted the motion, relying on the assessment being conclusive as to the amount. 311*] *Per Curiam. Take the effect of your motion, with costs of this application, to be paid by the defendant. JAMES JACKSON, on the demise o'f SILAS SMITH, v. JOHN HAMMOND. Judgment Nm Prim Record lost Leave to Make up and File new Record. IN this cause, on an affidavit, stating a ver- dict having been, in 1792, taken for the 152 plaintiff, subject to the opinion of the court, on a case agreed on between the parties, on which judgment had been given in 1798, for the plaintiff; and also that the nisi prius record and issue roll, were not to be found in the office of the clerk of this court, nor the nisi pnus record among the papers of the former clerk of the circuit, in which the cause was tried, and if left with the plaintiff's attorney, had been burnt or lost, leave was given to make up and file a new nisi prius record, with a postea to be indorsed thereon, conformable to the minutes of the trial, and also to enter up judgment, and issue exe- cution for the plaintiff, according to the opinion of the courtln 1798. No opposition. AMBROSE SPENCER EZRA SAMPSON. Struck Jury Important or Intricate Cause Libel of Public Official. THIS was an application on the part of the plaintiff for a struck jury, in an action on the case for a libel. The affidavit on which it was founded stated that the words spoken of the plaintiff, concerning him in his official character as Attorney-General, were false, and that the cause was at issue. *Mr. W. W. Van Ness opposed the mo- [*3 1 2 tion, urged, that to entitle to a struck jury, the cause ought to be important and intricate; that though he might allow the importance of every cause relating to character, yet, its in- tricacy he must deny, and both these circum- stances are necessary by our statute. Per Curiam. The words of the statute are, "intricate or important." It is of great con- sequence to this court to protect its officers, and those of the public, in the discharge of their duty. Take your rule. RICHARD D. ARDEN AND EPIPHALET W. CLOSE RANDAL RICE, CONSIDER WHITE, ANI> HENRY TOWNSEND. Judgment In Vacation Demurrer Delay. THIS cause had been noticed by the plaint- iffs for argument, at the last term, on a general demurrer filed by the defendants to the declaration; the court had, on the state- ment of the plaintiffs' counsel that the de- murrer was merely for delay, overruled it, and granted a rule for judgment; the counsel pledged himself to open the rule any day on an affidavit of good cause of demurrer, or of merits. On service of the rule for judgment, the defendants gave a cognovit, on which the plaintiff entered up his judgment in the last vacation. Cor,. AND CAINES. 1804 EGBERT GILCHRIST v. PKTEK VAN WAGENEN AND JOHN I. MOORE, ETC. 312 Mr. Foot moved to set aside the judgment, contending that it could not be entered but in term. Some little variance of opinion existing on the bench, respecting the practice on this 313*] point, it stood *over till the last day of term, when the court thus decided: Per Curiam. By the 8th rule of April, 1796, judgment, after a default entered, may be entered at any time after four days in term have intervened. The rule of July Term, 1796, ordering all rules for judgment to be entered in term, and not in vacation, was abolished in Apri^ Term, 1799, and restored the first rule. There is no good reason why four days in term should be given in this case to the defendants, any more than on a war- rant of attorney to confess judgment. The defendants take nothing by their motion. SPENCER, J. , dissented, on the ground that the practice had been different. ROBERT GILCHRIST r. PETER VAN WAGENEN AND JOHN I. MOORE. AUGUSTINE H. LAWRENCE PETER VAN WAGENEN. Special Bail Surrender of Defendant Flight of Defendant. r PHIS was an application by the attorney of I the plaintiffs, for liberty to file special bail in both suits, to enable him to surrender the defendant. The circumstances, as disclosed on affidavit, were these: The defendant, Van Wagenen, had been arrested in both actions, one of which was for $4,000, and the other for $400, at a very late hour of the night, and was by the officer who took him, carried to the house of the plaintiff's attorney, who was then in bed. Being called up, the defendant request- ed him to take as bail one John S. Moore, who 314*] *was at first refused. But on the defendant's representing the distressed state his family would be in, and the shock it would be to his credit, should he go to jail, the attorney, on receiving his faithful assur- ance that sufficient bail should be put in by nine o'clock the next morning, agreed to ac- cept John S. Moore as bail for that night, and the defendant was accordingly suffered to go at large. The defendant, however, instead of putting in satisfactory bail, as he had promis- ed, went immediately on board a vessel that he owned, which was bound for the West Indies, though he knew at the time that Moore, who has since been declared a bank- rupt, was then insolvent. On this the plaint- iff's attorney filed common bail in each of the suits, according to the provisions of the stat- ute; but having been threatened by the plaint- iffs with being called on for the amount of their debts, COL. AND CAINES. Mr. Boyd made the application above men- tioned, which, not being opposed, was granted. JAMES JACKSON, on the demise of STEPH- EN HOGEBOOM, v. JOHN STILES AND AUSTIN GRIFFIN, Tenants in Possession. Ejectment Defective Papers Setting aside Rules to Appear Consent Rules Statute of Limita- tions. IN this, and several other actions under the demises from the same lessor, the tenants moved to set aside the rules which had been entered to appear, and enter into consent rules, or that judgment go against the casual ejector. The notice of motion stated that the appli- cations would be grounded on an inspection of the declarations, notices and affidavits on file, by which it would *appear that [*3 15 three of the notices were directed in blank, and one to James Perkins, instead of the ten- ant, James Kerman. Mr. Harison. In ejectment, the declaration is analogous to process, and ought, therefore, to be governed by the same rules. If a sheriff were to serve one man with a writ, directed to another, it certainly would not be a legal service, and in ejectment a notice to A is not a notice to B. Kerman can never be Perkins; the court will not permit the possession of one man, to be charged by proceedings against another. Mr. Woodworth, Attorney-General, read an affidavit, stating that James Kerman was per- sonally served, and that the declaration, with notices annexed, were served on the tenants. The court will see these facts also (ante, p. 227), which was an application in this very cause. If the effect of the present motion be allowed, it will, in fact, be to try and decide the cause against the lessor of the plaintiff, as the limitation of the statute will then apply. Mr. Harison, in reply. The effect of the statute cannot be taken into consideration. Suppose trespass for carrying away goods brought, in- stead of assumpsit, and the six years passed, would the court interfere to prevent the operation of the statute ? This case deserves no indulgence; twelve months elapsed before the application to amend in August last was made. *Per Curiam. The application in [*31O these suits is founded on a reference to the pro- ceedings on file, by which, it is said, it will appear that one 'of the notices was mis- directed, and the others in blank. In the affi- davit on behalf of the plaintiff, it is sworn that the direction of the one served on James Kerman was to him in his name, and that the tenants were duly served; if the facts were otherwise it would have been very easv to evince them, by producing the several notices, &c., actually served, without referring to those on file. It is, therefore, to be presumed that the services have been regular. The 153 316 SUPREME COURT, STATK OF NEW YORK. 1804 court will, in the present case, support this presumption, as otherwise, by the intervention of the limitation of the statute, the plaintiff would be barred. The case of Reynolds is very different from this; there no proceedings had been served on him; a different tract of laud was claimed; the first intimation he had was by an execution which turned him out, and that very execution against the possession of a different man. We there protected the right of the party, and we do so here. The tenants can take nothing by their motion. JOHN KIHBY AND EDWARD KIRBY EDWARD WATKEYS. Commission Plaintiff not Joining Vacatur for Trial. f PHE defendant had, after due notice, ob- L tamed a rule in the last term for a com- mission, in which the plaintiff did not join, to examine a person in Port Republican, and .since then had not given any notice of further proceedings under the commission. On these facts Mi: Harison moved to vacate the rule. 317*] *Per G'uriam. Let the rule be so far vacated as to permit the plaintiffs to proceed to trial notwithstanding the commission. N. B. On a commission to England the court will, after eight months without return, give leave to proceed to trial, notwithstanding the commission; but this does not prevent cause being shown at the circuit, why the trial should not then be put off. JAMES JACKSON, on the demise of ROSE- KRAKS, V. JOHN STILES, BENJAMIN HOWD, Tenant. Ejectment Default Irregularity of Service of Plea and Consent Rule Costs Paid Setting aside Judgment Restitution, THIS was an action of ejectment, brought to recover lands to which the tenant derived title under the state. The declaration, &c., had been duly served on the tenant, and by him delivered to the Attorney-General on the 14th of April last. The notice was of course for the last May Term, and the consent rule and plea were immediately afterwards, drawn and forwarded to a clerk in the office of the clerk of this court in Albany, directed to the attorney for the plaintiff, who the Attorney-General be- lieved to reside in or near Albany. The con- sent rule and plea were duly received, but from inattention in the clerk to whom they were transmitted, they were filed instead of being served. The consent rule and plea not having been received, the plaintiff took his judgment by default against the casual ejector, 154 sued out a writ of possession, and turned out the tenant. On these facts it was intended to move the court last term to set aside the judg- ment and writ of possession, and that a writ of restitution *should issue; but it be- [*318 ing inconvenient to both parties to bring it on then, a written agreement was entered into, consenting to postpone the application till this term, and that the delay should not be deemed a laches in the tenant. Mr. Guinea, on the above facts, substantiated by affidavit, now moved to set aside the default and subsequent proceedings, and that a writ of restitution should is.sue. There were, he said, but two objections which could be made to the motion. First, that the default was not ac- counted for; second, that the application ought to have been made at .an earlier day. As to the first, this court had allowed the mis- carriage of pleas when sent by the mail to ex- cuse a default (Hudson v. Henry, ante, p. 168), and though this was not exactly that case, it was Avithin its principle; for, the defendant's attorney had taken every necessary step in due time. On the second point, the written agree- ment was a complete answer. In addition to this, no injury could be induced by granting the application; if the plaintiff had any right, he would, on a trial, be able to prove it; on the other hand, if the motion was denied, it might be of the utmost prejudice, as it would shut out the defendant from all possibility of show- ing his title. Besides, the rule was not asked for but on payment of all costs, so that the plaintiff would be where he was, with all his rights, titles, and even his pocket unimpaired. Mr. Van Vcehten, contra, read affidavits stat- ing that the lessor of the plaintiff had been duly put in possession of the lands in question by the sheriff of the county, and had, on the same day, granted a lease of *the premises [*31$) to a third person; that in conversations with the lessor of the plaintiff, he had acknowledged that he held under the patent of Clifton Park, where, as those delivered were claimed under that of Kayaderosseras, and that the lessor of the plaintiff had acknowledged he believed the premises delivered under the writ, were in Kayaderosseras. It was, therefore, insisted, that as now the right of a third person was implicated, the court would not interfere; that the title was acknowledged, and it would, therefore, be useless. The excuse of the de- fault was also denied to be similar to the cases relied on. Mr. Caines, in reply. The lease granted since the execution of the writ, and before the sign- ing of the agreement, must have been so re- cent as to admit of no improvements. The third person, therefore, can sustain no injury. Allowing the right to be with the lessor, stiH it cannot be thus tried on affidavit. A jury is the tribunal for its determination. In refer- ring it to a jury, he has all his rights, and the expense he has been put to we agree to pay. He, therefore, cannot suffer; but the defend- ant may, as he cannot obtain compensation from the state, unless he shows a defence, to which alone he asks to be admitted. Per Curiam. The proceedings, on the part of the defendant certainly have not been per- fectly regular, for they ought, in strictness, to COL. AND CAINES 1804 EDMUND KIRBY v. SAMUEL COGSWELL. 319 have been sent to the agent of the plaintiff's attorney. It appears, however, that every measure necessary for the defence was actually taken, though, from an idea on one hand of the 32O*] clerk of the defendant's attorney, *that the plaintiff resided near Albany, and a mis- take on the other, in the office of the clerk of the court, the papers never reached their proper destination. In ejectment, as it is the creature of the court, every thing will be done to pro- mote the justice of the case, according to right, and the court will go further to protect the possession, when it can be done without in- jury to the plaintiff's claim, than it is willing, in other cases, to proceed. As, therefore, there was a full knowledge in October last of an intention to make this" application, and the transactions are all of a recent date, we are of opinion that the default entered against the casual ejector, the judgment thereon, and the writ of possession sued out, be set aside, and a writ of restitution issue, on payment of costs. EDMUND KIRBY . SAMUEL COGSWELL. Stay of Proceedings Certificate of Probable Cause Notice of Motion. was an action on a promissory note by - the indorsee against the maker. It appeared on the trial, which took place during the last Albany circuit, that the plaintiff was one of a firm, and had indorsed the note, in the name of the house, to himself, and now sued in his individual capacity. On this account an ob- jection was taken, the defendant insisting that the plaintiff could not by his indorsement in the style of the co-partnership, transfer to himself, in his private character, the note so as to give a right of action. This, however, being overruled by His Honor, Mr. Justice Kent, the defendant, within the time limited by rule, made a case, and served it on the plaintiff's attorney. He, observing it to be incorrect, made another, detailing the facts accurately, 321*J and *also serve his end, titling it an ' 'amended case. " (See Milward v. Hattett, ante p. 261.) On the of November last, being the first day of November Term, the plaintiff filed his certificate of trial, nisi prius record, with the postea indorsed, jury process, and entered a rule nidi for judgment. On the 8th of No- vember, the defendant taking no notice of the case intended as an amendment, obtained, on his own statement of facts, a certificate from Mr. Justice Kent to stay proceedings. This, with a copy of his case, but without any no- tice of motion, he served the next day on the plaintiff's attorney, observing to him, at the same time, that the amendment, according to the practice of the court, ought to have been proposed and not sent in the shape of a new case. The plaintiff's attorney then offered to make a fair statement, as should be agreed on, alleging his ignorance of the strict'rules of making a case. The defendant's attorney seem- ing to evade this, the plaintiff, on the 16th of COL. AND CAINES. November served a copy of a bill of costs in the suit, with the regular notice of taxation, which he proceeded to execute, signed judg- ment, and issued & fen facias. Mr. Van Antwerp now moved to set aside the judgment and all subsequent proceedings, in- sisting that the certificate of the judge was a complete stay, without any notice of motion annexed; for the plaintiff had, as well as the defendant, a right to bring on the argument on the case. Per Curiam. The question is, as to the op- eration of a certificate of probable cause to stay proceedings. The 4th rule of January, 1799, settles that *at the time of service of [*322 the order, it must be accompanied with a no- tice of motion. The right of the opposite party to .notice for argument does not take away the necessity of notice; for the mere cer- tificate itself is no stay. The defendant, there- fore, can take nothing by his motion, and must pay the costs of the present application. MANHATTAN COMPANY v. BROWEH. Confession of Judgment Defendant in Custody Advice of Attorney. THE defendant in this suit being in custody on mesne process, executed a warrant of attorney to confess judgment for the amount of the debt, but it was not witnessed by any person as his attorney, acting in that capacity for him. Mr. Hoffman, on this ground, moved to have the warrant of attorney delivered up to be can- celled, and to vacate the judgment entered. Mr. Hamilton, contra, read some affidavits, showing that the defendant at the time of exe- cutingthe instrument, was perfectly well ap- prised of its nature, which had been ex- plained to him *by an attorney, though not actually his attorney, or the attorney of the plaintiffs, and that the whole transaction was bonafide, and without surprise. The inclination of the court appearing to be against the application, the proceedings hav- ing been within the spirit of the rule relied on ; and, it being suggested at the bar that it was doubtful whether the English rules of E, 15 Car. II. and E. 4 G. II. had ever been made a rule of this court, though the practice *was [*323 acknowledged to have been in conformity to its regulation," Mr. Hoffman consented to withdraw his mo- tion, and let the judgment stand as a security for the debt, the plaintiffs delivered a declaration, and agreeing to go to trial on the merits. ' 1. In Hutson v. Hutsoii (7 D. & E., 8), the Court of King's Bench, held that the benefit of the English rules referred to, could not be waived by a prisoner, and that the presence of the plaintiff's attorney was insufficient, though acting- for the prisoner at his re- quest and entreaty, and though pressed to send for another attorney to witness the instrument, with the nature of which the defendant was perfectly ac- quainted. 155 323 SUPREME COURT, STATE OP NEW YORK. 1804 STEPHEN ROSS ET AL. v. NEHEMIAH HUBBLE AND JEMIMA his Wife, Administratrix of ICHABOD PATER- SON. Default Trespass Entry of Appearance by Attorney Laches of the Clerk. was a motion to set aside the default J- entered in the cause, and all subsequent proceedings, with costs. The affidavits contained a variety of unim- portant facts, but the only question, worth no- ticing, which was relied on, was one of prac- tice, whether it was regular to a writ, which was in trespass only, and returned with the names of the defendants indorsed, to enter their appearance in the clerk's office, after judgment was signed. It was contended that, as the court would order it to be done on application, it was, in fact, doing no more than that, which the court would sanction. 324*] *Per Curium. It is said that no ap- pearance of the defendants, by special or com- mon bail, or an entry of appearance, was of record, when the default and judgment were returned. As the process in the cause did not require bail, the defendants indorsed their ap- pearance on the cfipias. It was the business of the clerk, and not of the attorney, to have en- tered their appearance. This may be done mine pro tune. The laches of the clerk ought never to prejudice the attorney. We there- fore deny the motion, with costs of opposing. HENRY WARERBERY ET AL. JOHN DELAFIELD. Commission In Consolidated Cause Heading Evidence in Principal Suit. THIS was the principal suit in several ac- tions on a policy of insurance, in which a consolidation rule had been granted. A com- niission to examine had been taken out, titled in a consolidated cause; in the commission the defendant joined and titled his cross interroga- tories in the same manner. Mr. Hoffman moved to read, in the principal cause the evidence taken under commission titled in that which had been consolidated. The court, after some words by Pendleton, in opposition, granted the motion, with cost to abide the event of the suit. DAVID GORDON survivor of JOAN MUNRO and DAVID GORDON v. WALTER BOWNE. Appearance Nunc pro tune Set-off Assign- ment. THIS was an application for leave to file the cfipias, and enter the defendant's appearance nunc pro tune as of the last August Term. 1M *The facts as they appeared on the sev-[*325 eral and long affidavits read, were,that the plaint- tiffs were the assured on a policy of insurance underwritten by the defendant; that, being in embarrassed circumstances, and unable to meet their payments, they entered into a com- position with their creditors, of whom the de- fendant was one, to pay them, on receiving a release from all demands, fifteen shillings in in the pound, ten shillings to be paid by ap- proved indorsed notes, and the remaining five shillings, by their own; the indorsers to re- ceive an assignment of a part of the property of the plaintiff and his partner, by way of security against their indorsements; that in pursuance of this agreement the defendant received his two notes of ten shillings and five shillings in the pound, executed a release, and the policy in question was assigned to persons for whose benefit the present action was brought; that the note for ten shillings in the pound was duly paid by the assignees of the policy. The attorney for the plaintiff called on the defendant, a few days before August Term, to inform him of the intended suit, when defendant assured the attorney that the matter would be accommodated, ana if not that he would consent to proceedings being as of August Term; that a capias was afterwards sued out on the second of August last, return- able the sixth, but not served till after August Term, at which time the defendant indorsed his appearance, and as the plaintiff's attorney verily believed, with intent that all proceed- ings should be deemed as of August Term ; that the declaration was titled as of August Term, though the capias has not been yet filed; that since August the plaintiff has be- come a bankrupt, and that the defendant had pleaded, giving a notice of setting *off [*32G a note which fell due on the 8th of September last, and was the very note for five shillings in the pound given by the plaintiff and his part- ner, in composition for their debts. Mr. Hoffman insisted that the indorsement of the writ by the defendant, was tantamount to a written agreement, as it was evidence in writing of the agreement, which was further corroborated by the pleadings. SPENCER, J., delivered the judgment of the court: The defendant resists the application, relying principally on this: That he holds, to nearly the amount of the plaintiff's demand, a note against him due on the 8th of September last, which he intends to set-off. The object of the plaintiff's motion, is, if possible, to exclude this effect; on this ground, that his demand is assigned for the benefit of certain persons who have paid debts for him, incurred by indorse- ments to his compounding creditors. The de- fendant denies notice of such assignment; both parties admit the insolvency of the plaintiff. The verbal agreement between the attorney for the plaintiff and the defendant cannot be attended to; a rule of this court for- bids such agreement being alleged. There has been laches on the part of the part of the plaintiff, in not entering his suit as of August Term, and to avoid that laches the court is now applied to. In granting favors of this kind, the court ought to be careful not COL. AND CAINES. 1804 MASTERS v. EDWARDS. 326 to do injustice, and it appears to them, that granting the rule as applied for, might have that effect; for, most certainly, the defendant's claim to offset is better founded than that of 327*] the assignees to recover. *Let a rule be entered that the plaintiff have leave to file his writ, and enter the defendant's appearance as of the last term. THOMPSON, J. I am sorry to be under the necessity of differing from the court; but I think the indorsement of appearance is evi- dence of an agreement as strong as if it had been reduced to writing, and sufficiently indi- catory of the intent of the parties to avoid any of the consequences against which the rule in question was framed. How far the defendant may, by filing the capias, and enter- ing an appearance of August Term, be pre- cluded from a set-off, or by the present rule entitled to it, is unnecessary to determine. My opinion is that the plaintiff ought to have the effect of his motion. KENT, J. I concur in the opinion last given. I deem it a point of moral rectitude to enforce all agreements, when the evidence is such as is not contravened by any rule of law. But as the judgment of the court is to deny the full extent of the plaintiff's application he can take no more than has already been pro- nounced. MASTERS v. EDWARDS. Sail Exoneretur Surrender Svpersedeas Not charged in Execution. Distinguished Branting-ham's Case, Col. Caa., 48. THE defendant had been surrendered in ex- oneration of his bail, final judgment ob- tained against him, and after three months he was, on regular notice to the plaintiff, super- seded for want of being charged in execution in due time. Notwithstanding this, the plaint- iff's attorney sued out an execution against the "body of the defendant, upon the judgment on 328*] which *he had been in custody, and took him upon the ca. sa. thus issued. Mr. Henry, on these facts, disclosed by affida- vit, moved that he should be discharged. This case is to be distinguished from that of Brant- ingham: in that the court held the plaintiff en- titled after notice of a rule fora supersedeas, to come in, charge in execution, and show that circumstance as a cause for refusing the appli- cation. Blandford v. Foote (Cowp., 72) recog- nizes the principle of the application. The court there decided, that a man released for want of being charged in execution might be taken on a ca. sa. in an action founded on the judgment, in the original suit. It is to be in- ferred, therefore, that on an execution sued out in the original suit, he could not be taken. Messrs. Benson andfiiggs, contra. The English courts proceed on this maxim: "once super- sedeable, and ever supersedeable." This we have departed from, and overruled in Brant- ingJiam's case. Besides, the whole object of the motion is to prevent us from doing that directly, which they allow we can accomplish circuitously; for they say, we must proceed by !AY TERM, 1804. JOHN R. LIVINGSTON v. THE COLUMBIAN INSURANCE COM- PANY. Struck Jury Important or Intricate Cause Citation Ante., 311. BOGERT, in behalf of the defendants, moved for a struck jury in this cause, on an ac- 1. Consisting of only Kent and Thompson, Jus- tice*, no others giving any opinion. 2. The multiplicity 01 cases from the justices' courts will excuse the insertion of the following determination, by which it was decided that they have no jurisdiction under the Joint Debtor Act. JAN CAB Y TERM, 1799. JOSIAH JONES AND JOSIAH CRAWFORD . DAVID REID. Justice*' Court Jurisdiction Joint Debtor Act. Per Curiam. It is clear and salutary principle, that inferior jurisdictions, not proceeding accord- ing to the course of the common law, are confined 160 SALAH STRONG ET AL. v. ZEBULON SMITH. Trespass Before Justice Plea of Title-*- Gen- eral Issue Costs 1 Rev. Laws, 491 1 Rev. Laics, 494. THIS was an action of trespass commenced before a justice of the peace in the County of Suffolk, under the "act for the more speedy recovery of debts to the value of twenty-five dollars." (1 Rice Laws, 491.) The defendant justified under a plea of title. Upon this, proceedings were stayed before the jus- tice pursuant to the tenth section of the act (Ibid., 494), and the action prosecuted before the Court of Common Pleas; from thence the defendant removed it by habeas corpus into this court, where he pleaded, 1st. The general issue. 2d. That the closes mentioned in the declaration were the freehold of the trustees of the freeholders and commonalty of the town of Huntington, and that by their command and direction, he entered. 3d. That the trus- tees of the freeholders of the town of Hunt- ington were seized of the premises, and granted him a lease for a year, by virtue of which he entered and was possessed until the plaintiffs, by colour of title, turned him out, on whom he again entered, and committed the trespasses complained of. A suggestion of these circumstances, according to an inti- mation on a former day given by the court, having been entered *on the record, [*341 an application was now made to compel the defendant to strike out his plea of the general issue, and rely on his title only. Mr. Riggs for the plaintiff. Mr. Sfindford for the defendant. strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them in every instance. The sound rule of construction, in respect to jus- tices' courts, is accordingly this : to be literal in reviewing their proceedings as far as respects regu- larity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute. To apply these principles to the present case : The act making joint debtors answerable to their creditors separately, and giving a new mode of pro- ceeding, is posterior to the act granting civil juris- diction to justices of the peace, and makes no mention of them. It directs that process shall issue against the joint debtors in the manner then in use, nnd if either be; taken and brought into court, he shall answer. This act contemplates, in every in- stance, a compulsory process on which the defend- ant is taken and brought into court and until that be done the court cannot proceed in the cause ; COL. AND CAINES. 1804 CORNELIUS J. ROOSEVELT v. DANIEL KEMPER. 341 Per Curiam. The construction of the act no doubt is that when a defendant, sued for a trespass before a justice, relies on his title, he admits the trespass. But lest the title should be in a third person, the act gives him a right to show that also. Either one or the other acknowledges the trespass. To this, as the whole matter appears on the record, it would not be permitted the defendant on the trial of nisiprius to say the contrary, nor would the plaintiff be called on to prove the trespass done. The general issue, then, is perfectly nugatory, and must be struck out, but not with costs. SPENCER, J., dissentient. CORNELIUS J. ROOSEVELT v. DANIEL KEMPER. Inquest Affidavit of Merits. rpHE plaintiff had in this cause taken an JL inquest at the last circuit, the judge lay- ing it down as a general rule that any party might take an inquest, but at his peril. Mr. Harwon moved to set aside the inquest on a simple affidavit of merits. J342*] *Per Curiam. Whenever an inquest is taken, it is at the risk of the plaintiff, and on such an affidavit as the present, must set aside, with costs. N. B. The court seemed to intimate that counter depositions of a want of merits could not be received, as it would be trying a cause on affidavits. FREDERICK DEPEYSTER WILLETT' WARNE. Default Judgment Notice of Retainer Stipu- lation not to me for False Imprisonment. HARISON moved to set aside the default, interlocutory judgment, and all subse- quent proceedings, on affidavits of the defend- ant's attorney and his clerk, stating notice of retainer served at the office of the opposite attorney, which was acknowledged to have been received by a person then in the office of the plaintiff's attorney, and acting either as clerk, agent or partner, and also setting forth service of notice of special bail having been filed, an entry of which, and of service of re- tainer, was made in the register of the depo- nent. Mr. Evertson opposed the application on an affidavit made by himself, stating the debt to be on a promissory note, in which there was no defence, and that if the defendant could make any, he had several times offered to give up the judgment. That the person mentioned in the affidavits on behalf of the defendant as being a clerk, agent, or partner, was neither the one nor the other; that neither the defend- ant nor any of the clerks knew of any person being retained as an attorney for the defend- ant, though in the register *of the de- [*343 ponent, was entered a receipt of a service of notice of bail. That the defendant was in execution, and an insolvent. From these cir- cumstances, and because the defendant had not sworn to merits, it was contended that the default and proceedings ought to stand. Per Curiam. There is strong reason to be- lieve that notice of retainer was duly served, and though no merits are sworn to, we cannot depart from our rules. Let the default, judg- ment, and all subsequent proceedings be set aside, with costs; but on condition that the defendant does not bring any action for false imprisonment. VALENTINE BAKER AND GERARD S. SLOANE v. HENRY SLEIGHT, Esq., Sheriff of the County of Ulster. 1. Change of Venue Transitory Suit. 2. Idem Local Influence of SJieriff. T?VERTSON, on an affidavit not specifying -CJ the ground of action, moved to change the venue from the County of Dutchess to that of Ulster. Mr. Hopkins opposed it on a counter affidavit, stating a belief, that in consequence of the in- fluence the defendant possessed in Ulster, from his office, a fair and impartial trial could not be had there. He insisted also on the defect- iveness of the plaintiff's affidavit, in not set- ting forth the ground of action, and that it ought, therefore, to be presumed, it was not a transitory suit. Per Curiam. The court cannot intend that the action is not transitory, it ought to have been shown *by the defendant, and [*344 the influence of a sheriff's office, never can prevent an impartial trial. Take your rule. whereas, the ten pound act, giving civil authority to justices, intends only a summons in the first in- stance against freeholders and inhabitants, having families, and if the summons was personally served and the defendant does not appear, the justice can- not compel him, but is to proceed and try the cause without his either being taken or brought into court. The joint debtor act, accordingly, gives a power and jurisdiction different from and unknown to the ten pound act. So in respect to executions the joint debtor act directs, that the execution shall be against all the debtors; but shall not, however, issue against the body or sole property of the one not taken and brought into court. Whereas, by the OL. AND CAINES. N. Y. REP., BOOK 1. ten pound act, execution is directed to go against the entire goods and chattels of the person against whom it is granted, and for want of sufficient goods of such person, to take his body. Here are new powers and new modes of proceeding, applicable to the courts of common law, and contrary to the ex- press forms and directions given to the justices' courts, and in which no mention is made of them. We are, therefore, of opinion, that, according to the settled rules of interpretation, justices of the peace have no jurisdiction in the case of joint debtors, unless both are duly served with process, and, therefore, that the judgment in this case must be reversed. 11 161 344 SUPREME COURT, STATE OP NEW YORK. 1804 AARON PELL t>. GEORGE BUNKER. Commission Not returned from Europe Trial. IN this cause Mr. Hawes moved to vacate, in part, a commission sued out in November last, so as to go to trial notwithstanding, at the next circuit. Mr. D. A. Ogden opposed it on the ground that eight months had not elapsed since it was issued, and relied on this as the established practice, in cases of commissions to Europe. Per Curiam. Granting the motion will do no injury; the time may or may not elapse be- fore the cause is brought on, and it does not prevent, even then, the showing of cause further to postpone the trial. COTES, TITFORD AND BROOKES v. JAMES THOMPSON. Nonsuit Under Stipulation to Try Lost Com- mission found New Stipulation Costs. THE court had the last term denied a motion for judgment, as in case of nonsuit for not proceeding to trial, on the plaintiff's stipu- lating to try at the last sittings for the city and county of New York, nine months having elapsed since issuing the commission in the cause. The plaintiffs not having proceeded agreeably to that stipulation, Mr. Boyd moved again for judgment as in case of nonsuit. 345*] *Mr. Munroe, contra, read an affidavit stating the commission to have been mislaid by the defendant's commissioner; it is now found, and is shortly expected to be returned. Per Curiam. Ike motion must be refused; but the plaintiff must pay costs and stipulate anew. ANONYMOUS. Stipulation Costs. THE court intimated that when a stipulation is offered, before notice of motion, then costs will be allowed up to the time of offer. When after notice, and before actual applica- tion, up to that time. But when not till the court is applied to, then all costs must be paid. ANONYMOUS. Judgment Frivolous Demurrer Notice of Ar- gument. IT was ruled by the court, that to take the effect of a motion for judgment when a frivolous demurrer is put in, notice of bring- ing on the argument must be given. THE PRESIDENT AND DIRECTORS OP THE MANHATTAN COMPANY v. STEPHEN MILLER. Replication Special Plea Counsel. S was an action on a promissory note in -L which the plaintiff had duly appeared by attorney, and the defendant pleaded a judg- ment recovered. To this the plaintiffs replied; but in their replication began, "And the said president and directors of the Manhattan *Company say,"&c., without mention- [*34-O ing by attorney, and so went on negativing the whole plea, without having their replica- tion signed by counsel, concluding to the country, 1 and adding the similiter on which they went to trial and took an inquest. Mr. Woods, on an affidavit stating these facts, moved to set the inquest aside for irregularity. Mr. Bogert, contra. The replication is in the usual form. It is a mere negation of the plea without alleging any new fact, and therefore not a special pleading. Besides, the name of a counsel is indorsed on the back. Per Curiam. There was no occasion for a counsel's hand; unquestionably the plea is not special. If it was, there is the name of coun- sel indorsed. Besides, had it been so, it ought not have been retained. Let the de- fendant take nothing by his motion, and pay the costs of resisting the application. SIMONDS' v. CATLIN. Judicial Sales Validity Irregularity Ft. fa. in Another County with Testatum Fi. fa. Tested out of Term No Sheriff's Deed. Citations Black. Rep., 897 ; 3 Burn, and East, 388 ; Barnes, 209 ; 2 Salk., 700 ; 7 Mod., 30 ; Latch., 11 ; T. Jones, 150 ; 1 Stra., 137, 138 ; 2 Rev. Laws, 283. THIS was an ejectment for lands in the County of Onondaga. Upon the trial the plaintiff produced the ex- emplification of a judgment of this court, in the cause of Levi Barker against the defend- ant for debt, and entered of the term of July, 1800, in which cause the venue was laid in Albany. He further produced the exemplifi- cation of a fi. fa. directed to the sheriff of *Onondaga, and tested the 9th day of [*347 August, 1800, commanding him to levy the debt and costs of the above judgment, and which execution contained an indorsement of being received by the sheriff on the 4th of Oc- tober, 1800. It also contained a return an- nexed, in the words following, viz: "I, Levi Sherman, under sheriff to Elnathan Beach, Esq., late sheriff, deceased, do, in pursu- ance of the law, and in consequence of the death of the sheriff, return, that the said sheriff sold at vendue, all that farm or tract of land in the town of Pompey, in the said county, in the occupancy of the defendant, some time in January, 1801, and before the 15th, to one 1. See Sandford v. Rogrere, 2 Wils., 113 ; 2 Tidd's Prac., 673. See also Esplin v. Smallet, Say., 208. COL. AND CAINES. 1804 SIMONDS v. CATLIN. 347 Ebenezer Butler, Junior, he being the highest bidder, for 26 dollars. That the said Butler did not pay the money for the same; and by order of the said sheriff, I did, on the 22d day of January aforesaid, expose the said land to sale again, and that Joseph Simonds pur- chased the same for 50 dollars, he being the highest bidder. That the said sheriff died on the evening after the vendue last aforesaid, and before the said writ was returned. And I, the said under sheriff, do make this return, this 23d January, 1801. LEVI SHERMAN." The plaintiff further proved that the defend- ant, at the time of the sale, and at the com- mencement of the suit, was in possession of the premises. The defendant then moved for a nonsuit, and was overruled. He then offered to prove that the sale to E. Butler, Junior, was not a ready money sale, but at a credit, and that Butler had always been ready to pay, and that 348*] the second *sale was made at the solicitation of the lessor of the plaintiff, who was the attorney in the original cause, without any notice by advertisement, and on his in- demnity to the sheriff, who was then on his death-bed, and incompetent to attend to his business, and that the lessor of the plaintiff knew of the previous sale. The defendant further offered to prove that the indorsement on the execution was made in May, 1802, at the request of the said lessor; but the testi- mony was overruled. The defendant then of- fered in evidence a deed from the said Elna- than Beach to the said Butler, for the prem- ises, in pursuance of the first sale, bearing date the 7th day of August, 1801, and to which deed was annexed a certificate of proof of the same before a master, by the acknowledgement of the said Levi Sherman, that he executed the same in the name of the said Beach, and as under sheriff to the same, the said Elnathan being dead, which evidence was likewise over- ruled, and a verdict taken for the plaintiff. Upon this case a motion was made to set aside the verdict for these reasons: 1. That a fi. fa. issuing into a different county than that in which the venue was laid, without a testatum is void. 2. That the fi. fa. bore test out of term. 3. That there is no deed from the sheriff to the plaintiff. 4. That the return of the sale contains evidence of a void sale. 5. That the evidence offered at the trial ought to have been received. Per Curiam, delivered by KENT, J. The two first objections go to the form of the execution, and considering the circumstances at- 349*] tending this case, the *plaintiff ought, in justice, to be held strictly to a legal title. He was the attorney who sued out the execu- tion, and the second sale was made on short notice, if indeed any notice was given, and he himself became the purchaser. The plaintiff is, therefore, properly chargeable with notice of every irregularity attending the execution. Prior to this motion, a rule was granted to amend the/, fa. by making it a testatum, but as the rule was granted upon the express con- dition of being without prejudice to the ob- jection to be raised in this case, and which wa then pending for argument, the court are jus- tified in putting the amendment out of view. And there can be no doubt but that the./?, fa. COL. AND CAINES. ought to be set aside for irregularity, on the ground of the first objection, as the cases of Allen v. Allen, and Brand v. Mears (Black. Rep., 697; 3 D. & E., 388; See also Barnes, 209), go that length even after execution exe- cuted. The second objection to this fi. fa. that it bears test out of term, is equally well taken. (2 Salk., 700; 7 Mod., 30, Latch. 11; T. Jones, 150; 1 Stra., 137, 138.) The process for that reason is held to be void, and the party suing it out cannot take advantage of it, although it may justify the sheriff, and if the case be within the reach of an amendment, yet as the amendment must always be a matter of sound discretion, I should not be inclined to grant it in the present case, for the reasons I have sug- gested. The next objection goes to the merits of the case, and is founded on the want of a convey- ance from the sheriff. This is a question of importance and difficulty. It has been attend- ed with doubt and embarrassment in my mind, but I have come to the opinion *that [*35O the estate of a defendant cannot pass at a sheriff's sale but by deed or note in writing, to be signed by the sheriff, as the party or agent who passes the estate. The act directing the sale of real estates on execution is silent as to a conveyance from the sheriff; and yet a conveyance upon such sales is dictated by the same policy that ap- plies to all other alienations of land. Without a deed or note in writing, there would be no written document of the sale; for, in the first place, it is not requisite to the validity of the proceedings on execution, that the writ should ever be returned: nor is it requisite, even if a return be made, that the sheriff should specify with certainty the particular lands sold, or the name of the purchaser. It would be sufficient to state, that of the lands and tenements of the defendant he had caused to be made the debt and damages specified in the writ, as he was thereby commanded. If, therefore, the estate passes upon the sale, with- out any writing whatever, the general policy of the law would, in this' instance, be contra- vened, and would be productive of manifest public inconveniences. In the county where the lands in question lie, every iconveyance, whereby any lands in that county may be in any way affected in law, or equity, shall be deemed void against any subsequent purchaser or mortgagee for valuable consideration, unless recorded. (2 Rev. Laws, 263.) The present case is not within the act, because here is no subsequent purchaser to contend with, but cases of that kind must often arise, and if sheriffs' sales be not within the provisions of the act, it would work very great imposition and fraud. A purchaser would go to the re- cords, and if he found no conveyance *from the defendant, he would natur- [*351 ally conclude he might purchase in safety. But if the sheriff's sale is to defeat him, he would in vain seek for the evidence of it. The purchaser from the sheriff has nothing to show. There is even wanting the livery of seisin, which in the simplicity of ancient times, and before writing was much in use, was held indispensable to the transfer of an estate. He could only ascertain the fact of the 103 351 SUPREME COURT, STATE OF NEW YORK. 1804 sale by the sheriff, from searching after and examining those who may happen to have been eye-witnesses of the transaction. I cannot think that the law intended to induce such in- convenience, and uncertainty. If we were to judge of the sense of the Legislature from the various other cases in which the law is explicit and which are cases in part material, it would leave .no doubt on this question. All sales made by the surveyor-general at auction, by order of the commissioners of the land office; sales of land by order of the Court of Probate, for payment of debts ; sales at auction by loan-officers, of lands mortgaged to them, and sales by sheriffs for quit rents, by virtue of process from the Exchequer (and this last is a case perfectly analogous to the present) are re- quired to be completed by a formal conveyance from the public officers. (1 Rev. Laws, 274, 280, 289, 295, 298, 299, 302, 324, 610.) It ap- pears to me that sheriffs' sales must be within the statute of frauds, which declares that no estates of freehold, or terms of years, shall be granted, but by deed or note in writing, or by act and operation of law. (1 Rev. Laws, 79.) I need not undertake to show that a sheriff's sale is not an act and operation of law, within the meaning of this statute. These words are strictly technical, and refer to certain definite estates, such as those by the curtesy and dower, or those created by remittitur. It has 352*]*been said by Lord Hardwicke (1 Ves., 221), that a judicial sale of an estate took it entirely out of the statute. The reason why it is out of the statute I do not so well compre- hend ; it is not because the sale is at auction, for it is settled that those sales, if they relate to land, are within the statute of frauds. Nor does a sheriff's sale appear to me to be in its own nature free from all danger of introduc- ing fraud or perjury, and so not within the mischief intended to be prevented by the stat- ute. The case in which Lord Hardwicke is said to have ruled as broadly as I have stated, is quite obscurely reported. (1 Bos. & Pul., 307; 1 Esp., 101; 1 Powell, 271, 272.) The agree- ment must have been made before the master, or acquiesced in, in court; and it seems to have been more like a consent upon record, than anything else. At any rate, I cannot consider that observation in chancery as a sufficient authority to set aside the plain letter of the statute. I apprehend the general practice has been different; and that upon sales under the direc- tion of a master in chancery, as well as sales by sheriffs at law, the sale has uniformly been consummated by a conveyance. Tliis general usage ought to have great weight in a case where a statute is susceptible of two constructions; and especially, when the literal interpretation and perhaps the reason of the thing, are in favour of the construction adopted in practice. The minute provisions in our statute regulat- ing sales on execution, and even the facts in 353*] the very case *before us, are sufficient to show that these kind of sales are equally within the danger of the mischiefs which the acts ought to prevent. The Court of Chancerv itself has latterly admitted (3 Vez., 712) that it had gone rather too far in permitting part per- 164 formance and other circumstances, to take cases out of the statute of frauds. I am of opinion, therefore, that a sheriff's sale is within the statute of frauds. There was an ancient principle of the com- mon law that would, if it applied, have super- seded the necessity of a deed. It was a rule that where a thing took effect out of a naked power or authority, it was good without deed ; but where a thing took effect out of an interest there it must be by deed, if incorporeal; and by livery if corporeal. In pursuance of this rule it hath been held that if executors be ordered in a devise to sell land, they may do it by deed or by parol, because the vendee takes under the devise and not under the conveyance of the exec- utors; according to the principle, that who- ever claims under the execution of a power, must make title under the power itself. Whether this principle would or would not have applied to the present case I need not now examine, for admitting that it did, I am satisfied that the statute of frauds has done it away. The only remaining inquiry upon this head is whether the return of the under sheriff was not a sufficient deed or note in writing within the act? But there are several objections to this return. In the first place it is not in pur- suance of the statute a return in the name of the sheriff. It is expressly a return in his own name. When a *man acts in contem- [*354 plation of law, by the authority and in the name of another, if he does an act in his own name, although alleged to be done by him as attorney, it is void. In the case of J?rontm v. Sinall, the attorney executed a lease in her own name, although stated to be made for and in the name of the principal, and the lease was held to be void because made in her own name. This case was recognized as good law, so late as the case of Wilk v. Back. This return is not, therefore, an act of the sheriff, of which we can take notice. But admitting it to have been nade in the name of the sheriff, it could not be a sufficient deed or note in writ- ing of the sale, because it has not the requisite certainty. It does not- appear what estate was sold, whether an estate for years, for life or in fee, nor is there any certainty as to the thing sold. It is stated to be all that farm or tract of land in Pompey in the tenure and occupa- tion of the defendant. But there is no kind of estimation of the quantity of land sold, nor in what part of the town it lays, or how marked and bounded. I do not mean to be under- stood to say that a note in writing of a sheriff's sale must be precise as to the quantity of acres, and as to the metes and bounds, but the thing sold must in all cases be specified with so much precision as from the description it can be reduced to certainty, and especially in the case of sheriff's sales; for it was decided, Jackson, ex dem. Jones v. Striker (Oct. Term, 1799), that at such sales no property could pass but what was at the time ascertained and declared. This appears to me to be an excel- lent rule to prevent fraud and speculation at such sales, and I should be sorry to see it im- paired. *A general sale by the sheriff [*3I>J> of all that tract of land in the town of Pompey in the tenure and occupation of the defendant does not appear to me to comport with the rule. It might as well have been all that tract COL. AND CAINKS. 1804 CYRUS JACKSON v. RODOLPHUS MANN. 355 of land in the county in his possession. I am of opinion, a more definite description of the situation and amount of the land and of the quantity of the defendant's interest therein, ought to have been stated, and that the evi- dence of this sale, even admitting it to have been duly made by the sheriff, has not the re- quisite certainty. In England, when the sheriff extends lands by elegit, he returns an inquisition, specifying the farm, the number of acres, the metes and bounds, the value, &c. Yet the statute of West. (2. 13 E. I., c. 18) which gave the elegit, only required in general, that the sheriff de- liver one half of the defendant's land, until the debt be levied upon a reasonable price or extent. If, however, all the objections hith- erto raised, had been surmounted, I am of the opinion that the evidence offered on the part of the defendant at the trial, ought to have been received, to show the sale was fraudu- lent and void. The evidence went to show, that the first sale was valid and binding, and had been carried into effect by a deed from the sheriff. That the second sale was made, at the solicitation of the plaintiff, without any notice by advertisement, on his indemnity to the sheriff, who was then on his death bed, and incompetent to do business. These cir- cumstances ought to have been left to a jury, 356*] to draw *such inference from them as the case required, and it is not to be dis- puted but that the whole sale may be rescind- ed on ground of fraud. For these rea- sons, I am of the opinion the verdict ought to be set aside, with costs to abide the event. Gated 35 Barb., 623 ; 1 Lans., 411. AUGUST TERM, 1804. CYRUS JACKSON. RODOLPHUS MANN. 1. Nonsuit Absent Witness Stipulation. 2. Costs Attachments, HENRY moved for judgment, as in case of nonsuit, for not proceeding to trial, and also for costs of the last circuit, and those formerly ordered, on an affidavit, stating a a similar motion in a former term, in which the expense of witness only was allowed, as the cause had been countermanded by con- sent; that these costs had been demanded and not paid, after which the cause was again noticed, but neither the plaintiff nor his wit- nesses attending at the circuit, the defendant requested that he and his witnesses might be discharged, which, however, the plaintiff's attorney absolutely refused. Mr. Van Yeveren, contra, read an affidavit, setting forth that the plaintiff had duly sub- poenaed one Obadiah Phelps, his principal witness, but that he did not attend, and was, as the deponent verily believed, kept away by the contrivances of the defendant. He in- 357*] sisted * also, that as notice of trial for the last circuit was accepted, the COL. AND CAINES. defendant had waived his right to the former costs. If the court should be against him on these points he hoped they would grant an attachment against Phelps, whose contempt in disobeying the subpoena, was the cause of not proceeding to trial. Per Curiam. The absence of the plaintiff's witness is sufficient to induce us to refuse the application for a nonsuit, and even to excuse him from stipulating; but as he is in contempt for not paying the costs formerly ordered, let him pay those of the last circuit within twenty days after due demand ; in default thereof the defendant to be at liberty to enter up judgment as in case of nonsuit. As to those costs which on the former occasion were allowed, we do not take them into con- sideration, the defendent having it in his power to enforce them by attachment ; and with respect to the attachment prayed for by the plaintiff, it is not usual to grant one in the first instance, unless some wilful disobe- dience to the authority of the court is made to appear; the plaintiff, therefore, can have only a rule to show cause. JAMES JACKSON, on the demise of DAVID VAN BERGEN ET AL. , . SAMUEL HAIGHT. Nonsuit Trial not had Necessary Papers not Attainable Costs. SCOTT, on affidavit stating his cause had been duly noticed for the three last cir- cuits, and that younger issues had been tried, moved for judgment as in case for nonsuit, for not proceeding to trial at the last circuit in Green, persuant to notice. *Mr. Champlin resisted the applica- [*358 tion,on a deposition setting forth that the papers necessary for the defense had been left with him for eight months previous to the circuit, to use at the trial; but that they had been, two weeks before it was to have been held, taken from him by the person from whom he had re- ceived them, under a promise to return them be- fore the time the cause would come on. That the title depended on the Catskill patent; from the great length of the documents, and exemplifications in which, the expense of copies was so great, as to render the saving it an object of importance. That in all other respects the defendant was ready for trial, and now relied on these circumstances being received as sufficient excuse. Mr. Scott, in reply, urged that the benefit of the papers might have been had by a subpoena diices tecum. Per Curiam. We think the excuse suffi- cient to prevent a nonsuit, but not to relieve from costs; let, therefore, the defendant take nothing by his motion, on the plaintiff's pay- ing costs, for not bringing the cause to trial at the last circuit. 165 SUPREME COURT, STATE OF NEW YORK. 1804 SOLOMON CHANDLER ET rjx. v. WILLIAM W. TRAYARD. Non-enumerated Motion New Trial Newly Discovered Evidence. SCOTT endeavoured to bring on, as a non- enumerated motion, an application for a new trial in this cause, on an affidavit of newly discovered evidence. 359*] *Per Curiam. It is clearly an enu- merated motion, and cannot be heard this day. JACKSON, ex. dem. JOHN L. NORTON ET AL. , 1). GEORGE GARDNER. Nonsuit Trial not had Notice of Trial Suffi- ciency of Affidavit. VAN VECHTEN moved on the common affidavit for judgment, as in case of non- suit, for not proceeding to trial, but the affi- davit of service stated only that it was made by leaving copies on the table of the attor- ney's office, about one o'clock in the after- noon. Per Curiam. The affidavit is defective; it does not set forth that there was no one in the office. The notice might have been slip- ped down without any intimation, and have remained there unobserved. To make such a service good, it ought to have been stated there was not anyone in the office. The de- fendant can take nothing by his motion. CASPARUS BAIN v. DAVID THOMAS and JAMES GREEN. Nonsuit Trial not had Verbal Agreement Withdrawal of Motion. T) USSEL moved for judgment as in case of XV nonsuit. Mr. Blanchard, resisted the application on an affidavit stating a conversation, which he con- sidered as an agreement to waive the irregu- larity. Mr. Russel wished not to rely on the rule re- specting written agreements, could the con- versation be substantiated. 36O*] *Per Curiam. The court cannot take notice of agreements between attorneys, unless reduced to writing. If it is intended to waive the rule on this subject, the motion must be withdrawn; otherwise judgment of nonsuit must be entered, unless the plaintiff stipulate and pay costs. 166 BERIAH PALMER, PHILIP H. SCHUY- LER and JOSHUA NELSON v. AMOS MULLIGAN, HERMAN MOODY, NOADIAH MOODY and WILLIAM GATES. Monsuit Trial not Juid Cane made in like Cause Costs Stipulation. VAN ANTWERP, on the common affida- vit, moved for judgment as in case of nonsuit, for not proceeding to trial. Mr. Woodworth, contra, stated that this was one of two causes depending on the same point. That in the other, a verdict had been given against the plaintiffs, contrary to the opinion and charge of the judge before whom the cause had been tried, for which reason the present suit had not been brought on, and a case was made in that which had been heard, and was now before the court. Mr. Van Antwerp, in reply. A case ought to have been made in the other cause. As it has not been done, it is a waiver of intention to rest on the point in the other. The plaint- iffs must, therefore, pay costs and stipulate; or we must have our judgment. Per Curiam. You are enitled to costs, but as there is a sufficient reason for not proceed- ing to trial, we shall not oblige the plaintiff to stipulate. *SPENCER, J. I think they ought [*361 to stipulate. There is a verdict in favor of the defendants which, till the contrary is shown, we ought to think correctly given. NICHOLAS BRADT BETHUEL WAY and HANNAH his wife. Nonsuit Trial not had Agreement to Arbi- trate Costs. VAN ANTWERP moved for judgment as in case of nonsuit, for not proceeding to trial according to notice. Mr. Van Yeveren read an affidavit stating, that previous to the circuit arbitration bonds had been entered into by the parties in the suit, and an award made. Per Curiam, let the defendant take nothing by his motion, and pay the cost of resisting this applicaton. N. B. It seems that wherever the affidavits contra disclosed circumstances that clearly show the application noticed will be ineffect- ual, costs for resisting will follow the denial. JARED STOCKING ELLIOT DRIGGS. Certiorari Action on Promissory Note Judg- ment Note not proved 1 Rev. Laws, 497. ERROR on a certiorari upon a judgment in a justice's court. COL. AND CAINES. 1804 THE PEOPLE v. THE JUDGES OF THE COURT OF COMMON PLEAS. 361 From the return, it appeared that the action below was brought against the now plaintiff, 3G2*] as the *maker of a promissory note for $20; that after a plea of nvn a&tumpsit, the defendant below prayed an adjournment, which being granted, the plaintiff, Driggs, ap- peared on the day given. The record went on thus: "And the defendant not appearing, although solemnly called, I, the said jus- tice, proceeded on the producing the said note by the said plaintiff, and gave judgment for the plaintiff on the said note, for the sum of,"&c. Mr. Williams for the plaintiff. Mr. W. Van Ness contra. Per Curiam. The judgment ought to have been "on hearing the proofs and allegations" (1 Rev. Laws, 497) of the parties. The judg- ment must, therefore, be reversed, for it was error in the justice to give judgment till he had proof of the note. THE PEOPLE. v. THE JUDGES OF THE COURT OF COM- MON PLEAS IN AND FOR THE COUNTY OF WASHINGTON. Mandamus Attachment Affidavit of Service. T^MOTT moved for an attachment against J-J the defendants for not obeying a per- emptory mandamus, commanding them to sign a bill of exceptions. 1 The affidavit did not state the service to have been when the court was sitting, or the persons on whom made. Mr. Champlin, for these reasons, objected to the application. 363*] *KENT, C. J. It ought to appear that the persons who were served were those who ought to have sealed the bill. Nothing can be taken by the motion. THE PRESIDENT AND DIRECTORS OF THE COLUMBIAN TURNPIKE v. ROBERT WOODWORTH. Penalty Riding through Toll-gate Force or Violence Suit for Toll. THIS was an action brought for the penalty under the ninth section of the act incor- porating The Columbia Turnpike Road, for simply riding through a gate without paying toll, without any force or violence. Per Curiam. The act had in contempla- tion only forcible and violent passages; the plaintiffs may sue for their toll, but this cer- tainly is not a case within the penalty of the section relied on. 1. See Games' Rep., vol. 1, p. 511. COL. AND CAINES. HENRY MASTERTON, Gentleman, one, &c. v. EVERARD BENJAMIN. Stay of Proceedings Bail-bond Laches. Col. Cos., 57, followed. VAN WYCK moved to stay proceedings on a bail-bond, under the following circum- stances: The writ in the original suit was sued out in last August vacation, returnable in the November following. Special bail was filed on the ninth of December then next, but no- tice of it not given. On the 5th of May, after a ca. ad. resp. was issued on the bail-bond, re- turnable in the then May Term, on which the bail in the principal suit were taken. On this, notice of bail having been filed, was given, with an offer of justification, which the plaint- iff, being satisfied of their *com- [*364 petence, waived. On this, the defendant, on the 6th of June, served the plaintiff with an order from the recorder of New York, to show cause before him why the proceedings on the bail-bond should not be stayed, and upon service, the plaintiff, without acting upon the order, agreed to the proceedings till the de- cision of this court could be had. Mr. Williams, contra, insisted the application ought to have been made the last term, and not to the recorder. This was, therefore, a laches not accounted for. Mr. VanWyckin reply, cited Cole. Ca. Prac., 57, 58 ; Cromp., 75 ; High on Bail, 54, 55. Per Curiam. The case in Coleman is de- cisive. Let all proceedings on the bail-bond be stayed on the payment of costs. THE PEOPLE, on the complaint of JARED BENNETT, v. AMASA KING. Certiorari Forcible Entry and Detainer Quashing Conviction Re-restitution Seizin or Possession of Complainant Grand Jury Sufficient number to find Offer of Defendant to Traverse. ON cerliorari upon a convictin for a forci- ble entry and detainer. Mr. Gold, for the defendant, moved to quash the conviction, and that a re-restitution issue, for the following reasons: 1st. For want of certainty in the description of the premises, they being described only as "tenements and improvements," without naming the county in which situated. 2d. Twenty-four persons were sworn upon the grand jury, who found the bill, so that more than twelve were neces- sary to *the finding. 3d. Because a [*365 challenge to a grand juror for having given a bond of indemnity 1 to the complainant, was overruled. 4th. Because the defendant was not brought into court before restitution awarded to traverse the indictment. 5th. Because, when 1. See Trelawney v. Thomas, 1 H. Black., 303. 167 365 SUPREME COURT, STATE OP NEW YORK. 1804 the defendant voluntarily appeared and offered to traverse, he was refused. 6th. Because it is not alleged that the complainant was seised or possessed of the premises. Mr. Henry, contra, opposed the issuing a writ of restitution, because the term under which the defendant claimed had expired. KENT, C. J. The inquisition and proceed- ings below must be quashed, and re-restitution be awarded. The last objection is fatal, within the decisions of this court, in Beebet ads. The People, in January Term, 1802. and Shaw ads. The People, August, 1803. (1 Caines, 125.) 1 think the second and fifth, also, are equally fatal. As to the objection that the term is ex- pired, and neither party have title, we cannot inquire into, and decide by affidavit in this way on the title or rights of the parties; the complainant below has nothing to do with that. He must give up the possession irregu- larly obtained, put the defendant in statu quo, and then proceed legally to the question of title. ASA MANN t. I. MARSH. Payment Application. THE court ruled that where a person pays money to a creditor, -who has demands 3OO*] against him on two *accounts, the creditor may place it to, which he pleases, un- less the debtor direct its application. JOHN MARSCROFT CALOIN BUTLER. Insolvent Debtor Discharge Due Application. THE defendant had applied for his dis- charge, under the Insolvent Act, on the first Thursday in term, but no measures had been taken to bring him up till the last day. The plaintiff then moved for time to oppose on an affidavit, stating that notice of the ap- plication had come to him only on the second day of the then August Term. That one Benjamin Prescott, of Massachusetts, was a material witness to prove the falsity of the defendant's inventory, and that he expected to be able to obtain his testimony. Per Curium. The prisoner must be re- manded till the first day of the next term. We do this with regret, but the act is too im- perative to admit of discretion. As the defendant did not apply to be brought up at an earlier day, it is in some degree his own laches. Let him be brought up next term. an enumerated motion, and it was also at an- other day, in this same suit, determined that if the notice of motion specify that it will be grounded on the frivolousness of the demur- rer, it will give the applicant a priority before other enumerated causes, and entitle him to his judgment *on reading the affidavit of [*3G7 service, and of general notice for argument, if no opposition be made. JOHN CROSS, JUN., v. GEORGE HOBSON. Arrest Insolvent Discharge Plea. rPHIS was an application to be discharged J. out of custody, the defendant having been exonerated from the demand under the insolvent law. Per Curiam. The defendant can take noth- ing bj r his motion. In the cause of Caldteell v. Graham, decided in January Term, 1803, we determined we would not help an insolvent who omitted to plead his discharge as he might have done. WILLIAM BODWELL v. JOHN, WILCOX. Motion Notice Date Court Boom. IN this case an objection was taken that the notice of motion did not specify "at the city hall of the city of Albany," but was only for the first day of the term, without desig- nating the place. Per Curiam. The notice is sufficient. Every one knows where the different terms are held, and the party himself evinces that by coming here to oppose it. *FRANCIS COLE v. JOHN GRANT. [*36S THE SAME v. GIDEON KING. FRANCIS COLE ET ux. v. JOHN GRANT AND GIDEON KING. FRANCIS COLE. v. JOHN GRANT AND GIDEON KING. Set-off Several Causes Costs Dam ages A t- torney's Lien. COSTS had been allowed to the defendants in the three first of these causes, to $26.53, and in the last also, to Gideon King, to $14.84, but in the last cause damages had been assessed against Grant, to $20 besides costs, and Cole was unable to pay the costs taxed against him. Mr. Russel,(m an affidavit disclosing the above facts, moved to set off the costs allowed the TT was ruled in this case that an application | defendants against the damages and costs re- J- for judgment on a frivolous demurrer is I covered by the plaintiff in the last. . 168 COL. AND CAINES. JAMES McCABE v. JOHN McKAY. 1. Enumerated Motions For Judgment Frivo- lous Demurrer. 2. Idem Priority Specif c Notice of Motion. 1804 JACKSON, ON THE DEMISE OF JACOB SPILSBURY ET AL., v. AARON WATSON. 368 Per Curiam. Let the defendants have leave to set off their costs in the three first causes against $20 damages recovered by the plaint- iff in the last. The costs of the plaintiff's at- torney in the last suit not to be included in the set-off, as he has a lien for them. (Spencer v. White, April, 1799, 2 Black. Rep., 317, 869, 871; 4D. &E., 123.) JACKSON, on the demise of JACOB SPILS- BURY ET AL., v. AARON WATSON. Ejectment Possession Payment for Improve- ments Judgment Stay of Proceedings. THIS was an application to be paid for the value of improvements pursuant to the provisions of the Act of the 5th of April, 1803, entitled, "An Act granting relief to certain 369*] persons claiming title to lands *in the counties of Cayuga and Onondaga;" that till the improvements were paid for, execution on the suit of possession might be staid, and that the judgment on the verdict obtained might be entered without any costs of increase. Mr. W. Woods, in support of the motion, read an affidavit, stating that the patent for the lands, to recover which the action was brought, was in the name of Jacob Spilsbury, who died previous to the 2^h of March, 1803. That the defendant, in 1797, settled on the premises, un- der a bona fide purchase, for the consideration of $387.50, and was in possession. That the improvements had not been appraised, nor had the value of them been tendered or paid. Mr. Hildreth, contra, read an affidavit, men- tioning that previous to bringing the suit, an offer was made to pay the value of the improve- ments. He urged also, that nothing was dis- closed to the court evincing a claim in fee, or that the estate of the defendant was such as would, according to the act, entitle him to the value of his improvements. But, admitting it was, it ought to be made appear in a legal manner. This could not be by the mere affi- davit of the party. It must be proved by the same evidence as titles are in other cases sub- stantiated. That this not being done, the de- fendant had not made out any right to what he claimed. 37O*] *Mr. W. Woods in reply. The act points out no particular mode, and this has been adopted. Per Curiam. Let the plaintiff have leave to perfect his judgment, with costs to be taxed, and let all other proceedings be staid, that the defendant may havejt in his power to apply to the Chancellor, under the second section of the act, as he is entitled to the benefit of its provisions. As, however, the plaintiff, pre- vious to the commencement of his action, offered to pay the value now demanded, we think him entitled to his costs, and we wish it to be understood that in future the claims of defendants to the value of their improvements under this act will depend upon the report of the circuit judge. COL. AND CAINES. DANIEL L. VAN ANTWERP v. R. ANDJ. INGERSOLL. Set-off Judgment Costs. Citation 1 Rev. Laws, 347, 530. rpHIS was a question of costs, by consent JL submitted to the court. The facts were, that in an action in the common pleas on a bill penal for $60, to secure two installments, the defendant pleaded non eslfactum, with no- tice of setting off a receipt, which was allowed as to one installment, and left a balance under $25 due to the plaintiff. The point was whether the plaintiff should pay costs to the defendant. Per Curiam. The plaintiff must pay costs. (1 Rev. Laws, 530.) This was a plea under the act authorizing set-offs. (1 Rev. Laws, 347.) The statue is positive and peremptory that judgment must be for the balance only. The *penalty, therefore, is immaterial [*371 on this point, for the judgment is the test by which the costs are to be determined. JOHN STROWELL v. JOHN VROOMAN. Arrest of Judgment Motion not Decided Case Made by Parties. IN this action, which was still pending in the Common Pleas for Saratoga, a motion had been made in the court below in arrest of judgment, on which no decision had been pro- nounced. The counsel, however, on both sides, agreed to make a case of it, and sub- mit the matter to the determination of this court. Per Cunam. This practice is increasing, and becoming grievous. It is time it should be arrested. We ought not to decide cases unless there be a Its pendens here. We cannot otherwise enforce our decision, and the very point may come lip again. We, therefore, must refuse taking up the case. SCHERMERHORN, MASON AND BISHOP, v. GIDEON TRIPP, JUN. Trespass Judgment by Justice, a Tavern Keeper or Resident Liability of Constable. TERROR from the Common Pleas in Rens- -LJ selser County. The suit below was tres- pass de bonis asportatw against a justice of the peace, a constable, and a plaintiff, in a suit before the justice under the 101. act, for taking the goods of the defendant, in an execution on a judgment rendered by the justice. The defendants all joined in a plea of not guilty. The evidence adduced was that the justice lived in a tavern where he officiated as the tavern-keeper, made out the bills and received payment for them, but that the justice did his business in a small out-room, *and the [*372 169 372 SUPREME COURT, STATE OF NEW YORK. 1804 license for the house was taken out in the name of the justice's son. This, however, it ap- peared from the justice's own declarations, was done to avoid the operation of the 20th section of the act. (1 Rev. Laws, 502.) On this, the defendant below demurred to the evidence. The court having given judgment for the plaintiffs, the cause now came up on a writ of error, in which the general errors were as- signed. Mr. Foote, for the plaintiffs in error, sub- mitted the case on the facts presented by the record. Mr. Woodworth, contra, relied on the words of the act, and the testimony being such as to bring the justice clearly within them. If so, as they are all joined in the same plea, they are all equally responsible. For where, in trespass against several, all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone. (2 Wils., 384; 2 Str., 993.) SPENCER, J. The same point has been de- cided in this court in the case of Percwal v. Jones, which was an action brought by a resi- dent freeholder 1 against a justice for appre- hending him on a warrant. Mr. Woodworth was stopped by the court. Per Curiam, From the evidence below, it was conclusively shown, that the justice (Schermerhorn) was in fact a keeper of a tav- ern, or lived in one. If so, he had no juris- diction to try the cause, 2 and as the constable (Mason) joined with him and the plaintiff 373*] *in pleading the general issue, they are all equally trespassers. Had the constable pleaded separately, he would probably have been excused; but he has now involved him- self with the others, and we cannot separate their fates. STEPHEN GOULD ads. AMBROSE SPENCER. THE SAME ads THOMAS TILLOTSON. MATHIAS WARD ads. AMBROSE SPENCER. THE SAME ads. THOMAS TILLOTSON. 1. Default Indorsement of Declaration by one Attorney only. 2. Inquisition Notice Time after Default. IN these actions, which were for libellous publications on the plaintiffs, in a paper entitled " The Corrector," judgments had been entered on default, and writs of inquiry- executed. Mr. Jdmes 8. Smith moved to set aside the de- faults and inquisition of damages, on an affida- vit made by himself, stating that by the writs 1. Under the 3d sec. 1 Rev. Laws, 492. 2. Sec. 20, 1 Rev. Laws, 502. 170 sued out in these causes, Messrs. Woodworth and Osborn, appear to have been the attorneys on record for the plaintiffs, 1 but that the declara- tions were indorsed with the name of Mr. Osborn only. That the rules also, which had entered in these causes were signed with the name of Mr. Osborn only, and this without any order of court obtained for that purpose; and that the interlocutory judgments had been entered only four days before execution of the writs of inquiry. Mr. Woodworth, Attorney-General, contra. Per Curiam. If the proceedings were not correct by being in the name of one attorney only, yet the *defendants show no [*374 excuse for not applying at an earlier day of this term. This is fatal to their motion. Be- sides, it is sufficient if one of the attorneys appearing on the writ continue to indorse and sign the proceedings. It must be presumed the defendants were not misled, but knew they were the parties meant by the original suit. As to the second objection, there is no force in it. The settled practice is to allow of notice of inquiry being given at any time after de- fault, and it is enough if the interlocutory judgment be entered at any day before execu- tion of the writ of inquiry. LIVINGSTON, /. I concur in the decision of the court on the question in this case. But I do not say, if two persons be attorneys on the writ, one may go on with the proceedings in his name singly. Were on to die, then the right to carry on the suit would survive. On the points now before us, I consider the ap- pointment of Mr. Woodworth to the place of Attorney-General, as a species of civil death. Therefore, on the present occasion I agree with the opinions of my brethren. The de- fendants can take nothing by their motion. JOAQUIN L. STEINBACH t. THE COLUMBIAN INSURANCE COM- PANY. 1 . New Trial Witness Correcting Mistake Wit- ness making subsequent Explanation. 2. Ma- rine Insurance Abandonment Date Total Loss. 3. New Trial Newly Discovered Evi- dence Accumulative Evidence. THIS was an action on a policy of insurance on the ship Catharine, at and from Barce- lona to Baltimore. The loss averred to be from arrest and detention by the Spanish govern- ment at Barcelona. The depositions of a Mr. Benjamin M. Mumford, examined on the part of the defendants, and *cross-examined [*375 by the plaintiff, were, on the trial, read by the plaintiff. Their contents led to establish a be- lief that the voyage actually intended, was direct to the Havanua, or some place in the West Indies. They referred, however, to cer- tain papers and documents, prepared by the deponent at Barcelona, shortly after the seiz- 1. A party cannot plead In the name of a firm. Per Ld. Ellenborough, Bunn v. Guy, 4 East, 105. COL. AND CAINES. 1804 JOAQUIN L. STEINBACH v. THE COLUMBIAN INSURANCE COMPANY. 375 ure of the Catharine, in order to obtain com- pensation from the Spanish government, and in the caption of all these, the voyage was described as for Baltimore, and from thence to the Havana, 1 in order, as stated by the papers, to reship at Baltimore, and avoid, by this cir- cuitous mode, the danger of confiscation, for going immediately from one belligerent port to j another. These papers were lettered, and at the time of Mumford's examination, shown to him, and he swore he believed them to be true copies of originals, deposited in the archives of the consular office in Barcelona. In order to explain the manner in which the voyage to the Havana was to be prosecuted, the plaintiff offered these copies, to which the counsel for the defendants objected, that as the depositions were now read by the plaintiff, Mumford was his witness, and these papers being only cop- ies, unauthenticated, and adduced with a view of discrediting his testimony, could not be received. This being overruled, a verdict was brought in for the plaintiffs. The present application was to set it aside, and grant a new trial, on account of the admission of the above testimony, and on account of some other wit- nesses being since discovered, who could further testify to the facts deposed to. LIVINGSTON, J., delivered the opinion of the court: Several objections are made to the plaint- 376*] iff's right *of recovering. 1st. It is alleged that the voyage contemplated while the Catharine was at Barcelona, was different from the one insured, and that, therefore, the risk never commenced. The insurance being at and from Barcelona, it may admit of doubt, whether, as the loss happened there, the de- fendants would not be liable, although a voy- age to the Havanna were in contemplation. But on this point of law we give no opinion, because it is sufficiently proved that the vessel was destined for Baltimore. Thus have the jury found, nor could their verdict have been different, without disregarding all the testimony in the cause. The defendants themselves are aware that this finding comported with the evidence, and have accordingly directed their principal attack against the testimony itself; for they say, 2d. That Mumford was the plaintiff's witness, 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 instance of the defendants, and cross- examined by the plaintiff, who produced his deposition on the trial. Perhaps the best gen- eral rule in such cases, would be to consider the witness, if his deposition be read, as belong- ing to the party on whose application he was examined, without any regard to the person who may finally make use of it. But without decid- ing this point, we think 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 377*] would be a strange rule indeed, *that a party producing a witness, should not be 1. Murdock v. Potts, was cited. See the observa- tions on that cause. 1 Lex Mer Amer., 320. COL. AND CATNES. permitted, even by the witness himself, to cor- rect a mistake which he may have committed. Nothing more was done here; Mumford had sworn, that from certain papers the destination of the cargo, according to his recollection , ap- peared to be for the Havanna; 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 cor- rect his error, if he had made one. This was no imputation on his character; it neither ren- dered him infamous nor unworthy of credit, as to the other point to which he had deposed. It discovered in the witness a laudable prompt- itude to rectify a mistake, into which an im- perfect recollection had betrayed him, and thus added to, rather than detracted from, the weight of his testimony. 3d. The exhibits B and C being only copies, should not, it is said, have been produced. If no allusion had been made to these papers by Mumford, they could not have been produced to show the real object of this voyage; but he had already testified that he had made out certain claims against the Spanish government, for the Catharine and her cargo, which stated the vessel to be bound directly for the West Indies ; these papers, he added, were lodged in the consulate office at Barcelona. Having sworn thus far from mem- ory, the plaintiff had a right to refresh his rec- ollection, by the showing him copies of the claims referred to. On inspection he might probably be able to determine whether they were true copies or not; and certainly if he believed them true, they would furnish better evidence of what the *originals contained, than [*378 any parol account of their contents, which was the only way in which the defendants had at- tempted to prove them. There is no reason to say the originals were in the plaintiff's posses- sion. They remained in a public office in Spain; and this kind of inferior proof was ren- dered proper by the defendant's 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 abandon- ment, it is said, was too late. The Catharine was seized in September, 1800, and not aband- oned until fifteen months thereafter. It has already been decided by this court, in Earl v. Shaw, that an abandonment may be made at any time after the accident, provided, at the date of the abandonment, the loss still contin- ues total. This being the case here, the abandonment was in season. 5th. It is con- tended 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 is produced, taken nine months after the trial, in which he states that the captions of the exhibits B and C were not shown to him, to the best of his knowledge and belief, and endeavors to explain why they were made as they appear, to wit, to prevent endan- gering the insurance. This explanation comes too late ; a witness under examination may ex- plain and correct himself, but it will be dan- gerous and improper to receive any elucidation from him after the trial, and especially after the lapse of so many months ; besides, the de- fendants were apprised of his deposition long 171 378 SUPREME COURT, STATE OF NEW YORK. 1804 before the trial, and are without excuse for not 379*] calling on *him then, to make such explanations as might be deemed important. 6th. But there has been a discovery of new evidence, and for that reason there should be' another trial. It is said, that if a new trial be granted, there are two witnesses who were not known to the defendants at the time of the trial, who can testify as to the destination of the Catharine. This was the fact principally controverted on the former trial, and we are now applied to for another, merely because all the witnesses who knew something of the matter, have not been examined. 1 Every one must perceive the inconvenience and delay which will arise from granting new trials upon the discovery of new testimony, or other wit- nesses to the same fact. It often happens that neither party knows all the persons who may be acquainted with some of the circumstances relating to the point in controversy; if a sug- gestion then, of the present kind, be listened to, a second, if not a third and fourth trial, may always be had. There may be many persons yet unknown to the defendants who may be material witnesses in this cause, and this may continue to be the case after a dozen trials; cases may occur in which, if great doubts ex- ist as to the first decision, it may be proper, on the discovery of further witnesses, even to the 38O*] 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 Lewis and Byrnes had both been examined, it is very uncertain whether the result would not have been the same. 7th. The last reason assigned for a new trial is, that a juror was challenged, in the absence from court of the defendant's counsel, and in consequence of such challenge did not serve. It appears that the defendant's counsel was in court when the trial of the cause was moved for and brought on; if he afterwards left it, it was his own fault. In contemplation of law, he was so far present during the whole trial, that no motion by the adverse counsel, after he had once ap- peared, could be regarded as ex-parte. He had a right to make his challenges to the jurors, without inquiring whether the other counsel was in court or in the hall. On the challenge itself it is unnecessary to decide; it may well be doubted, however, if it were not a good one to the favour; underwriters can hardly be proper jurors, in cases in which persons pursu- ing the same business are parties. Jurors should be omni exceptions majores. The judgment of the court is, that the de- fendants take nothing by their motion, and that the rule to show cause why there should not be a new trial, be discharged with costs. N. B. In another action on the freight of the same vessel, under the same facts, there was a demurrer to the evidence, on which the question was raised, whether a demurrer to evidence confesses all the facts which a jury might infer ? But the court avoided a de- 1. It Is no ground for the court to grant a new trial, that a witness called to prove a certain fact was reJL-cted on a supposed ground of Incompe- tency, where another witness who was called, estab- lishtKl the same fact, and the defence proceeded upon a collateral point, on which the verdict turned. Edwards v. Evans, 3 East, 451. 172 cision on this point, saying there was enough to *warrant the verdict of the jury. [*38 1 SPENCER, J., however, declared he considered the demurrer confessed everything a jury might infer. That he founded his opinion on the case of Coksedge and Fanshaw (in Doug., 119), and a similar decision in the Livingston causes, in our own court of errors. Cited 16 Abb. N. S., 247 (note). JOSEPH DAY v. WILLIAM WILBER, Q. T. Certiorari Selling Liquors Without a License Indorsement on Warrant Plea or Debt men- tioned on Process Waiver Defective Venire Continuing Justice's Court for Three Daya Oath to Constable Attending Jury. IN error on a certiorari to a justice's court, upon a conviction under the 10J. Act, for selling spirituous liquors without a licence. The plaintiff assigned twenty errors, but re- lied principally on the following: 1st. That there was no indorsement on the warrant, either of the name of the plaintiff or the title of the statute on which the process was issued. 2d. That in the process or warrant issued on the plaint, there was no plea mentioned, nor that the defendant owed the plaintiff and the overseers of the poor any money and detained it from them. 3d. That the plaintiff and de- fendant being freeholders, the process was by warrant, and not by summons. 4th. That the declaration was in the name of the plaint- iff and the overseers of the poor, when the process was in the name of the plaintiff only. 5th. That the justice refused, on a motion made, to quash the proceedings. 6th. That before the jury process was returned, another was issued. 7th. That the justice opened the court on the second day of June, and con- tinued it open till the third before he tried the cause. 8th. That the justice swore the con- stable "to attend the said jury, and to the ut- most of his ability to keep that jury together until they had agreed upon their verdict." *whereas, by the law of the land he [*38!2 ought to have sworn the constable to keep them " in some private and convenient place without meat or drink, except water, and not to suffer any person to speak to them, nor to speak to them himself, unless by order of the justice, or to ask them whether they have agreed on their verdict, until they have agreed on their verdict." KENT, C. J. I shall consider the causes alleged for error in the order in which they naturally arise. 1st. It is alleged that the directions of the act, commonly called the 10. Act, have not been observed, as the first pro- cess was by warrant and not by summons. The act directs that the justice, on application under the act, shall issue a summons or war- rant, as the case may require; that the first process against freeholders and inhabitants having families, shall be by summons, un- less the plaintiff shall prove on oath that he is in danger of losing his demand, or that he believes the defendant will depart the coun- COL. AND CAINES. 1804 JOSEPH DAY v. WILLIAM WILBEK, Q. T. 382 try, or unless the plaintiff be non-resident, &c. The return states, that the plaintiff be- low prayed process by warrant, and that the justice thereupon, and in pursuance of the act, issued his warrant; that the defendant was brought in on the warrant, and the plaintiff declared, and the defendant joined issue thereon and prayed an adjournment, which was granted, and on the day to which adjourned, the parties again appeared, and then the defendant objected that the warrant did not issue in comformity to the act regu- lating informations. As the defendant, there- fore, acquiesced in the process and never ob- 383* J jected to it because *it was a warrant, and it being stated to be issued in pursuance of the act, we are to intend it was duly issued, or if not so, the irregularity was waived by the defendant. 2d. It is alleged, that the suit being for a penalty given by the 16th section of the Tavern Act (1 Rev. Laws, 490), ought to have followed the directions of the Act passed 6th February, 1788, to redress disorders by common informers, which requires the name of the plaintiff and the title of the act to be indorsed. Proceedings under the 10?. Act are to be regulated entirely by that act, and the act relative to common informers, does not apply to these proceedings. The terms of it are altogether inapplicable. It vsupposes process to be issued by a clerk, and says that the like process shall be awarded as in an action of trespass at common law. 3d. The warrant is alleged not to state a plea or cause of action to which the defendant is to answer, and that it is stated, that the defend- ant is to answer to the people, whereas the 10?. Act says that justice shall not have cog- nizance of any cause wherein the people are concerned. The defects in the warrant, what- ever they may be, are cured by the general plea of the defendant. He has waived all these defects since he pleaded the general issue, and afterwards made no other objection to the warrant, than that it did not conform to the act relative to common informers, and which act, as I have already observed, did not, and could not apply. We have decided in the cases of Wool v. Bevil, July Term, 1801, and of Young v. Canada, January Term, 1802, that a defective venire was cured if the party made no objection at the time, but went on to trial, and there is equal, if not 384*] stronger *reason why a like conduct should cure a defective process, the only ob- ject of which was to bring the party into court. But I consider the process as good. It states the ground of action specifically, and that the plaintiff was the complainant upon oath, and that the defendant was to be brought in, to answer to the complaint of the plaintiff, and does not allege that he was to answer to the people. 4th. It is alleged that the declaration varies in substance from the process. The proper answer to this is, that the defendant by not pleading that variance, but pleading in chief, has waived it, and so this court has frequently decided in like cases. But it is not true in fact, that there is any substantial variance. The declaration only unfolds more at large the same charge, which is briefly stated in the process, to wit, the re- tailing of spirituous liquors without a permit. OOL. AND CAINES. 5th. Another objection is, that the justice overruled the motion to quash the proceed- ings, or as the record says, to abate the war- rant. The answer to this has already suffi- ciently been given, since the only reason as- signed why it should be abated, was that the process did not conform to the act for regu- lating informations. 6th. It is next object- ed, that the venire is defective, but as the venire was issued at the instance, and upon the prayer of the defendant, it does not lie with him to allege error in it. This point was decided by this court in the cause of Callinan v. Jittson, October Term, 1801, and it has frequently been so decided in other cases, nor do I conceive it to have been illegal for the justice to have issued a fresh venire when the first venire had not been carried into effect, but had been mislaid, kept, or withheld by the defendant himself, to whom it had been *delivered. This allega- [*38o tion in the record we are to take for truth, and it became indispensable then, that a new venire should issue, or the act of the defend- ant might have totally defeated the plaintiff's action. It would not have been legal, I ap- prehend, for the justice to have proceeded to try the cause without a jury, after the prayer of the defendant for one, and it would be most unjust for him to avail himself of his own laches or act to injure the action of the plaintiff. I am of opinion, therefore, that the issuing of the second venire was proper, and that it is to be considered as the process of the defendant below, and that no objection to the form of it will now lie with that de- fendant. 7th. Another objection is, that the court was continued over from the second of June, when the first venire was returnable, to the third of June, when the cause was tried. If the court was opened on the second of June, as we must intend, and the delay cre- ated by the defendant in summoning the jury rendered it requisite to keep the court open till the next day, there was no error in that proceeding. It became necessary, and the parties were bound to take notice of it and at- tend accordingly. There is nothing in the law to prohibit a justice from continuing his court from one day to the next, when the exigencies of the case require it. If the de- fendant neglected or refused to attend, the justice was authorized to proceed in the trial without him; but we are rather to intend that the parties were present at the trial, for the record states that the jury did hear the proofs and allegations, then and there made and ex- hibited. However, it is immaterial in respect to the objection, whether the defendant was or was not *present. 8th. The last error [*386 alleged, and which requires notice is, that the constable was not sworn according to law to keep the jury. The act gives a precise form of oath in this case, and the return states that after the jury had heard the proofs and alle- gations, the constable was sworn to attend them, and to the utmost of his ability to keep them together in some private and convenient place, until they had agreed upon their ver- dict. The return does "not state any further as to the oath, nor are there any negative words excluding the inference that the whole oath was administered in the form prescribed. 173 386 SUPREME COURT, STATE OF NEW YORK. 1804 As far as the oath is stated it is correct, and, in mv opinion, we must intend the whole oath was "duly administered. This intendment is, in many respects, reasonable, for in the first place there was no objection stated at the time by either party to the form of the oath, and setting forth the words of the oath was an act of supererogation in the justice, as it formed no part of the record and process be- fore him. The form of the oath to the wit- nesses is equally prescribed by the act, and yet the form is never or rarely set forth in the return to a certioran, nor is it ever required. The record does not set forth the oath stated as given in hac verba. It does not pretend to give the exact form of the one administered. If the oath, as far as stated, had varied from the act, it might have altered the case, but pursuing it as far as stated, and not being averred to have been all the oath that was ad- ministered, we are- bound to conclude the con- stable was legally sworn. It has been estab- lished by several decisions in this court, that we would liberally intend in favor of the legality of justices' proceedings. Thus in the 387*] *case of Wright v. Antlumy, January Term, 1802, we said we would intend an issue joined if the parties went to trial on the merits; and in the case of Carna \. Penfield, at the same term, the jury, it appeared, had found eight cents for the defendant on a plea of payment, and we intended a set-off, to help it out. These decisions are in conformity to the intent and spirit of the act, which declares (p. 500) that we shall give judgment accord- ing as the very right of the case shall appear, without regarding any imperfection, omission or defect in the proceedings in the court be- low in mere matters of form. I cannot but think that reversing a justices' judgment, be- cause part only of the constable's oath is in- serted in the record, would be a decision at once new and rigorous; especially, when none of it need be inserted; when there are no words negativing the idea that the whole form was administered, when no objection was taken at the time by the parties, when we are bound to overlook all defects of form and decide on the very right of the case, and when in manv other instances we have liberally in- tended in support of thair judgments. THOMPSON, J.. concurred in the above opinion in all points. LIVINGSTON, SPENCER, and TOMPKINS, J., in all, except as to the constable's oath; on that point they conceived the error fatal, and therefore ordered judgment of reversal. Mr. Gold, the next day, on an affidavit stating that the manner in which the oath was set 388*] forth in the record *arose from a clerical error in copying, applied on the au- thorities of Cowp.,325 (Varelst and Smith v. Rfifcet), Doug., 134 (The King v. Lyme Reyis), and 1 H. Black., 238 (Skutt v. Woodward), to amend the return. The court was pleased to order that the entry of judgment should be staid until further order, and that the justice have leave till the first day of next term to amend his return, so far as relates to the form of the said oath. 174 DE WITT CLINTON . PETER B. PORTER. Amendment of Declaration Oyer Variance. IN debt on a bond, the plaintiff set out the real oyer of it. The defendant then de- manded oyer, which was given to him variant from that set out, on which the defendant pleaded non est factum. The plaintiff then, without any rule or notice, served a fresh oyer, setting out the bond and condition truly; twenty days having elapsed, he signed judgment by default. Mr. Emott, on affidavit disclosing the above facts, moved to set aside the default and sub- sequent proceedings. Mr. Van Vechten, contra, insisted.that the case was within the eighth rule of April, 1796, which allows of amending declarations, cus in quo was his freehold. At the trial, $17 only were recovered. The plaintiff, however, contended he was entitled to full costs, as it appeared from the notice that the freehold had come in question. Per Curiam, delivered by LIVINGSTON, J.: By the fourth section of the " Act to reduce certain laws concerning costs, into one statute," (1 Rev. Laws, 529), it is enacted that " if in any personal action prosecuted in this court, the plaintiff shall not recover above the sum of 175 393 SUPREME COURT, STATE OF NEW YORK. 1804 fifty dollars, besides costs, be shall not recover any costs but shall pay costs to the defendant, to be taxed." "Provided, however," that nothing therein contained, "shall extend to any action where the freehold or title to land shall in any wise come in question." In this case we think it does not appear that it did. Where libenim tenementum is put on the record in form of a plea, it does not necessari- lv follow that the title will come into question. T-he plaintiff, by his replication, may admit that fact, and yet have a right to recover. 394*] Still less inevitable is this conclusion* where, subjoined to the plea, is a notice of the kind given, to which a party cannot reply, and the matter of which may be altogether aband- oned, ar not insisted on at the trial. Upon the whole, instead of looking at the pleadings, and relying on them how costs in these actions are to be disposed of, we think it best in future, in all cases of trial, to require a certifi- cate of the judge who presided, " that the freehold or title to lands and tenements, did come in question," as the best and only evi- dence of costs being due under this proviso. Although the act be silent as to any certificate, we think it a mode of ascertaining the fact, the most free of objection, and not so liable to mistakes, as conclusions drawn from a refer- ence to the pleadings. In this case we are of opinion that the plaintiff pay costs to tJte defendant. BENJAMIN HOUGH v. TIMOTHY STOVER. Non-enumerated Motion Arrest of Judgment Specifying Reasons. IT was ruled in this case at the last term that no application in arrest of judgment was a non-enumerated motion, and that the notice need not specify the reasons; because, as they are on the face of the record, they must neces- sarily appear to the adverse party. HENRY H. STALEY V. JAMES-BARHITE, and MARY, his Wife. 1. Judgment Joinder of Wife in Assvmpsit. 2. Ibid Jury Constable not Sworn. IN error on certiorari, Ostrander submitted that the judgment obtained against the now plaintiff by the present defendants, ought to be reversed. 1st. Because the wife 3f)5*] was joined in the action below, *which was a##ump*it, without showing how she had any interest. 2d. Because it appeared from the record that a person not a constable was sworn to attend the jury, and for these reasons the judgment was accordingly reversed. 170 DAVID HALLOCK v. JOHN ROBINSON. 1. Trespass Plea of Liberum Tenementum New Assignment. 2. Amendment Costs. ON demurrer in trespass quare clausumfregit. The plaintiff declared generally, for breaking and entering his close in the town- ship of Brookhaven. The defendant pleaded liberum tenementum, specifying and setting it out by metes and bounds. To this the plaint- iff, without new assigning, replied his own freehold, traversing the freehold of the de- fendant and concluding with an el 7ioc paratus praying his damages. The defendant demurred specially, and showed for cause a variety of reasons, but relied principally on the want of a new assignment and the not concluding to the country. Mr. Sanford, for the demurrer. Mr. Woods, contra. KENT, C. J. The replication, is evidently no answer to the plea of the defendant, set- ting forth by specific metes and bounds a par- ticular close as his freehold. The plaintiff replies only that the close in the declaration is his close, but says nothing as to the specific close in the plea, which is left totally unan- swered. If the plaintiff had averred the close in the plea to be his, he ought, perhaps, to have tendered an issue. As, however, we think the plaintiff *should have new [*39<> assigned, it is unnecessary to decide in what manner his replication should have concluded. Mr. Woods applied for leave to amend on costs. Mr. Sanford resisted, as there had been one amendment without costs, and hoped, if it was granted, it would be on payment of those formerly incurred. KENT, C. J. Amend on payment of the costs of this demurrer. JOHN VAN COTT v. NATHANIEL NEGUS. Costs Case Negligence Verdict of six cent Damages and six cents Costs. rTRESPASS on the case, brought in the J- Common Pleas, against the defendant, for so negligently and unskillfully managing his vessel that she ran foul of and injured the vessel of the plaintiff, and disabled some of his sailors. The jury found a verdict for the plaintiff with six cents damages and six cents costs. It was submitted to the court to deter- mine whether the plaintiff should recover his costs or pay costs to the defendant. Per Curtain. We think the defendant en- titled to receive costs from the plaintiff . COL. AND CAINES. 1804 ^WILLIAM H. DEVOE v. JACOB ELLIOTT. 396 WILLIAM H. DEVOE JACOB ELLIOTT. Fieri Facias Levy on Property Acquired After the Return Day. was an action against the defendant to J- recover the value of a mare, sold by him to the plaintiff. 397*] *The facts were that on the 17th of June, 1800, a writ of fieri facias was delivered to the sheriff of Montgomery, against the goods, . AND CAINES. 1805 LUTHER SPENCER v. WILLIAM R. HULBERT. 418 Per Curiam. Take the effect of your ap- plication. The papers may be more easily transferred to Ontario, than the witnesses car- ried to New York. The plaintiff does not show he has a single witness where his venue is laid, and the action being founded in privity of contract, not of estate, is of course transitory. LUTHER SPENCER v. WILLIAM R. HULBERT. Change of Venue Witnesses Goods Sold and, Delivered. OIMONDS moved to change the venue to O Onondaga, on affidavit by the defendant that the witnesses, which his counsel advised were material for him, resided there. Mr. Williams, contra. The action is for goods sold and delivered in Hudson, where the plaintiff lives. Per Curiam. Here is special matter in ad- dition to the common affidavit, and in such a case, unless the plaintiff will, by affidavit, state that he has one or more witnesses re- siding elsewhere than in the county where the venue is moved for, the court will order it to be changed. It is just and reasonable, where the plaintiff has no witnesses out of the county where venue is moved for, that we should grant the application, even though the action be for goods sold and delivered, or other transitory matter. 419*] *BRANDT, ex. dem. WALTON, v. OGDEN. Calendar Preference Peace of County. IT was ruled in this cause that if a public of- ficer inform the court that the situation of a county is such as to require, for the sake of the peace of the people, a decision on the point contained in a case, it will take pref- preference of all others on the calendar. JOHN B. BREVORT v. SAMUEL SAYRE AND PHINEAS HURD. Inquest Setting Aside Pending Compromise. BOYD moved to set aside the inquest taken in this cause, on an affidavit stating that the day on which the cause was set down for trial, one of the defendants, who was merely a surety for the other, sent a message to the plaintiff, by which he requested a meeting, to settle the suit if possible, in consequence of which an appointment was made for the even- ing, in order to try and compromise, but during the course of the day the inquest was taken. Per Curiam. Take your motion. COL. AND CAINES. ANONYMOUS. Calendar Preference Frivolous Plea. IT was ruled, that a motion to overrule a frivoulous plea, and be at liberty to enter a default, as if no plea had been filed, has the same preference as motions on frivolous demurrers. *JOAQUIN L. STEINBACH [*42O 9, WILLIAM OGDEN. Argument Points not Served. IN the case made, the points relied on were not specified, but merely stated by the opening counsel. Per Curiam. You are not entitled to bring on the argument. The points should have been reduced to writing, and this not merely for the benefit of the court, but of all parties. THE MAYOR AND CORPORATION OF NEW YORK v. COMFORT SANDS. Default Judgment Surprise Affidavit of Merits. pENDLETON moved to set aside a default _L and judgment obtained on a penal ordi- nance by the corporation of the city of New York, directing the defendant, as owner of certain vacant lots, to fill them up. The af- fidavit read denied his being owner. It also set forth, that the defendant had, on that ground, applied by petition to be relieved, but before any answer was given, and whilst the application was pending, the default and judgment were entered. Mr. Harison, contended that as the proceed- ings were regular, the petition ought not to have the effect of suspending them. The fact re- lied on as an excuse, was a legal defence, and might have been pleaded if true. Per Curiam. The proceedings complained of took place while a petition was pending, and there is, *therefore, something of [*42 1 surprise. In addition to this, there are in ef- fect merits disclosed. Let the default and judgment be set aside. JOHN PATRICK v. HALLETT AND BOWNE. Nonsuit Trial not liad Second Trial. MOTION for judgment as in case of non- suit, for not going to trial. Mr. Riggs resisted, because the cause had been once tried, and our act (1 Rev. Laws, 353), being like that of the English, required the 421 SUPREME COURT, STATE OF NEW YORK. 1805 same construction, under which it was held a plaintiff could not be nonsuited for not trying a second time. If we are wrong, we are ready to stipulate. Per Curiam. We have no doubt of the power of the court to nonsuit on a second trial. A plaintiff who has once tried his cause, after which the verdict is set aside and a new trial awarded, is bound to try again and again, if necessary, and if he do not, the defendant may apply for a nonsuit. But as the English practice has misled, and our own has not been perfectly settled, the plaintiff may stipu- late, and without costs. ROGERS v. GARRISON. Nonsuit Trial not had Counsel Misled Stipu- lation Costs. rpHIS cause had, at the last New York sit- -L tings, been set down for trial on the day docket, but from some little confusion as to the suits that would be heard before the re- spective judges, who separately at different times presided, the counsel did not attend. 422*] *A motion was made for judgment as in case of nonsuit. Per Curiam. Stipulate and pay costs. LIVINGSTON, J. I dissent from this, be- cause the only use of a day docket is to enable the bar to know what causes will come on, and it then becomes their duty to attend. If we allow of excuses of this sort, the force of the rule, in the city of New York, by which day dockets have been established, will be to- tally done away. JOHN A. EKHART JUSTUS DEARMAN. Default Relinqnishment Change of Venue No Opposition. ASTRANDER moved to set aside the de- \J fault and all subsequent proceedings on the following facts: On the second of October, the declaration was served on an agent. On the eleventh, the defendant gave notice of a motion, to be made the 12th of November, for leave to change the venue, but on the 10th, the plaintiff entered a default, and never ap- peared on the 12th, to oppose the application, in consequence of which the venue was changed as of course. Per Curiam. The defendant's conduct has not been perfectly regular. He ought, ac- cording to the rules of practice, to have ob- tained a judge's order to enlarge the time to plead, or a certificate to stay proceedings. But though there was an irregularity in the defendant, and the plaintiff was correct in entering the default, he has waived both by 423*] silently acquiescing *in the event of a motion, which he knew must be successful. By not appearing his language is, I consent to the application. If so, he certainly agrees to relinquish the default, and every other ad- vantage. 184 PALMER KT AL v. MULLIGAN ET AL. Costs On Motion New Term. THE Court ruled that if a party neglect ap- plying, in a former term, for all the costs he was entitled to on his then motion, he waives those for which he does not ask, and cannot in a future term make them the ground of a subsequent motion. MANHATTAN COMPANY . LYDIG. Struck Jury Motion Opposed Intricate or Im- portant Cause Sufficiency of Affidavit. HOFFMAN moved for a struck jury, on an affidavit, stating the case to be intricate and important. Mr. Jones contended that it was defective in not showing wherein the importance or intri- cacy consisted. Per Curiam. In all these cases the court ought to see, from the facts laid before them, that the cause is either intricate or important, and not submit themselves to the opinion of the attorney. We want something beyond his mere affidavit. The words of the statute re- quire this. If, indeed, there be no opposition, then the motion passes, as in other cases, of course ; because the opposite party by his. conduct confesses these requisites. *SHAWE v. WILMERDEN. [*424 Insolvent Debtor Pleading Discharge Costs. \ FTER pleading the general issue, the de- -Q- fendant obtained his discharge under the insolvent law. His then attorney, who had long since declined business, gave notice that he would give this special matter in evidence. The action being now again proceeded in, ap- plication was made for leave to strike out the notice, and plead the discharge, as the mistake of the attorney formerly employed was the reason why it was not before done. Mr. Hanson, contra. The known rule is, that an insolvent must plead his discharge. In the present case it ought to have been puis darrein continuance. It is a defence slricti juris, and not to be favored. Per Curiam. Let the defendant, on pay- ment of costs, have leave to withdraw bis notice and plead the special matter, the plaint- iff to be set at liberty to discontinue without costs. MANHATTAN COMPANY r. BROWER. Nonsuit Trial not had Day Docket. TTOFFMAN objected, on a motion for judg- -TL ment as in case of nonsuit, for not pro- ceeding to trial at the New York sittings, ac- cording to notice, that the affidavit did not state the cause to have been on the day docket. COL] AND CAINES. 1805 WILLIAM SMITH v. JAMES CHEETHAM. 424 This he contended ought always to be shown, because, unless so placed, it could not come on, and the plaintiff, therefore, could not be in default. 425*] *Per Curiam. Its not being on the ANONYMOUS. Case Made Service Placed Under Attorney's Door Presumption of his Presence. service of the case made in this cause *. P uttin S * nd erthe door of the day docket is matter of excuse to come from the \ . ere oor o e *3L** n. n *n* M* &, n.4Mn.*i* ' opposite attorney _s office, which was locked, plaintiff, and appear by affidavit. WILLIAM SMITH V. JAMES CHEETHAM. Non-enumerated Motion Setting Aside Verdict Conduct of Jury. IT was ruled in this cause, that an applica- tion to set aside a verdict for irregular conduct in a jury, is a non-enumerated mo- tion. KOY v. CLOUGH. Inquisition Excessive Damages Illness of De- fendant's Attorney Stipulation. THE attorney in this cause, from a sudden and dangerous illness, was unable to at- tend the execution of the writ of inquiry, in consequence of which the plaintiff's attorney was requested to postpone the execution of it, but he refusing to do this, went on and executed the writ, upon which pretty smart damages were given. Application was now made to set aside the inquisition. Per Curiam. The inability of the defend- ant's attorney to attend the execution of the writ, and the defendant himself having no notice of the day, are reasons for setting aside the inquisition, especially as the damages are rather excessive. But as the defendant's default is, in some degree, a confession of the plaintiff's right, the rule can be only on the defendant's consenting that the judgment on the inquisition shall be entered as of this term. 426*] *REUBEN KNAPP v. GARRET ONDERDONK. Amendment Of Justice's Return Laches. SMITH moved for leave to the justice to amend his return. Mr. Caines, contra. Independent of errors having been assigned and joinder, the justice has made an affidavit contradicting the exist- ence of the fact in which the amendment is re- quested. Besides two notices of argument on the error assigned have been given. Per Curiam. There is an evident laches. If the amendment is necessary, it ought to have been applied for, before noticed for argu- ment. The plaintiff in error must have known what was necessary to support his own assign- ment. COL. AND CAINES. but from the window's being open when this was done, and being very shortly after seen to be shut, the plaintiff's attorney swore he had reason to believe the case came to the hands of the attorney of the defendant. From these circumstances, and their not being contradict- ed, the court was pleased to consider them as evidence of the case being received. *M'KAY [*427 v. THE MARINE INSURANCE COMPANY. Verdict Setting Aside Absence of Mater ud Witness Opportunity Passed. Citation Ante, 183. rPHE defendants at the New York circuit, JL moved to put off the trial, for want of the testimony of a material witness, who was a transient person, and had once been within their power. The court refusing to do this, a verdict went against them, in consequence of which, and the absence of their principal counsel, the defendants moved to set it aside. Per Curiam. The decision at the circuit was right. Whenever a party has had an opportunity to examine a transient witness, and has suffered it to pass by, the want of his testimony is no objection to going to trial. In Post v. Wright and Buchan (ante p. 183), the absence of counsel was urged as an excuse, but the court refused to admit it, and we think all excuses of that sort ought to be dis- countenanced. JOHN FELTER v. WILLIAM MULLINER- Amendment Of Justice's Return Forrtter Trial. ON certiorari. The court ruled that if there has been a former trial, for the same cause of action, and a justice refuse evidence of it, he will be ordered to amend his return, by setting forth the testimony offered. JACKSON, ex dem. KEMP ET AL., v. PARKER AND BREWSTER. Judgment Roll By Plaintiff Cost*. /RAINES applied for a rule, ordering the \J plaintiff, who had obtained a verdict, to make up the record within a given time, or that the defendant have leave *to do it [*428 for him, as the verdict was complete evidence 185 428 SUPREME COUKT, STATE OF NEW YORK. 1805 for the defendant in a suit in chancery, be- tween the same parties. Smith resisted the application, because the defendant had never requested it to be done. Per Curiam. Take your rule, allowing twenty days 1 for the plaintiff to make up the record and carry in the roll, but without costs on either side. " Not to the defendant, because lie ought to have made a request to the plaint- iff before notice of application to the court, and we refuse them to the plaintiff, because he ought not to have come here to resist. LUCET ET AL v. BEEKMAN ET AL. Partition Seizin Of Certain Portion Fee. IF a party named in a petition, for partition, be stated to be seised of a certain portion, the court will intend it to be of a fee. ANONYMOUS. Advertisement For Three Months Weekly Notices. THE court said that in all cases where a three months' advertisement is required, a weekly notice is sufficient. HECTOR M'KENZIE v. JOHN WILLIAMS. Non-enumerated Motion Trial by Record. by record is a non-enumerated mo- -L tion. 429*] *MITCHELL . INGERSOLL. Assigning Errors Default Expecting Trans- cript Costs. THE rule for assigning errors having ex- pired, the defendant entered a default against the plaintiff. Mr. Hojikins moved to set it aside, on an affidavit, stating that the transcript had been written for, and was, when the rule expired, daily expected. Mr. Whiting, contra, urged that an order to enlarge the time for assigning errors, ought to have been obtained. Per Curiam. No laches is imputable to the plaintiff. He had reasonable grounds for ex- pecting the transcript; let, therefore, the de- fault be set aside on payment of costs. LUDLOW r. HEYCRAFT. Default Plea Sent by PostCost*. THIS was an action against the acceptor of a bill of exchange, in which the plea, 1. Kfttletas v. North, ante, p. 54, four (lavs al- lowed. 1M having been sent by the post, did not arrive in time, in consequence of which a default was entered. Mr. Henry moved to set it aside on an affi- davit that the acceptance was conditional. Mr. Williams resisted, because it did not ap- pear to have been on the face of the bill. Mr. Henry, in reply. It might have been ver- bal, and is sworn to. *Per Curium, payment of costs. Take your motion, on [*43O GEORGE CODWISE ET AL. JOHN HACKER. Trial By Defendant By Proviso Previous Rule. THE defendant in this cause, without any previous rule for trying it by proviso, gave a simple notice that he should bring it on, but inserted a proviso clause in the venire. Under these circumstances he obtained a non- suit at the last term, to set aside which ap- plication was now made on behalf of the plaint- iff, who did not notice for trial; the court, however, refused the motion in consequence of the proviso clause being inserted in the venue, but at the same time made the following general rule. Ordered: That hereafter the defendant shall not try a cause by proviso, without a previous rule for that purpose, to be granted by the court on the usual notice. MAY TEKM, 1805. STEPHEN BROWN v. CALEB SMITH. Verdict For One Mill Costs Jury Statute. ON certiorari from a justice's court, in tres- pass qvare rlausumfregit. the errors relied on were, 1st. That the verdict being for one mill, no judgment *could be, or in [*431 fact was rendered upon it. 2d. That as no costs were found by the jury, the justice was not warranted in giving judgment for any. Mr. Sanford, for the plaintiff. Mr. Bogert, contra. Per Curiam. On the second point it is un- necessary to say anything. The jury need not find costs ; they are given by the statute, wherever damages are found. But the judg- ment must be reversed ; without any law, none could be given on such a verdict; it is a nulli- ty and could not be the basis of any judg- ment. 1 In that which is now rendered, the justice is obliged to reject the verdict, for there is no judgment as to the mill. It is for costs only, and if carried into effect, there could be no levy for the verdict. There is no such currency as the sum given. 1. Set- Finch's Law, 29 ; Shore v. Thomas, Nov. Hop., 4, Contra; Mai-sham v. Huller,2 Roll. Rep., 21 ; Vlae ulso 2 Bos. & Pull., 36; Governor, etc. of Har- row School v. Alderston. COL,. AND GAINER. 1805 MATTHEW COD ET ux. v. RICHAKD HARRISON ET AL. 431 MATHEW COD ET ux. v. RICHARD HARISON ET AL. Partition No Opposition Notice and Affidavit of Service Read. IT was ruled, that in partition the practice is the same, when unopposed, as in other cases, and, therefore, only the notice and affi- davit of service, need be read. JAMES JACKSON, ex. dem. PETER WAG- GONER ET AL., V. JAMES MURPHY. Ejectment Stay of Proceedings Consent Rule for Serving. TT'MOTT moved for a rule, ordering the les- J-J sors of the plaintiff to permit a survey to be taken by the defendant of the boundaries and marked trees of a patent under which he 432*] claimed, on an affidavit stating *that it was necessary for his defence to ascertain the lines of it, but that a person sent by him for that purpose had been prevented by the agent of the lessors, who derived title under an adjoining grant. KENT, C. J. Were we to grant this appli- cation, could we enforce the leave we had given ? Suppose an action of trespass brought, would this be a justification? But, it does not appear to me that our inference is necessary. The judge at the circuit would, upon the grounds now shown to the court, postpone the cause. You may, however, take your rule to stay proceedings, till the lessors of the plaintiff enter into a consent rule for having a survey made. NICHOLAS LOW v. JACOB W. HALLETT. Reference Long Account Questions of Law Affidavit "on Advice of Counsel." TjlMOTT, on the common affidavit that the J-J trial of this case would require the ex- amination of long accounts, moved for a ref- erence. Mr. Hoffman, contra, read an affidavit by the plaintiff, simply stating that as he was advised by his counsel, and verily believed, the contro- versy would necessarily involve questions of law. Mr. Emott, in reply, submitted to the court whether the affidavit ought not to have speci- fied what those questions of law were. (See Lusher v. Water, ante, p. 206.) THOMPSON, J. I believe the usual mode has been to state them. 433*] *Per Curiam. The addition of "as ad vised by counsel," is sufficient. It is to be presumed that counsel would not advise, un- COL. AND CAINES. less there was some foundation. Take nothing by your motion, and pay the costs of resisting. SETH MORE v. ASA BACON. Amendment Of Justice's Return Joinder of Error in Precaution only. MOTION to amend a justice's return by altering the date of an act, mentioned to have been passed on the 7th day of April 1804, to the 7th day of April, 1801. Mr. P. W. RadcUff read an affidavit by the at- torney of the defendant in error, that the mis- take was a clerical misprision, which he did not discover till the 27th of March last, when a copy of the assignment of errors, in which this was set forth as a cause, was served on on him, with a notice to join in error in twen- ty days, or that a default would be entered. Mr. Caines, contra, urged that the application could not now be heard, as from an affidavit of the attorney for the plaintiff, it appeared to be after joinder in error on this very point, so late as the 22d of April, and that, in such cases, the rule was not to allow of amend- ments. Mr. P. W. Radcliff, in reply. The papers be- fore the court show that the parties live in a remote county, and the joinder was merely to prevent the entry of a default for want of be- ing served with an order to stay proceedings. *Per Curiam. The observation of [*434 the defendant's counsel takes this case out of the general rule. The order to stay proceed- ings was applied for, and evinces that the joinder was a mere matter of precaution, not a reliance on, or affirmance of the correctness of the proceedings. The amendment, there- fore, must be allowed, on payment of the costs of the assignment of errors, and those of resisting this application. BACH AND BACH v. COLES. Case Made Stay of Proceedings First Appli- cation. THIS was an application to the court, in the first instance, for an order to stay pro- ceedings on a case made. Per Curiam. Though the rule authorizing parties to apply to a judge for this purpose does not abrogate the power of the court, yet we ought never to be resorted to till the other mode has been attempted. This is chamber business. RICHARD HARTSHORNE ET AL. v. DAVID GELSTON. Struck Jury On Character of Parties only. pENDLETON moved for a struck jury in -L this suit, which was for erecting a beacon on the plaintiffs' lands at Sandy Hook, after 187 434 SUPREME COURT, STATE OF NEW YORK. 1805 being warned not to do so, on an affidavit stating a former action and recovery for the name offence, the pendency of two suits for a continuance of the original trespass, and that the defendant was, as he verily believed, re- imbursed by the government of the United States for the damages paid in the first action, and would be indemnified by them against any 435*] recovered in the *present or other suits. These circumstances, and the proba- bility that the general government was inter- ested in the cause, were sufficient, he con- tended, to make it of such importance as to require a struck jury. Per Curiam. There is nothing in this case which is not fitted to the capacity of an ordi- nary jury. The parties litigant do not make a case important. JOHN BALL v. JOHN P. RYERS. Execution Rule on Sheriff to pay oner Surplus Money. THE plaintiff in this suit had issued a fi. fa. upon a judgment he had recovered. Mr.Riker, citing Doug. 231, ' now moved for a rule directing the sheriff to pay over, on the execution thus sued out, the sum of $197.26, being the surplus arising from a leasehold property, levied on and sold in an action against the same defendant, at the suit of another plaintiff. Ordered accordingly. COLMAN I. KEELER JOHN ADAMS. 1. Amendment Of Justice's Return^ Notice of Set-off Weight of Evidence Justice's Affida- vit in Opposition. 2. Idem Tort Set-off. HOPKINS moved for a rule on a justice, ordering him to amend his return by in- 436*] serting the *substance of a notice given at the trial of the cause, and the testimony adduced under it. The affidavits of the defendant and his attor- ney, set forth that the action was trespass on the case, for not returning and misusing four beds, bedsteads and some furniture, let to the defendant for six months, to which not guilty was pleaded, with a notice that at the trial evidence, would be given that the hiring was for twelve months, at the rate of four dollars per bed per annum, and that the defendant had paid more to the plaintiff than the rent for six 1. Armistead v. Philpot. But if a plaintiff have, in the hands of the sheriff, money arising: from an execution, a levy cannot be made on such money by virtue of a fl. fa. against the plaintiff, for the mere raising- the money by execution does not, it is said, pass the property in it to the creditor. Turner v. Kendall, 1 Cranch, 117. In the principal case, LdvinKSton, J. said he had no doubt money mijirht be levied on. See Dalton's Sheriff Accord. But vide Fieldhouse v. Croft, 4 East, 510, overruling Armistead v. Philpot. 188 months amounted to; and also, that the plaint- iff had, before the expiration of the year, by force, taken away the goods demised, and that the defendant would, on the hearing, insist on recovering the balance due him, on the over- plus of the rent paid. That proof was made of these circumstances, and the jury found a verdict in his favour for three dollars damages and six cents costs, upon which the plaintiff sued out a certioran, and had assigned for error, that the jury gave damages for the de- fendant, when he claimed none by his plea. To these depositions was annexed a certifi- cate from the justice himself, corroborating their contents. Mr. Emott, contra, read affidavits made by the plaintiff, his attorney and the justice, denying the notice of set-off, but admitting one, of giv- ing in evidence that the hiring was for six, not twelve months. In that by the justice, the contradiction between his certificate and affi- davit was explained to arise from surprise in *the hurry of business, and conceiving [*437 the former which was brought to him ready prepared, to relate to the argument used by by the defendant on the trial. From these facts, and the tenor of the de- fendant's affidavits, he insisted, that as the suit below was an action on the case for damages, there could be no set-off, and that the court would not order a return, contrary to the de- position of the justice, as that would be oblig- ing him, to lay himself open to an action. Per Curiam, delivered by TOMPKINS, J. I am of opinion that the present motion ought not to be granted. The evidence of the notice of set-off which the defendant alleges to have been given, consists of his own affidavit, that of his counsel, and a certificate of the justice. To this is opposed the affidavits of the plaintiff and his counsel, and an affidavit of the justice, stating the notice of special matter given at the trial of the cause to be different from the one specified in the affidavits on the part of the defendant. The latter notice was of such matters as it was competent for the defendant to give in evidence under the general issue, and, there- fore, a return of it by the justice, in addition to the general issue, would be unnecessary and immaterial in the final determination of the cause. The weight of evidence before us is against the allegations of the defendant, since the affi- davit 01 the justice ought to receive greater credit than his certificate; *especially [*438 as in the former he explains the circumstances under which the latter was obtained, and his inadvertence and misapprehension at the time of giving the latter. We cannot suppose that the justice, if compelled to amend, would re- turn any other notice, than the one to which he has now sworn, and, as I remarked before, the notice amounted to no more than the gen- eral issue. I should not be inclined to 'grant the defend- ant's motion, if the affidavits on his part were uncontradicted by opposite proof. The decla- ration below was for a tort, to which the defend- ant properly pleaded not guilty, and in such an action evidence of set-off is inadmissible. It cannot, therefore, be important for the de- COL. AND CAFNES. 1805 CHRISTOPHER WOLFE v. WILLIAM HORTON, 438 fendant to have a return of the notice which he alleges to have been given, as it would not vary the determination of the cause in this court. Let the defendant take nothing by his motion. KENT, C. J., gave no opinion on the point of set-off. CHRISTOPHER WOLFE WILLIAM HORTON. 1. Certiorari New Declaration Copy sent up. 2. Notice of Trial Correct Date Erroneous Week Day Surplusage. Citation 2 Salk., 565. ON certiorari to the Mayor's Court after issue joined, the plaintiff, without declaring de now here, served a notice of trial for Tuesday, the 18th of April, and took an inquest at the last New York sittings. Mr. Woods, on affidavits showing these circum- stances, moved to set aside the inquest, con- tending that the proceedings should have com- 439*] menced anew, and a declaration in this court have been regularly served. He also took an exception to the return of the writ, in certifying that a copy only was sent up, and insisted the original bill, &c., ought to have been removed. In addition to this, he urged that the notice of trial being for Tuesday instead of Monday the 18th, was insufficient, and, therefore, on this ground, as well as the others, the application ought to be granted. Messrs. Evertson and Boyd, contra. The prac- tice under a certiorari is to be distinguished from that on a habeas corpus cum causa. By the former the proceedings themselves are brought up; by the latter only a transcript is returned. In the first case, therefore, as the original pleadings in the cause are actually before the court above, the case is taken up as they then appear, and the suit goes on from the last step below, without any renovation. This reason- ing does not apply to a habeas corpus. The return to that is not of the record itself, but of its tenor; of necessity, then, a new declaration must be filed here, for the purpose of creating a record on which the superior jurisdiction may act. It is no argument against this rea- soning, to say that the record is not in fact removed by a certiorari, and that, in the pres- ent instance, the very return specifies only a copy is sent up; for, in no case are the pro- ceedings really moved from the court below. On writs of error from the King's Bench to the Common Pleas, the record is not actually transmitted, yet by the fiction of law it is so considered; and it is on this intendment, made from the nature of the writ, that the practice 44O*] is founded. That the notice was *for Tuesday, instead of Monday the 18th, is imma- terial. It was impossible the defendant could have been misled. 1 Per Curiam. The last objection is a cap- tious attempt to take advantage. The period at which the sittings were held was a matter of general notoriety. The day of the month 1 See exactly the same point in Batten v. Hari- on, 3 Bos. & Pul., 1. COL. AND CAINES. was right, and though that of the week was wrong, it could not, as the plaintiff's counsel have remarked, mislead, and must therefore be rejected as surplusage, for it was not necessary to state it. With regard to the regularity of the practice adopted, it is settled, that upon a certiorari in a civil suit we must proceed as the court below would have done, and con- sider the cause in the same state here as it was there. On the return of the writ, there- fore, the cause was at issue, and nothing more required than to notice for trial. On a habeas corpus, the history of the cause is sent up; on a certiorari, the record itself. We cannot at- tend to the statement of the return, that it is only a copy which has been transmitted. In the eye of the law this is the record; and its being called a copy in the return cannot make us consider it otherwise. In the analogous case of a writ of error, urged on the argument, the transcript only is before the Court of King's Bench. But it is always regarded as the record itself. (Hex v. North, 2 Salk., 565.) The same principle governs the present case. Nothing is shown to take it out of the general rule. If there are merits, they ought to have appeared on affidavit. This not being done, we must hold to strict practice, and deny the motion. v. CHRISTOPHER WHIPPLE. Common Bail Nunc pro tune Bail-bond lost. THE plaintiff's original attorney had left this State before the return of the writ; the one now employed found, on search, a rule entered to declare or be non prossed. In con- sequence of which he served a declaration, received a plea of the general issue, went to trial, and obtained a verdict. Mr. Emott, on an affidavit containing the above statement, and that, from having received no instructions or papers from the first attorney, he could not obtain the bail bond given in this suit, which was taken by one of the plaintiffs, who was specially deputised to make the arrest, moved to file common bail nunc pro tune, which was, after slight opposition, Ordered accordingly. JOHN THOMPSON AND CHARLORA ADAMS AMAZIAH PAYNE. Default Notice of Retainer Misapprehension of Name of Party Affidavit of Merits. MOTION to set aside a default and all sub- sequent proceedings, on an affidavit of merits by the defendant, and two affidavits by the attorney and his clerk, that a notice of retainer had been duly served on the agent of the plaintiffs' attorney, but which, from mis- apprehension of the Christian name of Adams, 180 441 SUPREME COURT, STATE OF NEW YOKK. 1805 had been entitled John Thompson and Charles Adams against the defendant. On the opposite side, the attorneys of the plaintiffs swore positively that they had never 442*] received any *notice of retainer in the present suit, or any other, in the title of which the Christian name of Charles was used instead of Charlora. KENT, C. J. There must have been some mistake in this business, and as merits are sworn to, let the default and proceedings be set aside on payment of costs. JACKSON, EX DEM. COUNTER, 0. ISAIAH GILES. Argument Defective Service of Notice. N reading the affidavit of service, it stated the notice to have been delivered to the clerk of the attorney, without saying where. Per Ouriam. The service is, on the face of it, insufficient. We do not investigate the merits of any application which the other side does not oppose ; because we construe silence into consent, and an acknowledgement that the law is with the person moving. But we re- quire the notice and affidavit of service to be read, because they are to conform to our own rules, all of which are known to the court. This reasoning, however, does not apply to transactions between the parties to a suit. The motion must, therefore, be denied, though there is no opposition. JOSHUA WHITNEY t>. JOHN CROSBY. 1. Demurrer Count for Interest From June 1 No year stated Construction. 2. Idem To Whole Declaration One Count good. TO a declaration on a note dated the 15th of July, 1803, acknowledging there was due to the plaintiff $188.90 on interest from the 1st day of June, with a second count for 443*] money had and *received, the defend- ant assigned, as a special cause of demurrer to the whole declaration, the uncertainty in not specifying from what June the interest was to accrue. Per Curiam. The first count is good, be- cause certain to a common intent. When a day or month is mentioned as antecedent, or subsequent to a contract, and the precise day or month is not specified, it means the time nearest to the date of the contract. As the money here was payable immediately, with interest from the 1st of June, it must mean the preced- ing 1st of June. It can have no other inter- pretatation. A further reason why the plaint- iff must have judgment is, the demurrer is to the whole declaration, and the second count is clearly good. 190 JACKSON, ex dem. RUSSEL ET AL., . STILES DOCKSTADER, Tenant. SAME v. SAME. FREELICK, Tenant. Default Affidavit of Defences only None to the Merits. TO set aside the default and proceedings in these causes, the defendants relied on an affidavit of their attorney's clerk, stating a ser- vice of notice of appearance and the consent rule, by leaving them, on the 17th of January, 1804, between the hours of 2 and 4 in the af- ternoon, at the office of J. V. Henry, the agent for the attorney of the plaintiffs, and that there were good and substantial defences. On the other hand, from the depositions of the plaint- iffs' attorney it appeared, that Mr. Henry was not appointed their agent till Julv, 1804 ; that notice of appearance, &c., *hacfnot [*444 been received; that in one suit, a writ of pos- session had been sued out in May Term of that year, and executed in the vacation following; and that in the other, the tenant had com- promised and bought the land of the lessor of the plaintiff. SPENCER, J. The affidavits go only to there being defences, but this is no evidence of merits. The proceedings have been perfectly regular on the part of the plaintiffs, and nothing appears from whence a mistake could have arisen. The applications must, therefore, be denied. PETER BROOKS v. ABIJAH HUNT. Nonsuit Ti-ial not had Costs Stipulation. ISSUE had been joined on the 1st of March last, but the cause, the venue of which was laid in the county of Albany, had not been brought on at the last April circuit. Mr. Sanford, on these facts, moved for judg- ment as in case of nonsuit. Mr. Paris, contra, showed that the defendant had delayed the cause by obtaining time to plead till the first day of March; that from the matter of the plea then delivered, there was reason to believe it would be necessary to sub- poena witnesses from New York ; and that from the short interval between the receipt of the plea and the circuit, he had no opportunity of consulting with the plaintiff, who resided in the most westerly part of Montgomery. From these circumstances, he argued that the mo- tion ought to be denied without either costs or stipulation. *Mr. Sanford,\n reply. The words of [*445 the statute (1 Rev. Laws, 353, sec. 12) are, that where issue is joined and the plaintiff "neglect to bring such issue to be tried according to the course and practice of the court," the defend- ant shall be entitled to judgment as in case of nonsuit. From the 1st day of March to the circuit in April was time enough to notice. Per Curiam. The defendant had a right to move, and, therefore, though we deny his mo- tion, it must be on payment of costs; but, from COL. AND CAINES. 1805 MYNDERT LANSING v. DAVID HOHNER. 445 the circumstances of the case, the plaintiff is excused from stipulating. THOMPSON, J. I do not think this according to practice. The cause was long enough at issue to allow of a notice, and he ought, there- fore to stipulate. * # * It was said by the bench that in all cases the period within which costs are to be paid is twenty days. MYNDERT LANSING DAVID HORNER. Default Execution Notice of Retainer Laches. T?MOTT moved to set aside the default en- J-J tered the 21st of January last.and the judg- ment and execution thereon, upon the affida- vit of the defendant swearing to merits, and one from his attorney, stating that notice of retainer and of special bail had been in due time transmitted with the bail piece by the mail, to his agent in Albany, desiring him to serve them on the attorney of the plaintiff, and that he himself had never received a declaration. 446*] *Mr. Bleecker, contra, read an affida- vit, setting forth that he had never received any notice of retainer or bail, and that he had pro- ceeded regularly. KENT, C. J. As the papers were sent to the party's own agent, why does not he show that he has not received them? This was his duty, and the not doing so is a palpable neglect. There is also a laches in not applying last term. The defendant can take nothing by his motion. LEWIS DU BOYS v. HENRY FRONK. Change of Venue Witnesses Plaintiff's Wit- nesses. O ANFORD moved to change the venue in an O action of covenant, from Dutchess to Mont- gomery, on an affidavit stating that he had a great number of witnesses, all of whom, ex- cepting one in Rensselser, resided in Mont- gomery. Mr. O. Van Ness, contra. The action is transitory. KENT, C. J. We last term decided that where the body of witnesses resided in a county different from that in which the venue was laid, we would change it on the application of the defendant, unless the plaintiff show that he has witnesses where the venue is laid. Take your motion. CORNELIUS C. BEEKMAN BENJAMIN FRANKER. Default Attorney Not Employed through Ignor- ance. IT was ruled that ignorance of the necessity of employing an attorney, previous to the OL. AND CAINES. trial of the cause, is not sufficient to induce the court to set aside *a regular default [*447 and subsequent proceedings, though accom- panied with a strong affidavit of merits. JAMES WOODS v. EPHRAIM HART. New Trial Sheriff's Jury Person present at Deliberation Costs. BOGERT moved to set aside the inquisition assessing very small damages, on account of the sheriff's having permitted a person to remain and converse with a jury, whilst de- liberating on their verdict, though known to be inimical to the plaintiff, and rejected as a juror on that account. Mr. Hoffman, contra. On inquests, after a de- fault, confessing a cause of action, there never is the same regularity as on a trial where the very right is questioned. It is not alleged that the man who remained with the jury spoke adversely of the plaintiff, or used any means to lessen the amount of damages. Mr.Bogert,\n reply. On an inquisition the law is as jealous of the conduct of jurors as on a trial. (4 D. & E. , 473, Stainton v. BedU.) The oath of the constable is the same, and shows the same conduct is required in one case as the other. KENT, C. J. No one ought to mix with a jury whilst deliberating. They should, to pre- serve the purity of justice, be kept by them- selves, and on this point there is no difference between an inquiry before the sheriff, and a trial. The inquisition must, therefore, be set aside, each party paying his own costs. We order it thus, because neither party is to blame; and, were we to direct them to abide the event of the *suit, it would, in fact, [*448 as there has been a default, be saying the de- fendant is to pay them. This case, therefore, is to be distinguished from that of granting a new trial after verdict, for the misbehavior of the jury. There, each of the litigants has a chance in his favor, and ordering the costs, on such occasion, to abide the event of the suit, does not, necessarily, impose them on either. Here the event is known. JAMES HO WELL v. DANIEL DENNISTON. 1. Default Irregularity Merits. 2. Idem Notice to Plead before Return of Writ. THE plaintiff in this cause filed his declara- tion de bene esse, and entered his rule to plead on the return day of the writ on which the defendant was taken, but the writ was not, in fact, returned till seven days afterwards. Mr. Blake, on these grounds, moved to set aside the default and all subsequent proceed- ings. Mr. Emott, contra. KENT, C. J. The rule to plead was irregu- larly entered; because, until the writ be re- 191 448 SUPREME COURT, STATE OF NEW YORK. 1805 turned, bail filed, or an appearance entered, there is no basis for a proceeding, and the court has no cognizance of the cause, so as to authorize pleadings. With respect to there being no merits, we never regard that, when the application is for irregularity. MATTHIAS AND JAMES BRUEN v. ADAMS AND MERRILL. Inquest Defective Affidavit of Defence Advice of Counsel. WOODS moved to set aside an inquest taken early in the last New York sittings, in 449*] the absence of *the defendants' attor- ney, on an affidavit stating that the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116. Mr. T. L. Ogden, contra, read a deposition showing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled. He contended also, that the affidavit of the defendants was insufficient, in not expressly averring there was a defense. Mr. Woods, in reply. The same thing is in sub- stance done. All inquests at a circuit are at the peril of the party. (Roosevelt v. Kemper, ante, 341.) THOMPSON, J. The practice I adopted was that if the defendant's counsel said there was a defence, I did not allow it to be taken. Per Curiam. The affidavit is defective in not saying there is a defence "as advised by counsel." In this case there has been a frivo- lous demurrer, and that is a very suspicious circumstance. The defendants, therefore, take nothing by their motion. JONATHAN HOLMES v. ELISHA WILLIAMS. Amendment Expunging Improper Costs. rPHE defendant, in a suit against the plaint- JL iff, the venue of which was laid in Albany, had obtained a judgment in which the costs awarded were nine dollars twelve cents, and 43O*1 on the supposition that the original *ca. sa. had iasued into Columbia, sued out a testa- turn ca. sa. inserting $14.44. The now plaint- iff having been taken on his writ brought the present action for false imprisonment. Mr. Williams, on an affidavit disclosing the above facts, and adding that he did not person- ally issue the execution or ever see it, or knew of the mistake till the 6th day of the present month, moved to amend the testatum ca. sa. by expunging the $14.44, and inserting $9.12. Mr. Van Wyck, contra. This is an application in one suit, to amend mistakes and errors in 192 another. If the amendment is to be in the cause of Williams v. Holmes, the papers ought not to be entitled in that of Holmes v. Wil- liams. The motion goes to take away the basis and foundation of our action. Per Curiam. Take your motion. ROBERT G. SHAW AND CHRISTOPHER BARKER v. ROBERT COLFAX, WILLIAM COLFAX AND ALEXANDER RICHARDS. Default No Declaration Failure to Enlarge Rule. ON the last day of February Term, the de- fendants Robert Colfax and Alexander Richards entered a default against the plaint- iffs for not declaring. Mr. Hopkins moved to set it aside, together with the subsequent proceedings on these facts. In November Term last, the capias issued was returned "taken," as to Robert Colfax and Alexander Richards, and " not found," as to William Colfax, to *arrest whom [*451 several ineffectual attempts had been made, as he resided in New Jersey, and either did not come into New York at all, or did it SQ secretly as to avoid the process sued out, but on that account the idea of proceeding against him was not relinquished; on the contrary, an alias capias had been sued out, under the belief that he had received information of the former writ, but before it was issued a rule to declare against the other two defendants had been served, upon which the present default had been entered. He argued that at common law the plaintiff could not proceed till all the defendants were brought in ; and though by statute 1 a different, practice might be pursued, still it was at the election of the plaintiff, and therefore, no ad- vantage could be taken of the omission. For this he cited Tidd's Practice, 376, 379. Mr. D. A. Ogden, contra. Had the proceeding been by original, the authority relied on might have applied, but as it is by bill, the plaintiffs have placed themselves in the same situation, as if all the defendants had appeared. If necessary that all the defendants should be brought in, the plaintiffs should have obtained an order to enlarge the time for declaring. According to the practice now contended for, a defendant may be kept under bail for his life. Mr. Hopkins, in reply. Whether the proceed- ing is by bill, or original, is immaterial. The distinction is whether the suit be in trespass or on contract. In the former they may sever, in the latter they cannot; as *they there- [*452 fore must be proceeded against jointly, they cannot separately non pros. Suppose the only solvent defendant not to be taken, must a plaintiff go on against a person from whom nothing can be recovered? The inconvenience 1. Act for the amendment of the laws, 1 Bev. Laws, 353. COL. AND CAIKES. 1805 ROBINSON AND HARTSHORNE v. FISHER. 452 alone of such a principle, is a sufficient argu- ment against it. Per Curiam. The plaintiffs should have ap- plied for further time to declare, and shown either that they were endeavoring to bring all the defendants into court, or pursuing one to outlawry. That would have been a good ground to enlarge the rule from time to time. Not having done so, and being authorized by our act to proceed against the defendants brought in, the plaintiffs were liable to be non- prossed equally as if all the defendants had been before us. ROBINSON AND HARTSHORNE FISHER. Dilatory Plea Verification Plea that Assump- sit was Joint. TO a declaration on a promissory note, the defendant pleaded in bar, that the as- sumpsit was by him and Robinson jointly, and not by him separately. 1 The plaintiff's attor- ney considering the plea a nullity, entered a default. Mr. Woods moved to set it aside, and cited in support of the plea a precedent in 3 Went., 114. He said also, no plea could be treated as a nullity unless it appeared on the face of 453*] it to be frivolous. In all other *cases the court would drive the defendant to his de- murrer. Mr. G. Ogden, contra. The matter of this plea is clearly in abatement; and if so, might, for want of being verified by affidavit, be treated as a nullity. (1 Sell., 301.) Per Curiam, delivered by LIVINGSTON, J. : This is a dilatory plea, the definition of which is, that it only delays the suit by questioning the propriety of the remedy rather than by de- nying the injury. Thus the injury complained of here is not denied, but that it was com- mitted with another. If it be a plea of this description, it wants the verification required by statute, and is therefore bad. Even as a plea in bar, I should not be for countenancing it, for it is totally out of the usual form of general issue which it was intended to try, and which would have answered as well, and fur- Dished a record in the common form. PAUL SCHENK AND HENRY TEN BROECK V. MELANCHTON LLOYD WOOLSEY. Inquest Defence Counsel Mute Merits. IN scire facias, to revive two judgments, one for 4,224, the other for 1,718, obtained 1. See Mainwaring v. Newman, 2 Bos. & Pull., 130, in which such a plea as the present was held #ood on demurrer, on the authority of Moffat v. Millingen et a/., E. 27 G. III., B. R., declaring that the matter was not pleadable in abatement. OL. AND CAINES. N. Y. REP., BOOK 1. in 1783, inquests had been taken at the sittings in December, 1803. Mr. D. A. Ogden, under an agreement that the application should be considered as in time, moved to set them aside on affidavits, which contained in substance these facts: *The defendant, who lives at Plats- [*454 burg in the County of Clinton, was in 1875 duly discharged under the then insolvent law of the State. In February, 1803, the declara- tions were filed, to which payment was pleaded, with notices subjoined of giving the discharge, &c., in evidence; but as, on procuring a copy of the proceedings under the insolvent law, the discharge itself could not be found, the attorney of the defendant wrote to him in the August following, communicating this cir- cumstance, and requesting him to make in- quiry after it. On the cause being noticed for trial on the 12th of December in that year, the defendant's attorney again wrote to him, re- peating the contents of his former letter; and urging him to attend personally, that measures might be taken to procure the discharge, or substantiate by parol evidence its former ex- istence and loss. The first of these letters did not reach the defendant till the middle of Sep- tember, the latter not till the 29th of Novem- ber, then next. To each of these the defend- ant replied, stating that in consequence of a fractured leg, he was utterly unable to travel, and desiring the trial to be postponed till the February following, as, by that time, he hoped to be able to procure the discharge, which had been given to Mr. Du Boys, the then sheriff of Dutchess, to warrant his release from confine- ment. The first of these answers never came to hand, and the latter which was received bore date on the 18th of December; but though the discharge itself was not found, the attorney employed for the insolvent, who was also assignee of his estate, swore that the discharge had been obtained on a due and full adherence to the requisites of the act, and that he was then petitioning Congress for the lands to which *the defendant was entitled as [*455 an officer in the revolutionary army, in conse- quence of their having passed by the assign- ment of the insolvent's estate. None of these circumstances, however, appeared when the inquests were taken; for the counsel of the defendant, when the causes were called on, refused to answer the court whether there was any defence, thinking that he was not bound to do so, and in consequence of this silence the inquests were taken. Per Curiam, delivered by SPENCER, J. : The inquest is regular. Counsel, if present, ought to answer whether he believes there is a defense. The time at which a trial shall come on is not the privilege of a defendant, but is adopted from a regard to the seniority of is- sues. Infinite delay would take place in cases where no dispute exists, if the counsel were to be mute when required to state whether there be a defense. It appears, however, that the defendant has been discharged under an insolvent act, and by accident has not been able to produce his discharge to his attorney. But though the court will not decide in this way, whether parol evidence might or might not be given of its loss and contents, yet they 13 193 455 SUPREME COURT, STATE OP NEW YORK. 1805 will regard the peculiar situation of parties. In this case the defendant lives remote, and was from that circumstance, and infirmity, prevented from attending to these suits at an earlier period. The moral obligation, under which the defendant is supposed to labor, of paying his debts, is not to operate with the court, unless a new liability has been incurred. From the misconception of counsel, the re- mote distance of the defendant, his infirmi- 45tf*] ties, and his having a *meritorious defense, the court grant the application upon payment of costs. ANONYMOUS. Plea In Abatement Withdrawal of General THE court refused to permit the general is- sue to be withdrawn to let in a plea of coverture in abatement, delivered after service of the general issue, though the defendant swore the general issue was pleaded without his knowledge, by a person he never meant to retain as attorney, and the plea in abatement was delivered in due time. SAMUEL BAYARD v. SAMUEL B. AND RICHARD M. MAL- COLM. Argument Notice of Motion Counsel's Forget- fulness. THE notice of motion was not for the first day of the term. Mr. Munro accounted for this by an affidavit, stating that he had absolutely forgotten the day on which the term commenced, imagining it to be one week later than it really was. Mr. Ilarison, contra, objected to the reception of this excuse, as Mr. Towt was the attorney on the record, therefore for him the forgetful- ness of Mr. Munro could afford no excuse. Per Curiam. There can be no doubt of the mistake, nor but that the whole is in good faith. Though Mr. Towt appears the attorney on record, everyone knows the connection be- 457*] tween him and *Mr. Munro. He is to be supposed to act only under the direction of Mr. Munro. SAMUEL STRYKER v. THOMAS TURNBULL, ROBERT DENTON AND BERNARDUS VOORHEES. Foreign and Struck Jury Right of Fishery on Long Island. HARISON, on behalf of the defendants, moved for a foreign and struck jury, to be taken from the City and County of New York, on an affidavit, stating that the suit wax prosecuted at the joint expense of the in- habitants of the town of Gravesend in King's County, who had combined for maintenance of a supposed right, claimed by them as in- habitants of the said town, of erecting huts for the purpose of fishing, upon the lands of the defendants; of taking and heaping up sea- weed, and carrying it away at their pleasure, and that other claims and disputes, in some respects of a similar nature, exist in the neigh- boring county of Richmond. Mr. Baldwin, contra. The same principle would warrant the application in most insur- ance causes. Those interested in a point, con- tribute their quotas towards the defense. No more is done here. But why not take the jury from Queen's or any other county on Long: Island? KENT, C. J. This is a cause in which the right of fishery will come in question. Where the counties are so small as these mentioned,, an impartial trial cannot be had on a claim of a general nature. New York is as near as any other, and where a right of fishery, or any similar claim is to be litigated, it is, in my *opinion, sufficient to take the matter [*458- from a Long Island jury. The expense is at the door of the party who applies, and the contribution to support the suit shows strong- ly the disposition of the county. THE PEOPLE v. JESSE BURDOCK AND JONATHAN CASE. Filing Record Nunc pro tune Record Lost. AN indictment found against the defendants for a forcible entry and detainer, in April Term, 1798, had, on being removed into this court, been quashed, and restitution ordered, but the record of it could not, on search in the clerk's office, be found. Mr. Riker applied for leave to file a record nunc pro tune, on an affidavit 03- the attorney ein ployed in the prosecution, disclosing the above facts, and that, on an examination of his reg- ister, he found not only that a record had been duly filed, but that he actually obtained an ex- emplification of it, which had been lost. Granted accordingly. DANIEL DELAVAN v. JONAS C. BALDWIN. Change of Venue Default of Plea Pka ac- cepted Trial not lost. MOTION by the defendant to change the venue from the City and County of New York, to Onondaga. In November last, at which time the plaint- iff was entitled to enter a default for want of a plea, notice of a similar motion was given, but from the papers not having been received in season by the agent of Baldwin's attorney, the; application was not then made. *Iu [*45J> COL. AND CAINES, 1805 JAME; ROOSEVELT v. DANIEL, S. JEAII. April a plea of the general issue was given and received. Mr. Munro, contra. The defendant is too late. KENT, C. J. I am of opinion the venue ought to be changed as there has been no loss of trial, and there will be no delay. This, I think, ought to be the regulating principle, as these appli- cations are to the discretion of the court. LIVINGSTON, J. I am against departing from the practice by which defendants are restricted from making these motions after plea pleaded. Nor do I think there is a sufficient reason for not having asked for this favor in November last. But what weighs greatly with me is that the application is on the eve of a circuit, and may impose rather hard terms on the plaintiff. SPENCER, J. I concur in the sentiments of my brother Livingston. . THOMPSON, J. The only difficulty in my mind, was with regard to this request being after issue joined, subsequent to which, all increase of expenses ought, if possible, to be avoided. But as no delay will be created, I think we ought to grant the rule, and had the plaintiff shown any hardship likely to arise from it, we might have imposed such terms as to prevent any injury. The laches I consider to have been entirely waived by accepting a plea. 46O*] *TOMPKINS, J. That is the opinion I entertain. When a plaintiff receives a plea which he is not obliged to take, he cures the antecedent laches. I agree therefore with the Chief Justice and Mr. Justice Thompson. JAMES ROOSEVELT t>. DANIEL S. DEAN. Argument Preliminary Objections. A FTER a long and desultory argument, the j.\. counsel for the plaintiff took an exception to the titling the notice of motion, and affida vit on which founded. Per Curiam. All objections of this sort ought to be submitted as preliminary questions. We are not to sit here, have the grounds of motion laboriously investigated on a long dis- cussion, and then have a matter of mere form pressed upon us. The entering into the argu- ment is a waiver of all objections against its coming on. %* The court in this cause said that when an affidavit does not state that which ought to be alleged in support of the motion, the pre- sumption is it could not be asserted, and the inference of the bench will be against the party guilty of the omission. JACKSON, ex dem. RACHAEL LEWIS ET AL., JOHN VAN LOON. Commission To Resident of Another State 1 Rev. Laws, 351, sec. 11. TTTOODWORTH mpved for a commissiotn o VV be directed to persons in this State, to COL. AND CAINES. take the examination of "witnesses in Pennsyl- vania. *Mr. Riggs, against its being allowed, [*461 urged the direction. Per Curiam. The act 1 does not specify that the commissioners should live in the State to which the commission is addressed. Take your motion. ANONYMOUS. Certiorari Further Return of Justice Conduct of Jury. THE application was for a rule ordering a jus tice to return certain parts of the conduct of the jury, which, it was said, amounted to misbehavior. Per Curiam. The justice is not answerable for this, nor was it a matter before him. We cannot order him to return that over which he had no judicial control, and which was never submitted to him. RADCLIFF AND DAVIS v. THE MARINE INSURANCE COMPANY 1. Stay of Proceedings Vacatur by same Judge in Term. 2. Idem On Improper Item al- lowed by Jury Relinquishment. Citation Ante, 94. HTHESE points were ruled: 1st. A judge -L may grant and annul his own order to stay proceedings on a case made as well in term as in vacation, and this, though a rule for judgment be entered, the decision in Shep- herd ads. Case (ante, p. 94), applying to judg- ments perfected. 2d. If a judge has granted an order to stay proceedings on a case made, on account of an improper item allowed by a jury, and he declare this to have been his only reason, the court may, on such item being re linquished, vacate the order. *BIRD, SAVAGE & BIRD [*462 v. PIERPOINT. Case Made Application to Enter Judgment. A CASE having been made, after a verdict in this cause for a very considerable sum, the justice of the demand to which was not so much questioned as whether it should be paid to the plaintiffs or the assignee of one of them; . Mr. Radcliff, on an affidavit showing tLat the debt was actually due, moved for liberty to enter up judgment, in order to bind the lands of the defendant. 1. For the amtndmon* of f h<> aw, 1 Rev. Laws, 351, sec. 11 195 462 SUPREME COURT, STATE OF NEW YORK. 1805 Messrs. Riggs and Hoffman, contra. Per Curiam. We are all of opinion that you can take nothing by your motion. There would be no limitation to this kind of prac- tice. It would be asked in every cause and'in every stage. A verdict is no evidence of right; in many cases no more than filing the declaration. To the country at large such a principle would operate very injuriously. In the English courts such a measure has never been attempted, though from the practice of directing in important cases, two and even three arguments, the delay must sometimes be very great. It is a mere matter of possibility where the justice of the case is. To make a rule here, we must do so in all cases, and the result would be that wherever there was a cer- tificate to stay proceedings it would be followed by a judgment. The plaintiffs show no right to the debt, though it may be due, and as to the sum, $100 to some persons are of as much importance as $1,000 to others. We therefore deny the application with costs for resisting. 463*] *GILES v. CAINES. Default Plea delivered but not filed Notice of Trial^CostsPlea. Citation A nte, 94. A FTER noticing for trial, it was discovered .Q- that the defendant's attorney had not filed the plea, a copy of which he had deliv- ered; the plaintiff therefore entered a default as for want of a plea. To set aside this the defendant noticed for the first day of term, but having obtained no order to stay proceed- ings and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry. On these facts and a strong affidavit of a g'ood and substantial defence upon the merits. Mr. Caines moved to set aside the default and all subsequent proceedings. There was a dis- tinction to be taken, he said, between the cir- cumstances here and those in Shepherd ads. Case (ante, p. 94). There the plaintiff had done no act to waive the default, and therefore as it stood in full force, his perfecting his judgment afterwards was regular; but in the present instance he had, by joining issue and noticing for trial, waived the mere form of filing the plea, and had no default on which to rest. He had himself knocked away the foundation on which he stood. As to the want of filing the plea, that was from a mere form and the court would order it to be done on the suggestion of the plaintiff himself. (Cohan ads. Kip, ante, p. 50.) Mr. Evertson, contra. This is not to be distin- guished from 8hep?wrdadn. Case. The plaintiff could not waive that which he did not know. 4-O4*] *Per Curiam. The omission of filing the plea, not being known when issue was joined, or the cause noticed, cannot be cured by those acts. The principle, therefore, of Shepherd ads. Case, applies. Though there is a strong affidavit of merits, we can relieve only on terms; those must be payment of costs and filing the plea instanter. 196 AUGUST TERM, 1805. DEODATUS CLARK v. ISAAC FROST ET ux. 1. Default Merits contradicted. 2. Motion Affidavits Copies. SIMONDS, on an application to set aside a default and all subsequent proceedings, relied on an affidavit rn^ade by the defendant's son, setting forth an agreement to stop all further measures in consequence of a settle- ment then made, and showing as a cause for the deposition being by the son, that his par- ents were so old and infirm they could not go to a commissioner to be sworn, but that he, the deponent, having been employed to take care of their interests, was perfectly acquaint- ed with the merits of the cause and all that had taken place. Mr. Gold, in opposition, read four depositions flatly contradicting the settlement and the in- ability of the defendants; and also stating the deponent on their behalf to be a person totally devoid of all credit. He *also con- [*4(>5 tended that the motion ought to be founded on the affidavit of the party; therefore, that by the son ought not to have been read. Mr. Sitnonds, in reply, offered affidavits to support the character of the son, by showing the settlement he mentioned had actually taken place. Per Curiam. We will allow affidavits or other documents to be adduced to establish the general reputation of a person whose character has been impeached, but we cannot hear anything supplementary read to substan- tiate the ground of motion. Copies of all that is relied on for such a purpose should be served. In the present instance the incapacity of the defendants is denied; and when a third person makes an affidavit, a sufficient reason should be shown why it was not by the de- fendant himself. Besides, a commissioner ought to have gone to their house; and was the affidavit of their son to be received, it would still be insufficient; for it should have set forth what settlement was made, as it might have been conditional. Take nothing by your motion and pay the costs of resisting. ELIJAH RANNEY .. JOSEPH CRARY. 1. Costs Joinder in Error Non pros Discon- tinuance. IN a former term, this cause had, after join- der in error, been brought up for argument, but the court observing that the justice had made no return to the certiorari attached to the papers, directed a rule ordering one by the first day of the next term. Before a service of this could be effected, the justice* [*4 had quitted the State, and had never returned within it. COL. AND CAINES. 1805 REED v. BOGARDUS. 466 Mr. Breese, for the defendant, now moved to non pross the writ and have his costs allowed. Per Curiam. Why did you join in error? Your costs are of your own seeking and with- out any fault in the plaintiff. You may sue out execution on your judgment below, but the plaintiff must have liberty to discontinue without costs. REED v. BOGARDUS. Costs Trial delayed by Court. WHERE a judge cannot try a cause or a circuit falls through, the costs abide the event of the suit. JOHN HOLMES v. ELISHA WILLIAMS. Argument Notice Sufficiency of Affidavit. THE affidavit of service of notice, stated it to have been by leaving it at the dwelling house of the agent of the attorney. Per Curiam. It is not sufficient. You ought to have stated that the ayent was absent and to whom delivered. GARRITT BOGERT v. DAVID BANCROFT. Argument Notice Counsel signing for At- torney. WILLIAMS moved in this cause, on a notice signed by himself , " f or A. B.," the attorney. Mr. W. P. Van Ness excepted to the signature as not being that of the attorney himself. 467*] *Mr. Williams, in reply. He is in em- barrassed circumstances, and could not be found. But independent of this, the signature is sufficient. Stipulations signed by counsel alone have been held good ( Wilcox v. Wbodhull); so his subscription to a case made at a cir- cuit is sufficient. Per Curiam. Under the circumstances of this case we think the signature sufficient. But we do not by this mean to say that sub- joining the name of a counsel in the cause, is, in these incidental proceedings, adequate to that of the attorney. We rather think it is not. JACKSON, ex dem. FISHEB, v. FERGUSON. Nonsuit Trial not had Time lo prepare Affi- davit. ON a motion for judgment, as in case of non- suit after due service, and when the at- torney was in court, the counsel for the plaint- iff asked till the next non-enumerated day, to prepare an affidavit in opposition. COL. AND CAINES. Per Curiam. To entitle to such a favor, some reason should be offered, evincing why the affidavit could not be prepared; because the period of service ordered by the rules of the court, is, otherwise, presumed sufficient to enable the party to be ready. The effect of the motion cannot, therefore, be delayed. THE PRESIDENT AND DIRECTORS OF THE NEW WINDSOR TURNPIKE ROAD WILSON. Change of Venue Local Prejudice. FISK, in an action for running a road parallel to that of the corporation, in order to draw off and injure *the toll, moved to [*468 change the venue from Orange to New York, on an affidavit stating that from the prejudices of the county against turnpike roads, an im- partial trial could not be had. Per Curiam. It is impossible to conceive that in so large a county as Orange, twelve indifferent men cannot be obtained to try a cause against an individual, for his sole act. In such small counties as Richmond, where fishery rights are concerned, in which almost the whole community is interested, the gen- eral dispositions of the people may warrant the application; but if it be allowed in the present instance, on every turnpike cause we shall have similar requests. Why not go into Dutchess, if it were necessary to take the trial to another county ? The present motion must be denied, though the reason on which it is founded might be a good reason for asking a struck jury. JACKSON, ex dem. ROOT, . STILES, VANBTJSKERK, Tenant. Affidavits before Judge of Common Pleas and Commissioners Addition of Official Descrip- tions. IT was ruled in this cause that the jurats of affidavits taken before judges of the Com- mon Pleas, or commissioners, must be signed by them, with the addition of their official descriptions; judges of the Common Pleas to sytle themselves such, and commissioners to specify that they are so. BROOKS v. HUNT. Nonsuit Trial not Tiad Sufficiency of Affidant Venue. HENRY moved for judgment as in case of nonsuit on an affidavit, merely stating for "not bringing *the cause to trial [*469 at the last circuit, in and for the County of Montgomery," according to the practice of the court. 197 469 SUPREME COURT, STATE OK NEW YORK. 1805 Mr. Pains, contra, objected, that it did not specify where the venue 1 was laid. Mr. Henry insisted it appeared from irresisti- ble implication to have been in Montgomery. Per Curiam. The affidavit is defective. Had this cause been with a venueva. New York, the same mode of swearing would have en- titled you to your judgment. We are not to infer facts from affidavits, when the party has it in his power to state them positively. The motion must be denied. JACKSON, exdem. COHLEY, v. VALENTINE. Nonsuit Trial not had Junior Issue Unex- pected Opportunity. WHERE, on the last day but one of a cir- cuit, there appear so many old causes to be tried that the judge himself is of opinion that a young issue could not be brought on, and, from this conviction, so many of the suitors go home, that an unexpected oppor- tunity offers of trying a cause, the plaintiff in which had, with his witnesses, left the circuit, the court said, he was not in default, and, on a motion for judgment as in case of non- suit, not only refused the application, but ex- cused from costs and stipulation. 47O*] *KIBBE AND TITUS v. STODDARD. Calendar Preference Demurrer Simple Notice Frivolous Demurrer. T7MOTT moved in this cause for judgment -[j on a frivolous demurrer, on which ac- count he claimed a priority, upon a simple notice of bringing on the cause to argument. \Per Curiam. Your notice should have stated that you meant to apply on account of the frivolousness of the demurrer, otherwise you cannot gain any preferenpe. WILLIAMS v. GREEN. Reference Order of Circuit Court Gouts. IT waa ruled that a circuit court cannot order a cause to be referred under the statute. 2 That any award, therefore, under a rule for a reference granted at a circuit, must be set aside, but without costs, as the rule, though a nullity, is an act of the court. 1- This ingredient is not required by the English practice. See Tidd's Forms, 14 ; 1 Sell. Prac., 365, c. 2. Act for the amendment of the law, 1 Rev. Laws, 348, sec. 2. 198 COFFIN, Executor, v. TRACY. Jurisdiction Justice's Court Executor Con- fession of Judgment. IN error from a 10 court, the defendant re- lied on the now plaintiff's having confessed judgment in the inferior tribunal, and, there- fore, this case was distinguishable from those, in which the court had determined an execu- tor could not sue before a justice of the peace. Per Curiam. Consent will take away error, but neither that nor confession will give juris- diction. N. B. This cause was tried in the court below before the act of the last session. *SHADWICK v. PHILLIPS. [*47 1 Nonsuit Trial not Iwd Verbal Agreement of Parties to put off. Citation Ante, 7. ON an application for judgment as in case of nonsuit for not proceeding to trial, the affidavit stated that the plaintiff, as he was going to subpoena his witnesses, met the de- fendant, who said he could not procure his in time, and begged him not to bring on the suit. This he consented to, and the verbal agree- ment thus made, it was insisted, took the case out of the operation of the twelfth rule of April, 1796, which, it was argued, was obliga- tory only on officers of the court. THOMPSON, J. The simple question is as to the validity of the agreement; whether the court is not bound to notice it, though not re- duced to writing. Our rule (ante, p. 7) is, "That no private agreement or consent be- tween the parties, &c., shall be alleged or sug- gested by either of them against the other, unless the same shall be reduced," &c. We think that it ought to extend to parties, as well as attorneys in the suit. Such must have been the intention of the court; otherwise it would have been restrained to such as were entered into between attorneys. The words of the rule warrant our determination. It is as necessary between parties as their attorneys, and enforcing this construction will prevent much altercation. There is no difficulty in re- ducing any agreement into writing. In the pres- ent instance, indeed, the existence of the en- gagement is not contradicted, but it is not ad- mitted; and if it be of no validity, it was unnec- essary it should be denied. There may* [*4 7 12 be a hardship in this case, but the court can- not violate what they think a proper and cor- rect rule to enforce. But even the hardship will in some degree disappear if we advert to the affidavits, which state that the parties in- formed their attorneys of the arrangement. It was, therefore,, their duty to go on, not- withstanding what passed between their clients. SPENCER, J. I cannot coincide in this decision. It is true, with the general law of the laud no man is supposed to be unacquaint- ed, and, therefore, ignorance of it is no ex- cuse. But this presumptive knowledge is not to be extended to our private rules of court. COL. AND CAINEB. 1805 FALL AND SMITH v. JOHN BELKNAP. 372 Our officers, indeed, may be supposed con- nusant of them, for they are intended to be always present here in person. In this case now before us, the rule operates most un- justly. A plaintiff on the way to subpoena his witnesses, meets a defendant, and to oblige him, because he could not be ready with his, consents not to bring on the cause, and merely on account of this agreement not being re- duced to writing, he is now to be nonsuited. I think the practitioners in this court were the subject matter of the rule, and it ought, to affect them only. TOMPKINS, J. I fully concur in the opinon last given. LIVINGSTON, J. I did not intend to have given my reasons for coinciding with the de- cision pronounced by Mr. Justice Thompson. But to me it appears of more importance that the rule should apply to parties than attor- neys. The latter, if they abide honorably by their engagements, know exactly the 473*] extent* of them, and to what they ap- ply; but a suitor can hardly ever determine the effect of his own words, and we shall have eternal disputes upon how far they mean to go. The construction now made is clearly within the letter of the rule, and were it to be made anew, I should be for its com- porting with the present decision. KENT, C. J. his motion. The defendant takes nothing by FALL AND SMITH, Overseers of the Poor of New Windsor, v. JOHN BELKNAP. Argument No Opposition Affidavit of Ser- vice. IF an affidavit of service state that the party did serve his opponent with notice of bringing on the cause to argument, it is, without setting forth or producing the no- tice itself, sufficient to entitle to judgment, if the opposite side do not attend. BRANDT, ex dem. PALMKH, V. BERRIAN. Trial Verbal Agreement to Arbitrate Admit- ted Costs. THIS was an application for the costs of the last circuit at Westchester, upon an affi- davit that just as the plaintiff was ready for trial, the defendant verbally agreed to leave the matter to arbitration, which, he had since refused to do, though, from a reliance on his promise, the cause was not brought on. Mr. Munro admitted all the facts, but said he was not authorized to consent to the motion. 474*] *Per Curtain. When an agreement, though by parol, is admitted, and its being COL. AND CAINES. merely verbal not urged against it, or relied on, it ought to have its effect. But in this case, the plaintiff is premature in his applica- tion. He must wait till the costs of suit are taxed, and then he will be entitled to them. JACKSON, ex dem. ROSEKRANS, v. HOWD. Agreement Notice Affidavit of Service. T'HE affidavit of service was by the attorney on information from his clerk that it had been duly made, according to an indorsement on the notice produced, made by the clerk who had quitted this State, and gone into Connecticut, where he then was. Per Cnriam. The affidavit is sufficient, and as full a tJie circumstances of the case would admit. STEPHEN OLNEY EBENEZER BACON. Default Misapprehension Accident Terms. AN order had been obtained, on behalf of the plaintiff, to stay the proceedings, till the fourth day of last term, for the purpose of affording an opportunity to move for a rule, directing the justice, in the court below, to amend his return, by inserting a written document adduced in testimony before him. By some accident, the attorney intrusted with the papers did not arrive in New York till after the fourth day, and on the sixth, the defendant entered a default against the plaintiff for not assigning errors according to notice, after which, the plaintiff, on the last day of the term, obtained his rule to amend, no one appearing to oppose. *Mr. Woodworth, on these facts de- [*475 tailed by affidavit, moved to set aside the de- fault and subsequent proceedings. Mr. Foote, contra, relied on a stipulation en- tered into between the attorneys in the cause, by which it was agreed that the written evidence referred to in the return was the order or draft therein mentioned. This, he contended, was adequate to the amendment to be moved for, and superseded the necessity of applica- tion; therefore, errors not being assigned at the time the order expired, the defendant was reg- ular in his default. Mr. Woodworth, in reply. The stipulation reached only to the identity of the paper, the mere production of which was not evidence, and the object of the motion was to procure a return of it, to show it was no testimony, with- out being corroborated by witnesses. Besides, when a party does not 'appear to oppose, he waives all objections. (Ekhart \. Dearman, ante, p. 422.) Per Cun'am. The stipulation was defective, for the object of the plaintiff could not have I been obtained by it; nor does it state to have 199 475 SUPREME COURT, STATE OF NEW YORK. 1805 been made with a view of superseding the necessity of an application to the court. But the order to stay proceedings, having in fact expired before the default for not assigning errors was entered, the defendant was regular; though, as there has been some misapprehen- sion, and a delay from accident, it must be set aside on payment of costs and assigning errors in twenty days. 476*] *TEUNIS QUICK BENAJAH MERRILL. Default No Notice of Retainer Notice of Bail Clerical Mizprwon. IT did not appear that notice of retainer of attorney for the defendant had been re- ceived, but notice of bail was admitted, an ex- ception to which was taken (on a motion to set aside a default, and other proceedings, ac- companied by an affidavit of merits), that it was entitled " Benajah Merrill ads. Jeunis Quick;" and the want of notice of retainer was also urged. Per Curiam. Notice of bail necessarily imports a notice of retainer as attorney. As to the title of the notice, the ruling principle is, that if the party served be not misled, or the papers be not such as evidently may mislead, a mere clerical misprision shall not prejudice. It does not appear that there was any other cause depending against Merrill. In liberal practice, the notice ought to have been re- ceived, and the objections must, therefore, be overruled. ABRAHAM BOYCE REUBEN MORGAN. Judgment Reversal Premature Action Com- mencement of Suit Writ or Declaration. Citation Ante, 170. IN error on certioran, upon an agreement entered into on the 28th of December, not to sue a third person, the gravamen was laid, that he, since that time, had sued, and the sum- mons was dated on the day of the agreement. On this, the defendant below insisted on a nonsuit; but the plaintiff refusing to submit to it, a verdict was given in his favor. It was now contended that the levying the plaint was the commencement of the suit; but the court, on the authority of Jjtncry v. Lawrence (ante, 47 7*] p. 170), *ruled that issuing the sum- mons, or warrant, was the beginning of the action, and reversed the judgment; the suit appearing on the face of the record to have been instituted previous to any cause of action accrued. JACKSON, ex dem. NORTON, 7?. STILES, GROVER, Tenant. Ejectmentr Default Plea of Court Cost*. RUSSEL moved to set aside the default and all subsequent proceedings, on an afti- 200 davit admitting due service of the declaration and notice, but adding that he thought the Supreme Court, at which he was noticed to ap- pear, sat at Salem, in the county where the lands in question lie; nor did he know to the contrary till a few days before the Circuit Court, when he was first informed that the Supreme Court did not sit at Salem, and that the court held there was only for the trial of issues joined in the Supreme Court, and that he had a good and substantial defence. Mr.Shephard, contra, insisted that the sittings of the Supreme Court, being regulated by stat- ute, were matter of general notoriety, and there- fore no excuse was shown for the default. Besides, there had been a loss of a trial. Per Curiam. This is in ejectment: were we not to interfere, the possession would be changed. Take your motion on payment of costs. WILSON v. GUTHRIE. Default Mistaking Court Costs. ON an affidavit by the defendant that when served with the writ in this cause he sup- posed the suit *to be in the Common [*478 Pleas, and had "a substantial defence," cor- roborated by the deposition of his attorney, that he was retained to defend upon informa- tion by the defendant that the suit was in the Common Pleas, and he knew not to the con- trary till he gave notice of retainer, the court set aside a regular default and subsequent pro- ceedings upon payment of costs. HINCKLEY v. BOARDMAN. Taxation of Costs No Contest Waiver. EUSSEL, on an affidavit stating that in the present suit the recovery had been less than $250; that the verdict had been set aside on payment of costs, which had been taxed at those of this court, and paid over, moved, on the part of the defendant, that the taxation should be reviewed, and everything received beyond the costs of the Common Pleas re- turned. Mr.Snephard,con\r&, read an affidavit, stating that after the rule to set aside the verdict had been obtained, he, as attorney to the plaintiff, made out the bill of costs, and submitted it to Mr. Russel, who made objections to some items, all of which were immediately struck out. That notice of taxation was then duly served, but no person attending on behalf of the defendant, the bill was taxed ex-parte, the costs received, and the allowance for the at- tendance of witnesses actually paid to the plaintiff. SPENCER, J. When the motion was made for a new trial, we were asked to grant a favor; the terms on which we would accord it, were in our discretion, *and had costs been [*47D COL. AND CAINES, 1805 WITMORE v. RUSSELL. 479 " ~-i*" mentioned, we ought, in my opinion, to have allowed those of this court. THOMPSON, J. I do not think so. The rule was intended to be on payment of legal, taxa- ble costs. It is not to be supposed that a plaintiff should, on a defence, recover more than on a default. LIVINGSTON, J. When interlocutory mat- ters are set aside, we ought not to look for- ward to what might be recovered, or back on that which has been; Supreme Court costs appear to me the most proper to be awarded. TOMPKINS, J. I conceive when the verdict was set aside, it was on payment of such costs as were legally due. But I consider the de- fendant, by not attending the taxation after service of a copy of the bill of costs, to have waived all opposition to their amount. KENT, Ch. J. He should have appeared and contested the taxing. His not doing so is a waiver of his right. Had it been otherwise, I should think the costs of the Common Pleas only were recoverable, though we certainly might have allowed Supreme Court costs had we pleased so to do. As things are, you can take nothing by your motion, and must pay the costs of resisting. WITMORE v. RUSSELL. Costs Nonsuit Costs of Former Stipulation. ON an application for judgment, as in case of nonsuit, the defendant wished to in- 48O*] elude, in the costs *now ordered to be paid, on stipulating, those taxed on a former stipulation, given without motion, but not entered with the clerk. Per Curiam. You should have filed your stipulation, entered a rule nisi for judgment, served a certified copy of the rule, with a taxed bill of costs, and made a demand of payment. You can take nothing by your motion unless you account for the not doing so. N. B. This being done, the defendant ob- tained his costs, but the plaintiff had leave to stipulate again. NATHAN LEONARD v. GIDEON SUNDERLIN. Amendment of Justice's Return Sufficiency of Affidavit. O HEPHARD moved for leave to permit a jus- O tice to amend a return on an affidavit, stating that it was made out by one of the at- torneys in the suit, and on examination he finds it " incorrect in point of fact, and defective as it existed before him." Per Curiam. The affidavit is insufficient. It should have specified the points in which it COL. AND CAINES. was intended to amend, that we might see whether the errors now existing were material. JACKSON, ex dem. METCALFE, v. WOODWORTH. Nonsuit I 'rial not had Sufficiency of Affidavit. THE affidavit for judgment, as in case of nonsuit in this cause, was made by the clerk of the attorney for the defendant, and though it stated a notice for trial, it did not allege that the suit was not tried. *Mr. Weston, for the plaintiff, relied on [*48 1 the above circumstances as conclusive against the application. Per Curiam. For the reasons assigned, you cfin take nothing by your motion. VAN RENSSELAER v. HOPKINS, Bail of SHELDEN. Bail Time to Surrender Distances Fi. fa. against goods of Principal Exoneretur. T7MOTT moved for time to surrender the -1-J principal on an affidavit by the bail, stat- ing that the capias, returnable on the first day of this term, was not served on him till the 22d of July; that Shelden resided 75 miles west of him, and he himself near 300 miles west of Albany, to which place it was necessary to send for a copy of the bailpiece, so that it was impossible to make the surrender in due time. That the plaintiff had sued out a f. fa. against the goods of Shelden, which the depo- nent had been informed, and at the time verily believed to be true, was a complete exonera- tion from his liability. Per Curiam. Take your' motion. GARDINIER v. CROCKER. Default Defendants Attorney Misled Costs Plea. YAN NESS moved, in an action of as- . sault and battery, to set aside the de- fault and subsequent proceedings on two affidavits: one by the defendant, stating that he thought the writ was returnable as of this term, and had a good and substantial defence; the other by himself, that he had been retained to defend, but was informed the writ was re- turnable the *first Monday in this Au- [*482 gust, and had not, therefore, given notice of retainer. Mr. Van Vechten, contra, stated the writ to have been returnable in May. Per Curiam. Take, your motion, on payment of costs and pleading issuably. 201 4S2 SUPREME COURT, STATE OF NEW YORK. 1805 VAN DRISNER t>. CHRISTIE. Judgment Dower Real Action* Motion in Open Court. IN dower, and all real actions, judgment can- not be entered without motion in open court. WILLIAM MEIKS . NOADIAH CHILDS. Security for Costs Costs Taxed Delivery of Bnd by Cterk Application to Court. f pHE clerk cannot give up bonds filed for I security for costs in an action where a non-resident is plaintiff; the application must be to the court, and the affidavit on which it is founded should state the due taxation of costs, the name of the surety, and the non-residence of the plaintiff. BENJAMIN M. MUMFORD v. PETER A. CAMMANN. Change of Venue From Kings County to New York County Witnesses. THIS was an application to change the venue from the County of Kings to the City and County of New York, on an affidavit that all the witnesses of the defendant resided in the city of New York. Per Curiam. The rule we have laid down, as to allowing the defendant to bring back the renuf, when his witnesses reside in the county 483*] to which it is to be *removed, and the plaintiff does not show he has any where it is laid, cannot apply to a case like the present. The court-house of the County of Kings is so contiguous to the city of New York, that there is no hardship in carrying witnesses from one place to the other. There is hardly a county in the State in which the witnesses who attend a trial do not travel farther than they will in the present suit. Take nothing by the motion. JACKSON, ex dem. CRAMER, v. STILES, WILLIAMS, Tenant. Attachment Cost Nonsuit Lease Entry and Ouster not Confessed. ON motion for an attachment for not paying costs, on account of the plaintiff's being nonsuited, for want of confessing lease entry and ouster, the affidavit must state that the person demanding them of the tenant was duly authorized by the lessor of the- plaintiff, according to the English practice. (Run. Eject., 415.) 202 BRANDT, EX DEM. M'CLELAND, v. BURROWS. 1. Nonsuit Trial not had Costs Stipulation. 2. Idem Waiver Commission. SCOTT insisted that the notice of motion for judgment, as in case of nonsuit, was waived by giving subsequent notice of an ap- plication for a commission. Per Curiam. The defendant knew you were entitled to stipulate; he, therefore, comes pre- pared, if you do that, to make his other mo- tion. If you elect to have judgment of non- suit against you, it is in your power. If not, you must stipulate, and then the motion for the commission will be granted. *JACKSON, EX DEM. LAWYER, [*484 v. STILES, PALMITIER, Tenant. Ejectment Admission of Tenant to Defend Notice. QUACKENBOS objected to the notice of motion to set aside proceedings against the casual ejector, and that the tenant might be admitted to defend, because it was sub- scribed "attorney for the tenant." Per Curiam. There is nothing in the objec- tion. STEPHEN REYNOLDS v. DANIEL BEDFORD. DANIEL HERRICK v. DANIEL BEDFORD. 1. Justice's Court Overruling Demurrer. 2. Idem Sicearing Constable to attend Jury. Citation-Ante, 381 ; 4 St. L., 476, ch. XCIII. ON a certiorari in these causes to a justice's court, the errors relied on were that in one it appeared on the face of the record, the jus- tice overruled a demurrer to evidence, without any demand of judgment from the opposite party, on his having joined in it; till which period, it was contended, there was no issue in law. That in the other, the constable, though said to be duly sworn, appeared not to have been so, as the oath set out was only "to at- tend the said jury, and to keep them together in a private place until they had agreed on their verdict;" and that in both cases the wit- nesses were sworn "to maintain the action," instead of "to declare the truth." Mr. Cady, for the plaintiff, on the first point, cited 4 Bac. Abr., 137 (old edition), and on the last, Day v. Witter (ante, p. 381). *Per Curiam. In the first of these [*485 causes we think there is no error in the point relied on. The justice, in our opinion, was COL. AND CAINES. 1805 GIVEN v. DRIGGS. 485 correct in overruling the demurrer. The act conferring jurisdiction to justices of the peace, gives to either party the right of trial by jury; and, when it is considered generally that the justices cannot be much acquainted with the science of the law, it cannot be important to the parties litigant to draw the examination of facts from the jury to the court. An act of the last session enables every party aggrieved to obtain a special return of the facts (4 Sta. Laws, 476, ch. xciii.), and this, we think, ought to supersede demurrers to evidence. They are frequently interposed to entangle justice in the nets of the law; and we mean to be understood, that the inferior magistrate rightly overruled it, on the ground that it is a proceeding inap- plicable to suits under the ' ' act for the more speedy recovery of debts to the value of twenty- five dollars. The judgment in that cause must, therefore, be affirmed. In the second, it must be reversed, agreeably to the decision in Day v. Wilder. For the justice has undertaken to set forth the oath he did administer; and as it is materially variant, the word "duly" cannot be of any avail. GIVEN v. DRIGGS. Inquest Notice to Appoint New Attorney Rule- of Court. A FTER a new trial had been ordered in this IA. cause, the plaintiff, on the 30th of June, 1804, personally served the defendant with a written notice of it, requiring him to appoint a new attorney, as his former one had been pro- moted to the bench, and that in default of so 486*] doing, all subsequent notices would *be served by affixing the same in the office of the clerk of the court. The defendant not having nominated any new attorney, the plaintiff gave notice of trial in the manner above mentioned, and, at the last Albany circuit, took an in- quest by default, upon which judgment had been entered and execution sued out. Mr. Williams, on the above facts, now moved to set them aside, contending that the notice to appoint a new attorney ought to have been by a rule of court ordering it to be done. Per Curiam. In the case of Bennet ads. Vielie, July Term, 1802, it was decided that the party must be warned or he is not bound to take notice of the proceedings, and in Harvey ads. Ilildrith, January Term, 1803, we ruled that the defendant must have personal notice, or such as the court would deem tantamount. Our statute, like that of Hen. IV., requires a warning, and the personal service here was a sufficient one, without any rule of court. The defendant was grossly in default, as nine months elapsed before the plaintiff went on. We think thirty days a sufficient and reason- able notice in these cases. You can, tlierefore, take nothing by your mo- tion. BEADLE v. HOPKINS. Covenant Plea of Performance Notice of Special Matter. IN covenant, under a plea of performance, the defendant gave notice of special mat- COL. AND CAINES. ter, and the judge at the trial permitted equi- table evidence to be given upon which a verdict was taken for the defendant. *The [*487 application was to set it aside and grant a new trial. Per Curiam. The motion must be granted with costs, to abide the event of the suit. Un- der the plea in this cause, the notice was inad- missible, and the evidence, therefore, improp- erly received. The statute requires the general issue to be pleaded, where special matter is relied on in evidence, under the notice our law permits. TOWER v. WILSON, Sheriff of Washington. 1. Amendment Variance Issue Roll and Nm Prius Record. 2. Idem Verdict Venire. SHEPHARD moved in arrest of judgment on the following grounds : 1st. That there was a variance between the issue roll and nisi prius record ; the memorandum in the first being of January Term, 1803, and that of the latter in 1804. 3d. That there was no special suggestion that the sheriff of the county was interested, and no special award to the coroner, who appeared to have returned the venire. Mr. Foote, contra, was stopped by the court. Pei' Curiam. The issue roll is allowed to be correct, and the circuit record is always amendable by it, on payment of the costs of the motion made. The second error is within the spirit of the statute ofjeofales, which, after verdict, cures the award of a venire to an im- proper officer, on an insufficient suggestion; a fortiori if the award be to the right person. Take nothing by your motion. *JACKSON, ex dem. COI,DEN, [*488 v. BROWNELL. Stay of Proceedings Expiration of Certificate Notice Judgment. TTTOOD WORTH moved to discharge a VY judge's certificate to stay proceedings, because the plaintiff had not brought on the cause to argument this term, according to no- tice, though there had been ample opportunity. He contended that the certificate expired with the term, if the party obtaining it neglected to bring on the argument. Per Curiam. When the cause is of such a nature, that either side may notice for argu- ment, both are equally in default if it be not brought on. The only mode in such a case to get rfd of a judge's order, is to give a counter notice, and when the cause is called on the calendar, to come forward and demand judg- ment. Here each party has noticed, and neither one has moved ; the application must, therefore, be denied. Had the cause been such that both parties could not have noticed, then the present motion would have been right. 203 488 SUPREME COURT, STATE OF NEW YORK. 1805 ANONYMOUS. Stay of Proceedings Expiration of Certificate Report of Referees. A SIMILAR application was made to vacate a judge's certificate to stay proceedings, upon a report of referees. Per Curiam. Take your motion. This case comes exactly within the exception in the last. 489*] WILLIAM FINDER JOHN I. MORRIS. Attorney's Lien Settlement between Parties Notice. Citation Doug ., 238 ; 4 Burn. & E., 123 ; 6 Id., 361- WILLIAMS moved to set aside the judg- ment and execution in this suit, or to enter up satisfaction on the judgment obtained therein on a sealed note, upon production of a written discharge from the plaintiff, contain- ing a complete release of all demands, costs, &c., and a receipt for the balance due, which the defendant swore he paid in full considera- tion of the note, and without knowing that any third person had an interest therein. Mr. Tiffany objected to the application, be- cause the attorney had a lien on the debt for his costs, and might by this species of settlement be cut out. He contended also that the rule would be inefficacious, as the judgment en- tered was against Morrison, and the order of court would be in a suit where the defendant was named Morris. Per Curiam. From the case of Welsh v. Hole (Doug., 238), sanctioned by Mikhett v. Oldfield (4 D. & E., 123), and Read v. Dupper (6 D. & E., 361), if the defendant pay to the plaintiff debt and costs, after notice from the attorney of the plaintiff not to do so, he pays the costs in his own wrong, and Lord Mansfield said the court could not go further. If the adverse party applied to the court to cancel the judg- ment by a set-off, then the court would take care that the attorney's bill should be paid. In the case of Spencer v. White, April Term, 1799, the court qualified the right of the plaintiff's 49O*] attorney, even in the *case of a set-off. NOTE. Settlement between parties. The rule in New York now is: The attorney has a lien which attaches at the commence- ment of an action or the service of an answer containing- a counterclaim to the recov- ery in any form, or in any hands; and it will not be affected by any settlement between the parties before or after judgment. Code Civ. Pro., sec. 66, amended by Laws of 1879, ch. 542. Prior to this enactment there was no lien without notice; 8 Johns., S6 ; 3 Cai., 165 ; 2 Aik., 162 ; and see 15 Johns., 405; 1 Cow.. 172. When there is no notice, see 18 N. Y., 498 ; 52 Id., 73 ; 12 Abb. Pr. N. S., 444 ; 11 Hun, 190 ; 22 Id., 600. Discontinuance to prevent attorney from collecting 1 his costs will be vacated; Warner v. Can- ovan, 5 Alb. L. J., 381 ; see Bryon v. Durrie, 6 Abb. N. C., 135. Notice may be served at any time before entry of discontinuance; 5 Alb. L. J., 381. Notice must be given to the party himself; Wright v. Wright, 7 Daly, 62. The case must be tried before a judgment for costs can be entered, after the settle- ment has been set aside; Pickard v. Yencer, 21 Hun., 403: Wilber v. Baker, 24 Hun., 24, 26. 204 The present motion must, therefore, be granted, as there is no pretence of notice to the defendant, or of any collusion between him and the plaintiff, to deprive the attorney of his costs. As to the variance between the names, this is a rule granted in the cause of Pinder v. Morris, and it will never be an authority for entering satisfaction on a judgment in one against Mor- rison. PECK v. McALPINE. Certiorari Jurisdiction of Justice Adjourn- ment for more than six days At Objector's Request Estoppel. ON certiorari, the plaintiff relied on the jus- tice's having adjourned for more than six days. Per Curiam. It appears to have been so done on his own request; he is, therefore, es- topped from alleging it for error. HUGH MOORE v. ROSWELL AMES. Contempt Justice's Fine Judicial Act. ON certiorari. The suit before the justice, was to recover back a fine of f , im- posed by the now plaintiff upon the present defendant, for a contempt upon refusing to be sworn, or answer as a witness in a cause tried before him. Per Curiam. A justice is not liable to a suit for a judicial act, and the merits of the imposition of the fine cannot be overhauled before another justice. The magistrate in the first suit had exclusive jurisdiction to deter- mine when the witness was in contempt. *DANIEL B. BRADT JOHN GEORGE CRAY. [*491 Writ of Error Bill of Exceptions only Lis Pendens. A BILL for exceptions had been sealed by the judges of the Common Pleas, and the parties attempted to bring on the argument, though no writ of error had been sued out. Per Curiam. Take back your cases. There is no lis pendens. I NATHAN LEONARD v. ELI FREEMAN. Costs In Chancery. IT appeared on the return to the certiorari, that the action in the court below, and in COL. AND CAINES. 1805 COLDEN V. DOPKIN. 491 which a recovery had taken place, was insti- tuted for expenses incurred in going to Albany to swear to an answer to a bill tiled by the now plaintiff against the present defendant. Per Curiam. The judgment must be re- versed. The Court of Chancery has the ex- clusive right to determine questions of costs in the suit before it; and though the ground of the action might have been a vexatious bill, the justice could not have any cognizance. COLDEN v. DOPKIN. Certiorari Jurisdiction of Justice Adjourn- ment for more than six days. T7" ENT, C. J. This is a case upon certiorari, J\. brought to reverse a justice's judgment, and submitted without argument. Several errors are alleged in the proceedings below, but it will be sufficient to notice only that the 492*] justice adjourned the cause for *more than six days without consent. The return states that the defendant below was sued by summons, which was returnable on the 26th of July; that the parties appeared on that day and pleaded; that the plaintiff below prayed a day to prove his account, and the justice thereon adjourned the court to the 3d of August, on which day the plaintiff appeared in court, and the defendant was present, but said nothing, whereupon the justice, after hearing the proofs and allegations of the plaintiff, gave judgment for him. Upon this case the justice had no authority to adjourn for more than six days after the day of appearance of the parties on the sum- mons. The 3d section of the 10 Act is positive that the justice shall, upon the re- turn of the summons, or at some other time, not exceeding six days thereafter, proceed to hear the cause, and in the present instance, the 3d of August was the 7th day thereafter. There are other provisions in the act respect- ing adjournments, but none of them have any application to the present case, and there is nothing in the return from which we can pre- sume any consent or acquiescence on the part of the defendant. The return contains pretty strong evidence to the contrary. On the day of the return of the summons, the defendant pleaded a special plea, and the plaintiff re- fused to reply, but called upon the defendant to plead the general issue; which he refused to do, and then the adjournment took place at the prayer of the plaintiff; and on the day of adjournment, the defendant took no part in the proceedings, but remained a silent specta- tor. On this ground, therefore, of an adjourn- ment beyond the time authorized by the act, 493*] the judgment below *must be reversed; for where the act is positive in its directions, it must be strictly observed. The same point arose and was determined in the case Palmer v. Green, in April Term, 1799, and that de- cision being in point, governs the present. COL. AJJD CAINES. BROOME . BEARDSLEY. Pleading Plea puis darrein continuance Veri- fication. Citaiion Buller's N. P., 310. COVENANT on a sealed note, with a plea of non infreget conventianem. At the trial, after the jury were called, and placed in the jury-box, the defendant tendered a plea duly verified by affidavit that he had puis darrein continuance, under the act for giving relief in cases of insolvency, obtained his discharge, an exemplified copy of which he produced. This being rejected as coming too late, he then offered in evidence the dis- charge itself, as a bar to the plaintiff's right of recovery. Against the reception of the testimony, it was insisted that it was not ad- missible under the issue joined, nor without having been specially pleaded, or notice given. The points being reserved, a verdict was taken subject to the opinion of the court, whether it should stand or a new trial be granted. Mr. Woodworth for the plaintiff. Mr. Root contra. Per Curiam, delivered by SPENCER, J. The case of Paris v. Salkeld is decisive that a plea puis darrein continuance is matter of right; and, if verified *by affidavit, the [*494 judge at nisipi'ius has no discretion to accept it or not, but is bound to admit it. There is no dictum to be met with that the plea was too late. In the case of Pearson v. Parkins (cited in Buller's Nisi Prius, 310), it was holden that it might be pleaded after the jury are gone from the bar, but not after they have given their verdict. The facts to war- rant this plea must have happened since the last, and before the next continuance. The last continuance is the return day of the venire facias, where the proceedings are "in the ancient method; the next continuance is the first day in bank thereafter, or the first day of the suc- ceeding term. Continuances are from term to term. We are all of opinion that the plea was well pleaded and ought to have been received. The verdict must, therefore, be set aside without costs, and the plea tendered be filed nunc pro tune, and be deemed parcel of the nisi prius record. DAVID TOWER v. NATHAN WILSON. Parol Evidence of Notice Copy not Kept. THE only point was whether a party who has served a notice, without keeping a copy of it, might give parol evidence of its contents. Per Curiam. There was a notice served on the defendant to produce a fi. fa. on the trial, or that the plaintiff would prove it by parol. It appears that no copy of this notice was kept. We think it might be proved by an affidavit of its contents. In this instance there is no other way to establish it, and the defend- ant has it in his power, by producing the 205 495 SUPREME COURT, STATE OF NEW YORK. 1805 495*] *original, to correct mistakes. In Tidd's forms, notices are proved by affidavits of the substance of their contents. HAFF v. SPICER AND POTTER. Affidavit not subscribed Affiant's name at com- mencement. O TARR took an exception to the affidavit on IO which the defendant moved, because it was not subscribed by him. Per Curiam. It begins with his name, and that is sufficient. | one letter. The pronunciation would still be the same in French, as the name seems to im- port. It may also be well inferred from the return, that it appeared to the justice that the defendant was as well known by one name as the other, if they be different; and such a replication to such a plea is good. The second objection has no weight. The declaration is good enough. It was "for damages, on ac- count of the defendant's not fulfilling a con- tract for a certain lot of lease land, lying in German Flats." We are of opinion that the judgment be af- firmed. SCHERMERHORN 0. SCHERMERHORN. Set-off Judgment in Common Pleas against Supreme Court Judgment. IN this cause a judgment in the Common Pleas was allowed to be set off against one recovered in this court. HOUGHTALLING v. BRONK. Writ of RightrNew Elector. VAN VECHTEN, on an affidavit in a writ of right, setting forth that one of the electors returned on the grand assize had left the State, moved to amend the panel by add- ing another. Per Curiam. your rule. As there is no opposition, take THOMPSON, J. I do not see how it is possi- ble for the court to grant the motion. If they do, the elector will be appointed contrary to the act, and all proceedings under such a panel consequently void. My opinion is, that 4{)G*1 you should have a new elector *ap- pointed in the same way as the others. I think we have a power to order the sheriff to summon another panel; but I do not think we can direct another elector to be added. JOHN D. PETRIE v. JEWIT WOODWORTH. Pleading Misnomer Pronunciation of Foreign Name. IN error on certiorari, the exceptions were, 1st. That the defendant below pleaded an abatement, a misnomer, in being sued in Pet- ris, instead of Petrie. 2d. That the declaration was uncertain and insufficient. Per Curiam. It was not a misnomer. It was the same surname, with the misspelling of 206 GABRIEL MANNY . JAMES DOBIE. Judgment By Justice Refusal to plead Venire. ON certiorari. The defendant below refused to plead, on which the justice awarded a venire, which was now assigned for error. *Per Curiam. The judgment must [*497 be reversed. The award of venire was erro- neous. It cannot be done on a judgment by default, or where the defendant does not plead. An issue mu#t be joined. THE PEOPLE v. SMITH. Attorney at Law Misconduct Manner of Trial. Citation Say., 169. "DENDLETON, having on a former day ob- \- tained a rule to show cause why an attach- ment should not issue against the defendant, for appropriating money collected for his cli- ent, who was in prison, now moved to have it made absolute, and in support of the applica- tion cited Say., 51, 169; 4 Burr., 2060; Stra., 621; and 1 Burr., 654. Mr. F00. Attachment Supersedeas Debt Absent Debtors. rPHE plaintiffs had, under the act authoriz- -L ing proceedings against absent debtors, procured, on the usual oath, an attachment against the property of the defendants, who resided in Massachusetts. They, by affidavit, COL. AND CAINES. set forth that they never had any dealings with the plaintiffs, who, as shippers of prop- erty on board the ship Ocean, belonging to the defendants, claimed compensation for damage the goods had sustained in conse- quence of the vessel's having been run ashore when going up the harbor of Liverpool, by alleged negligence or misbehavior of the cap- tain, whereas the injury, if any, arose from the conduct of the pilot. Messrs. ColdenandBiggs,on these facts, moved to supersede the attachment, notice of which had been duly published. They contended that the debts contemplated by the act were such as might be set off, the words of the statute being that the demand must be $100 above, or clear of discounts. Torts and unliquidated damages, therefore, not within the purview of the law, because of them no set-off can be made. (Bankrupt Act, sec. 34; Coop., Bank. Law, 160, 224, 244; Sell. Prac., 42; Brown v. Gumming, 2 N. Y. T. R., 33.) But allowing such a claim might be set off, the pilot, they said, was answerable. (Malyne, 59; 7 D. &E., 160.) They referred also to the decision of this court, in the matter of Fitzgerald, an ab- sent debtor. (2 N. Y. T. R., 318.) * Messrs. Hoffman and Harison, contra, [*5OO argued that the court had no jurisdiction in the summary way, as the act had chalked out the only mode of proceeding by which a super- sedeas could be obtained. That as to the mat- ter of the claim being without the statute, the 21st section had ordered a bond to be given, to appear and plead to any action, and the terms of the condition were broad enough to include all cases, excepting pure torts alone, even to appear and answer to a bill in equity. To support the attachment, the oath of the plaint- iffs is all that is required, and cannot be done away by a counter deposition from the de- fendants. It would be to try the cause by affidavit, and determine, preliminarily, the fact of debt or no debt. Whether the pilot or master were to blame, was not to be now in- vestigated. Per Curium, delivered by SPENCER, J.: We do not think that because the statute points out a particular mode, by which a supersedeat* may be obtained, we are ousted of jurisdiction in this state of the case. We conceive that, from the general superintending power of this court, we have a right to examine whether the attachment has not improvidently issued, and on this ground, review the order of the judge by whom it was directed. On the present occasion, the plaintiffs have not contradicted the affidavit of the defendants, but, resting their opposition on the matter it details, have reposed themselves on its contents. Exercis- ing, then, that right of control which we think we possess, we cannot but see that the plaint- iffs have failed in showing such a debt as is within the purview of the act. The statute applies only to those which are capable of be- ing set off, not to demands *which [*5O1 arise from torts, or ex delicto. As, therefore, the claim of the plaintiffs is stated to be of this nature, proceeding from the misfeasance of the captain, and this is not denied by the opposite party, the motion must be granted; 207 501 SUPREME COUKT, STATE OP NEW YORK. 1805 but with permission, however, to the plaint- iffs, to show any day within term, that they have a debt such as is within the purview of the act. KENT, C. J. I am against the motion, be- cause I think the only remedy is under the 21st section of the act, which, in my opinion, is fully sufficient. If the bond there directed be given, the question whether debtor or not, within the statute, can be decided; for the in- strument can apply only to debts within the law. The proceedings below are regular, and on that score we have, therefore, no right to interfere. THOMPSON, J. I concur in the opinion of the Chief Justice. JOHN M'VICKAR v. OLIVER WOOLCOT. 1. Commission Death of Witness Amendment to Insert name of new Witness. 2. New Com- mission Death of Witness. TTOPKINS, in consequence of the death of XI a witness to be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission. Per Curiam. Were we to permit the amend- ment, the opposite party might lose the benefit of cross-examining; for the interrogatories ex- hibited to one, might not be proper to admiii- 5O2*] ister to another.from *whom it might be wished to extract new evidence. The first part of the motion must, therefore, be denied; but you may take a new commission at your peril, without, however, any stay of proceedings on the part of the plaintiff. COOK ET AL. e. CAMPBELL AND LORAINE. Bail Ca. Sa. Irregularity Eight days be- tween test and return of Ca. Sa. IN debt on recognizance of bail, the defend- ants pleaded, 1st. Nul tiel record. 2d. That the ca. sa. against the principal was not duly issued. The plaintiffs replied, taking issue oh both pleas. Uuder these circumstance'*, the plaintiffs gave notice of bringing on the trial by rec- ord, and the defendants of setting aside the whole proceedings, for irregularity in the ca. sa. Both motions came on together, and the record being admitted, judgment was demand- ed, against which the defendants relied on the irregularity, to prevent its being allowed. Mr.Boyd, for the defendants, insisted that to 208 warrant any proceedings against bail, there must be eight days between the tenteand return of the capias ad satisfaciendum. (1 Sell, prac., 550; 2 Salk., 601; Ball v. Manucaptors of Bus- sett, 2 Ld. Ray., 1176, S. C.) This objection appearing on the face of the record, was, he urged, a sufficient reason for refusing the ap- plication for judgment; and though the mat- ter ought not to have been availed of by plea, still that informality would not prejudice. In favor of bail the *court go great [*5O3 lengths, and 1 Black., 74, would be found a stronger case than the present. Mr. VanWyck, contra. There cannot be any cause assigned for the practice mentioned. The writ has lain four days in the sheriff's office, and is all which is requisite. Per Curiam. The plaintiffs must have their judgment, and the motion on behalf of the defendants be denied. There is no such prac- tice of this court, as that of requiring eight days between the teste and return of the ca.sa., nor is there any reason why it should be nec- essary. VAN WINKLE v. KETCHAM. Promissory Note Infant KnmcUdge. THE court decided in this case that the prom- issory note of an infant, carrying on trade as an adult, could not be enforced against him by the payee, who had taken it in the course of business, without knowing the defendant's non-age. LENOX, MAITLAND AND RENWICK v. HOWLAND, RUSSEL ET AL. Attachment Absent Debtor Contract Un- liquidated Demand. THE court having on a former day allowed the plaintiffs to show that they had such a demand against the defendants as would warrant the attachment, Mr. Hoffman now read an affidavit, by which it appeared that their claim was founded on the contract *contained in a bill of lading, [*5O4 for the delivery of goods shipped on board the defendant's vessel. Per Curiam, delivered by LIVINGSTON, J.: We are to determine not whether the affidavit now read would have been the proper basis of an attachment, but whether the demand, as now disclosed, is sufficient to support it. Although by the terms of the oath the cred- itor is to swear that the party is indebted to him in the sum of one hundred dollars or up- wards, it does not follow that the demand is to be so certain as to fall within the technical definition of a debt, or as to be susceptible of liquidation, without the intervention of a jury. The law is remedial and should be so con- strued as to embrace as many cases as possible. Being indebted is synonymous with owing; it is sufficient, therefore, if the demand arise on contract. The other provisions of the act COL. AND CAINES. 1805 LENOX, MAITLAND AND KENWICK v. ROWLAND, RUSSELL ET AL. 504 plainly indicate that its relief was to extend thus far at least, and, if the whole act be con- strued together, leave but little or no doubt on the subject. The 16th section declares that in case a controversy arise concerning any claim, debt or demand, respecting the estate of the debtor, the trustees may have settled it by reference, and by the 21st section the attach- ment may be superseded, if the debtor will give security to appear and plead to any action to be brought against him in any court of law or equity, and to pay such sum as shall ~be recovered against him. It is very evident from these sections that it was not intended to confine the remedies, 'either in favor of or against such estate, to cases of ascertained and liquidated debts. Else why speak of any claim in the first and why compel by the 5O5*] other, the party, in order to get *rid of this process, to appear to any suit in law or equity? These terms are broad enough to in- clude' at least all demands originating in con- tract. Nor can it make any difference whether the goods in the present case were not delivered at all, or delivered in a damaged condition. In either case the demand arises on the bill of lading; nor ought the form of declaring to vary the case. In the first case the party might certainly declare, generally, that the goods did not come to hand, without stating that this was owing to the negligence or carelessness of the master, and if this gen- eral form of declaring caunot be pursued in the latter case, it can and ought to make no difference. In both cases the owners are lia- ble on the contract of the master, as much as if they had signed it themselves. Nor can the difficulty of ascertaining the precise dam- age make any difference. This must always COL. AND CAINES. N. Y. REP.. BOOK 1. be more or less liable to some uncertainty. To obtain a liquidation a reference may be resort- ed to, and if the trustees will not submit to one they may be sued, and a jury will settle the quantum of the demand. If a carpenter contracts to build a house for a given sum and does it so negligently that it falls the very day it is finished, and then absconds possessing a large property, it would be strange that I should have no remedy, because it be neces- sary to declare against him for a misfeasance or nonfeasance, or because it may require some little calculation to settle the damages. The substantial inquiry, in this stage of the pro- ceeding, must be to ascertain whether the party has a legal claim arising on contract, not by what kind of action it is to be enforced, which has *ever appeared to me a very [*5O6 fallacious mode of testing questions of this kind. From the whole tenor of the act it is very evident, whatever may be phraseology of its first clause, that its design was to place the property of a debtor in trustees for the pay- ment, not solely of debts within the legal ac- ceptation of that term, but of every demand contracted against his estate, as well those due to the attaching party, as to others, and in like manner to give the trustees a remedy as broad against third persons. If we once begin to refine or make nice distinctions on this subject, no one can say where we shall land. The act will soon be repealed or become a dead letter. As this demand, then, is found- ed on contract, it can be of no importance in what way the injury arose, nor can we say it is of a kind not to support the attach- ment. The superseded* is, therefore, denied. 14 REPORTS OP CASES ADJUDGED IN THE Supreme Court of Judicature OF THE STATE OF NEW YORK, i From January Term 1799, to January Term 1803, Both Inclusive, TOGETHER WITH CASES DETERMINED IS THE DURING THAT PERIOD. BY WILLIAM JOHNSON, Counselor at Law. Legum interpretes, judices : legum denique idcirco omnes servi sumus, ut liberi esse possumus. CICERO. VOLUME I. CONTAINING THE OASES FEOM JANUARY TERM 1799, TO JULY TERM 1800 INCLUSIVE. PREFACE. THE following cases comprehend the de cisions of the Supreme Court and the Court for the Correction of Errors, from January Term 1799, to January Term 1803, soon after which the first regular reports were published. The profession, to whose candor they are submitted, are thus put in possession of an unbroken series of the adjudications of our higher courts, from the year 1799, inclusive, to the present time. Should it be asked why these reports did not commence at an earlier period, it is an- swered, because, except in a few cases to be found in the notes or at the end of the last volume, sufficient materials could not be ob- tained for an authentic and satisfactory ac- count of the decisions prior to that time; and imperfect or inaccurate reports of judicial de- terminations are justly to be reprobated as the bane of legal science. In the following reports, the facts in each cause are stated from the cases and paper- books delivered to the judges on the argu- ment, and from the affidavits and records filed with the clerks of the court. The opin- ions of the judges are taken from their own manuscripts, and, in almost every case, are given exactly as they were pronounced. They may, therefore, be relied on as faithfully and | truly stated, and as possessing all the author- 1 ity that can be derived from the sanction of | those by whom they were delivered. For ob- 1 vious reasons, the arguments of counsel, ex- cept in a very few instances, are not inserted. No decision of any importance, either on ac- j count of the principles it involved, or which ! might tend to elucidate the practice 1 of the \ court, has been intentionally omitted. Those who, by long study and experience, have be- come familiar with the principles of law, and the decisions of English courts, may be in- clined to think that too many, rather than too few cases are inserted. But, notwithstanding the declaration in the Constitution, no lawyer can pronounce, with absolute certainty, that the principles he has learned from English jurists, or the opinions of English judges, how- ever accomplished and venerable, are the law of this State, until they have been recognized and sanctioned by our own courts. It is proper to mention, although generally known, that a gentleman ' who sat on the bench of the Supreme Court during the period of these reports, and had intimated his inten- tion of publishing its decisions; but the in- creasing duties of a laborious profession which he had resumed, not affording sufficient leisure for the completion of the work, so soon as the impatience of the bar demanded, he relin- quished the undertaking, and offered his as- sistance to the present reporter, who had been previously solicited to engage in its execution, and who takes this occasion to acknowledge his obligations to that gentleman, not only for the free use of his manuscripts, but for the trouble he has taken in perusing many of the proof sheets. To the rest of the judges, also, he has to express his thanks for the obliging and liberal communication of their notes and writ- ten opinions, and for every information which was desired in the prosecution of the work. 1. Jacob Radcliff, Esquire, who was appointed one of the judges of the Supreme Court in January, 1799, and resigned his seat in January, 180i. NAMES OP THE CHANCELLORS OF THE STATE OF NEW YORK, FKOM 1777 TO 1808. ROBERT R. LIVINGSTON, Esq., appointed October 17, 1777. In consequence of his having accepted and exercised the office of Secretary of Foreign Affairs, under the United States, which he had lately resigned, doubts were entertained whether the office of Chancellor, held by him, had not thereby become vacant, and he was re-appointed Chancellor, June 22, 1783. JOHN LANSING, Jun., Esq., 1 appointed October 28, 1801. 1. In the place of Chancellor Livingston, who resigned on being appointed Minister of the United States to France. JUDGES OF THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, FROM 1777 TO 1808. JOHN JAY, Esq., Chief Justice, appointed October 17, 1777. jSSSliMi:']*,.. I ****-. October 17, 1777. RICARD MORRIS, Esq., 1 Chief Justice, October 23, 1779. ROBERT YATES, Esq., 2 Chief Justice, 'I a + o i7on JOHN LANSING, Jim., Purinc Judge f &epL ^' ll AARON BURR, Esq., 3 Puisne Judge, October 2, 1792. MORGON LEWIS, Esq., Puisne Judge, December 21, 1792. EGBERT BENSON, Esq., 4 Puisne Judge, January 29, 1794. JAMES KENT, Esq., Puisne Judge, February 6, 1798. JOHN LANSING, Jun., Esq., 6 Chief Justice, February 15, 1798. JOHN COZINE, Esq., 6 Puisne Judge, August 9, 1798. JACOB RADCLIFP, Esq., 1 Puisne Judge, December 27, 1798. MORGAN LEWIS, Esq., 8 Chief Justice, October 28, 1801. BROCKHOLST LIVINGSTON, Esq. In,- T j ^ SMITH THOMPSON, Esq., * \ ****** JMg*. ^n. 8, 1802. AMBROSE SPENCER, Esq., 9 Puisne Judge, February 3,1804. JAMES KENT, Esq., 10 Chief Justice, \ T l o 1(U DANIEL. D. ToMPKiNS,Esq., Puisne Judge, \ uiy "' K WILLIAM W. VAN NESS, Esq., 11 Puisne Judge, June 9, 1807. JOSEPH C. YATES, Esq., is Puisne Judge, Februarys, 1808. ATTORNEYS-GENERAL. EGBERT BENSON, Esq., Attorney-General, appointed January 15, 1778. RICHARD VARICK, Esq., AARON BURR, Esq., MORGAN LEWIS, Esq., NATHANIEL LAWRENCE, Esq., JOSIAH OGDEN HOFFMAN, Esq., AMBROSE SPENCER, Esq., JOHN WOODWORTH, Esq., MATTHIAS B. HILDRETH, Esq., May 14, 1789. September 29, 1789. November 8, 1791. December 24, 1792. November 30, 1795. February. 3, 1802. February 3, 1804. March 18, 1808. 1. In the place of Mr. Chief Justice Jay, who resigned. 2. In the place of Mr. Chief Justice Morris, who arrived at the age of sixty years. 3. M. Burr, did not accept the appointment. 4. Being the fifth judge; the court before consisted of four judges only. He resigned his seat on the bench, on being appointed a judge of the Circuit Court of the United States, in March, 1801. 5. In the place of Mr. Chief Justice Yatcs, who having arrived at the age of sixty years, his seat became vacated by the limitation expressed in the Constitution of the State. (Art. XXIV.) 6. He died on the 16th of September, 1798, before he had taken his seat on the bench. 7. He resigned his seat in January, 1804. 8. In the place of Mr. Chief Justice Lansing, appointed Chancellor. 9. In the place of Mr. Justice Radclitf, who resigned. 10. In the place of Mr. Chief Justice Lewis, elected Governor of the State. 11. In the place of Mr. Justice Livingston, appointed a judge of the Supreme Court of the United States. 12. In the place of Mr. Justice Tompkins, elected Governor of the State. JOHNSON'S CASES, 1. 217 CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OP THE STATE OF NEW YORK, IN JANUARY TKRM, IN" THK YEAR 1799. 1*] *SETON, MAITLAND & CO. v. LOW. 1. Ma/rine Insurance Lawful Goods Contra- band Goods Duty to disclose. 2. Internation- al Law Trade of Neutral Nation Rig fit of BeUigerant to Confiscate. 3. Insurance Dis- closure of Increase of Risk. In an action on a policy of insurance, from New York to the Havana, on all lawful goods, laden, &c., it was held that articles contraband of war were lawful goods within the meaning of the policy; that goods not prohibited by the positive law of the country to which the vessel belongs, are lawful; and that the insured are not bound to disclose to the insurer that the goods insured are contraband of war. Citations 3 Burr., 1905 ; Marshall, 48-55. Magens, p. 9, sec. 13, 14. was an action on an open policy of in- J- surance, dated the 3d of May, 1797, upon all kinds of lawful goods and merchandises, on board the brig Hannah, from New York to the Havanna. The sum of $16,000 was sub- scribed by the defendant as president of 1 the United Insurance Company, at a premium of eight per cent. The insurance was averred to have been made for the benefit of Manuel Galbore De Silva, and the loss stated to have been by capture by His Britannic Majesty's sloop of war the Swallow. The action was tried before Mr. Justice Hobart at the circuit held in the City of New York, when a verdict was found for the plaint- s' iffs for the sum of $15,405, *subject to the opinion of the court, on the following The plaintiffs, on the 2d day of May, 1797, wrote to the company, whereof the defendant was president, the following note: " The company will please to effect insurance on the brig Hannah, W. R. M'Colley, master, from New York to the Havanna, viz., $4,000 on the vessel out and home, valued at the sum of , and $16,000 on the cargo, not war- ranted, but shipped by and in the name of their obedient humble servants, Seton, Mait- land & Co." On receiving this order the policy was effected for the sum and at the premium there- in mentioned. No disclosure was made to the company, at the time of obtaining the insur- ance, of the nature of the cargo nor who was the owner, nor were any questions asked by the insurers on those points. The plaintiffs and defendant resided in New York. One of the plaintiffs, William M. Seton, was a mem- ber of the company. On the 17th of March, 1797. the Governor of the Havanna, by proc- lamation, permitted the following articles to be imported into that place, in American ves- sels, of which description was the Hannah, namely, all kinds of eatables (except codfish and flour), Britannias, Creas, ticklenberghs, platillas, Russia duck, checks, twine, nails and cordage. The plaintiffs, pursuant to the above mentioned proclamation, obtained a written permission from the consul of His Catholic Majesty for the State of New York, signed the 5th of May, 1797, for the captain of the said brig to proceed from New York to the Havanna, with her cargo, and the permit enumerated every article of which the cargo NOTE. Marine insurance, articles contraband of war, concealment. In regard to the doctrine of the above case that insurance on all lawful goods covers articles contra- band of war, see Skidmore v. Desdoity. 2 Johns. Cas., 77; Juhel v. Rhinelander, 2 Johns. Oas., 120; S. C., affirmed, 2 Johns. Cas., 487 ; Pond v. Smith, 4Ct., 297 ; Richardson v. Ins. Co., 6 Mass,, 102 ; The San- tissima Trinidad, 7 Wheat., 283 ; Barker v. Blakes, 9 East, 283 ; Hobbs v. Henning, 17 C. B. N. S., 791 ; 71 Jur. N. S., 223 ; 13 W. R., 431 ; 12 L. T. N. S., 205. See- also Depeyster v. Gardiner, 1 Caine, 492; 3 Kent Com., 267 ; 1 Parsons on Mar. Ins., 364, 490, 523. As to vitiation of policy by concealment, see I Shirley v. Wilkinson, 1 Dougl. R., 308 n ; Gladstone i v. King, 1 M. & S., a5 ; Foley v. Tabor, 2 F. & F., 663 ; I Richards v. Murdock, 10 B. & C., 527 ; Elton v. Lar- , JOHNSON'S CASES, 1. kins, 8 Bing., 198 ; 5 C. & P., 86, 385 ; Pimm v. Lewis 2 F. & F., 778 ; Bates v. Hewitt, 2 L. R. Q. B., 595, 3(5 L. J. Q. B., 282: Lynch v. Hamilton, 3 Taunt., 37; McLanahan v. Universal Ins. Co., 1 Pet., 170 ; Gen- eral Interest Ins. Co. v. Ruggles, 12 Wheat., 408; Livingston v. Maryland Ins. Co., 6 Cranch, 274, 7 Cranch, 506; Buck v. Chesapeake Ins. Co., 1 Pet.. 151 ; Hazzard v. N. E. Marine Ins. Co., 8 Pet., 557 : Murray v. United Ins. Co., 2 Johns. Cas., 168; Kem- ble v. Bowne, 1 Caine, 75; Ely v. Hallett, 2 Caine, 57: Le Roy v. United Ins. Co., 7 Johns., 343 ; Walden v. N. Y. Firemen Ins. Co., 12 Johns., 128, 513; Stocker v. Merriinack Ins. Co., Mass., 220 ; Silloway v. Nep- tune Ins. Co., 13 Gray, 73 ; Sawj-er v. Coasters' Ins. Co., 6 Gray, 221; Bryant v. Ocean Ins. Co., 22 Pick., 200; Burritt v. Saratoga Ins. Co., 5 Hill, 188. 219 SUPREME COURT, STATE OF NEW YORK. 1799 consisted. The cargo of the Hannah be- longed to the said Manuel Galbore de Silva, a Spanish subject, and consisted of the follow- ing articles, viz.: Britannias, Silesia, Creas, ravens duck, ticklenberghs, platillas, Russia duck, Russia sheeting, cordage, ratlines, checks and twine. The Hannah was captured and carried into New Providence, where the JJ*]cargo was libeled and a decree *pronounced by the Court of Vice- Admiralty, " condemn- ing, as lawful prize, the ravens duck, ticklen- berghs, Russia duck, cordage, ratlines and twine, as being shipped by the plaintiffs, citi- zens of the United States, contrary to their neutrality, and the treaty of amity, commerce and navigation, between Great Britain and the United States, and as being articles contra- band of war, and such as may serve for the equipment of vessels, and as by the said treaty are declared to be just objects of con- fiscation, whenever attempted to be carried to an enemy." And with respect to the remain- ing cargo on board, the judge of the said court decreed as follows: " From the peculi- arity of the marks, the initial letters of the consignee and of Manuel Galbore de Silva, a Spanish passenger on board the said vessel, who was lost overboard, and more especially from the direct contradiction in the examina- tions, on oath, of William Reynolds, M'Colley, the master, and John Millhoiland, the mate of the said brigantine, the former declaring that, to the best of his knowledge, they belong to Messrs. Seton and Maitland, merchants in New York, and citizens of the United States of America; that he believes the said cargo did, at the time of shipping, and will, if landed in the Havanna, become their property, and that the said passenger had no concern or property whatever in the said vessel and cargo, and the latter as positively declaring that he imagines the whole cargo belonged to the said Spanish passenger, a partner of the said consignee, as he had been informed by the said master, and which opinion is supported by Messrs. Mait- land, Howell & Co., ship chandlers, coming on board the said vessel to get pay for some outlandish cordage, sold to the said passenger by them, and on which he, had received the drawback, and that he believes the said goods. if landed in the Havanna, would really be- long to and become the property of the said passenger and consignee; wherefore, I am doubtful who are the real, true and absolute owners of the said last-mentioned goods; I do therefore further decree, that one hundred 4*] days from the *date hereof (which was the 7tii of July, 1797), be allowed the said Seton, Maitland & Co., to prove their real, true and absolute property in the aforesaid goods, last enumerated, to "the satisfaction of this court; and that on the claimant giving good and sufficient security for the appraised value of the said goods, and to abide the final decree of the said court, respecting the said goods, the same be delivered up to the said claimant; and, lastly, I condemn the claimant in the costs occasioned by the interposition of his claim." The plaintiffs, on receiving intelligence of the capture and proceedings above mentioned, or shortly thereafter, to wit, on the 22d day of August last, abandoned to the company the 220 cargo, and delivered to them the usual proofs of interest and loss. It was admitted that the articles which were condemned as contraband of war, were the cause of the capture and detention. The whole property on board, in- cluding commissions and premiums of insur- ance, amounted to $15,888.88. It was also admitted that ticklenberghs do not usually serve for the equipment of vessels, although, from necessity, sails are sometimes made of them. The points, which were stated in the case by the counsel, were as follows: 1. Whether the plaintiffs were entitled to recover for a total loss. If the court should be of that opinion, judgment should be entered on the verdict as it stood. 2. Whether the plaintiffs were entitled to recover only for the goods which were not condemned as contraband of war, and under this head, whether the ticklenberghs were properly condemned as such. If the court should be of opinion that the plaintiffs were entitled to recover for the articles last men- tioned, and also for the ticklenberghs, as not being contraband, and being improperly con- demned as such, then a verdict should be en- tered for the sum of $8,497, and six cents costs, and judgment accordingly. But if the court should be of opinion that the ticklen- berghs were justly condemned as contraband of war, and that the plaintiffs *were en- [*5 titled to recover only for the articles which were not condemned as such, then the verdict was to be entered for the sum of $6,804, and six cents costs, and judgment accordingly. 3. If the court should be of opinion that the plaintiffs were not entitled to recover any part of the sum insured, that then the judg- ment should be entered for the defendant. KENT, J. Two questions were raised on the argument in this case. 1. Whether the contraband goods were lawful, within the meaning of the policy. 2. If lawful, whether the assured were bound to disclose to the defendant the fact that part of the cargo was contraband of war. On the first point, I am of opinion that the contraband goods were lawful goods, and that whatever is not prohibited to be exported, by the positive law of the country, is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law (and which, so far as it concerns the present question, is expressly incorporated into our treaty of commerce with Great Britain) contraband trade is prohibited to neutrals, and, consequently, unlawful. This reasoning is not destitute of force, but the fact is, that the law of nations does not de- clare the trade to be unlawful. It only authorizes the seizure of the contriband arti- cles by the belligerent powers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet at the same time, from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and this they may do from the principle of self-defence. The right of the hostile power to seize, this same very JOHNSON'S CASES, 1. 1799 SETON, MAITLAND & Co. v. Low. moral and correct writer continues to observe, does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of in- evitable necessity, and the neutral has no just cause to complain. A trade by a neutral, in 6*] articles contraband of *war, is therefore a lawful trade, though a trade, from necessity, subject to inconvenience and loss. With respect to the second question, the reason of the rule requiring due disclosure of all facts, within the knowledge of either party, is to prevent fraud and encourage good faith. It is a principle of universal law, and applicable to all contracts, that every material ingredient in the contract must be disclosed and made known to both parties, otherwise, they make a contract different from the one they intended. ' There are, however, certain circumstances, appertaining to every contract, which each party is presumed to know, and need not be told. In nlaking a contract of insurance, it was laid down by the English Court of K. B. in the case of Carter v. Boehm (3 Burr., 1905), that the underwriter is bound to know any cause which may occasion natural perils, as the season of the year, the peculiar danger of the voyage, from its course, the prevalent winds, and the like. He is also bound to know what may occasion political perils, as the state of war between States, and the various operations of war. If an under- writer insure a private ship of war, he need not be told of secret expeditions, &c., for he is bound to know that such are the presumed destinations of such vessels. All matters of general notoriety and speculation, every party is bound to know, at his own peril. These principles I have kept in view, and brought into application, in my reflections on the present case. An American underwriter, we will suppose, subscribes a policy on a foreign voyage, in a time of profound peace, and he regulates the premium accordingly. It then happens that a war breaks out between the United States and Spain, for instance, and he is called upon again to underwrite. The risk, undoubtedly, is greatly enhanced, because the United States are now a party in the war, but this is a fact of public notoriety, a political peril, which the underwriter is presumed to know, and it need not be disclosed to him. We will sup- pose, however, that instead of a war between the United States and Spain, a war breaks 7*] *out between Spain and some other pow- er in Europe. This is a fact, also, of a pub- lic nature, which need not be told. The underwriter is presumed to know it and its consequences, in relation to the trade of his own country, as well as to that of all others. The United States are not now a party to the war. A new and different relation, or character arises, the character of a neutral power. In the one case, the trade of the United States is greatly exposed by the dep- redations of its enemy; in the other case, its trade is in a much less, though in some degree, exposed by the interfering rights of the belligerent powers. But in the one case as well as in the other, the insurer is presumed to know, and to contemplate the risk, be- JOHNSON'S CASES, 1. cause it is a peril inevitably arising from the state of war. A war between foreign powers, as I havo already observed, forms no lawful impedi- ment to the universality of the neutral trade. The neutral may carry on his customary trade as, before, without discrimination. The law does not infer, and the insurer has no right to infer, a diminution, or abridgment of the neutral trade, in consequence of a foreign war, because the neutral is under no moral or legal obligation to abridge it. The presump- tion will be, that the neutral trades, as usual, without any regard to the accidental circum- stance of a war abroad, and without rejecting any part of his customary cargo, though a certain species of it, under the description of articles contraband of war, is exposed to seizure, by coming in collision with certain rights of necessity created by the war. Un- derwriters are to presume the trade to be in its unfettered state, and to take the risk of the interfering rights I have mentioned. As in the former case of a war, in which the United States are a party, the assured can always diminish the premium consequent on the extraordinary risk, by a warranty that the property is neutral; so, in the latter case, . of a war abroad, increasing, by necessary con- sequence, the risk in a smaller degree, the assured can always diminish the premium at- tached to such increased risk, and reduce *it to the standard of a peace premium, [*8 by a warranty that the cargo is not contra- band of war. It is a general and a just principle, that every fact, in the knowledge of the assured, which enhances the ordinary risk, and which would, if disclosed, enhance the premium, ought to be communicated to the underwriters. But the principle is limited to circumstances, which the underwriter is not presumed to know, nor bound to know; and if my reason- ing be good, the underwriter is presumed to know that the neutral trade undergoes no abridgment, or abandonment, in war; that it is likely to consist of the same kind of articles in war as in peace, and, consequently, that the nature of the cargo need not be disclosed. There is an ingredient in the present case which oxight to be noticed, as deserving of consideration. The cargo was shipped to the Havanna, in consequence of a proclamation of the governor of that place, enumerating certain articles by name (and of which articles the present cargo consisted), which might be imported in American bottoms. This proclamation was a public act, materially affecting the American trade, and it may be inferred that it was pub- licly known, ff that be the case, we can hardly presume otherwise than that the de- fendants in this suit must have known, and need not to have been told, that the cargo of the Hannah consisted of particular articles enumerated in the proclamation. My opinion, accordingly, is, that judgment be rendered for the plaintiffs as for a total loss; yet in a question so important to the interest of trade, in respect to which I have met with no pertinent decision in the English law, I regret that I cannot give this opinion without some hesitation and difficulty, and I 221 8 SUPREME COURT, STATE OF NEW YORK. 1799 could have wished that the usage and under- standing of merchants, on the subject of this kind of disclosure, had been found, and thrown into the case. LEWIS, J. The grounds of opposition to the claim of the plaintiffs are: 9*] *lst. That the assured were engaged in a commerce illicit by the treaty of amity, com- merce and navigation, between the United States and Great Britain. 2d. That the circumstance of the goods being contraband, ought to have been dis- closed to the underwriters. The recovery, if any, must, in my opinion, be for a total loss; for if the plaintiffs are barred on either of these grounds, it will go to the whole policy; and if they are insuffi- cient, the voyage having been totally defeated, and an abandonment made, the plaintiffs must recover the whole amount insured. According to Grotius and Bynkershoek, in- struments of war are alone considered as con- traband of war by the general maritime law of nations; and when going to a port blockaded or a place besieged, are liable to confiscation, upon the principal of its being illegal to sup- ply a belligerent power with articles usfulonly in war. But by the ordinances of France of 1543 and 1584, and by those of several other commercial countries of Europe, they are to be paid for when they are the property of a neutral. Great Britain, in the reign of Queen Elizabeth, also recognized this principle. Hence the idea of illegality has, in more mod- ern times, been exploded, and the doctrine of the present day appears to be, that the only effect of a capture and condemnation is, that the neutral power, by demanding compensa- tion, would avow itself a party to the war. Articles declared contraband by particular convention, fall, a fortiori, under the same rule. The ordinances of different maritime nations, from whence this law is deduced, are founded in principles of policy adapted to the particular interest of each. America has none, but surely her courts of justice have a right to adopt such as will operate most favourably to her. The treaty with Great Britain is, un- questionably, the law of the land, but it by no means follows from thence that the exporta- tion of articles contraband within its letter is illegal, in such a sense as to render an insur- ance on them void. Were we to give it 1O*] *that construction, similar treaties with the different European powers would annihi- late our commerce; for as it embraces all our principal exports, the merchant would be re- duced to the necessity of becoming his own insurer, and no capitals in the country would be adequate to the support of such a mercan- tile system. Nor do the terms "lawful goods," introduced into the policy, in my opinion, in any wise alter the case; for I can- not consider them as having relation to the acquired rights of any foreign country. If they have any particular reference, it must be to the local law of this country. Much re- liance has been placed on the authorities cited from Valin, Emerigon, and Pothier, but they do not apply to the case. They treat of the validity of an insurance on goods, the exportation and importation of 222 which are forbidden by the laws of foreign countries, a point settled both in England and France in favour of its validity; Valin and Emerigon. subscribing to such decision, while Pothier is of a different opinion. 1 do not think, therefore, that on the ground of il- legality, the underwriters are discharged. 1 The next question is, whether the assured were bound to disclose the nature of the cargo; and on this point, 1 confess.I have had greater doubts than on the other. It was assumed as a position by the defendant's counsel, that the underwriters were not bound to inquire, but that the assured were bound to disclose every circumstance that had a tendency to enhance the risk. But I find this principle nowhere adopted, except sofar*as relates to extrinsic circumstances. Were it to extend beyond these, surely among the many adjudications in the English courts something of the kind would be met with, but it is admitted that no such case is to be found. It may then be fairly inferred that the principle does not exist. Indeed, it would be highly injurious to that nation, for it would destroy all foreign insurance, which has become to her, and prob- ably will be to us, an important source of commercial profit. When nations are at war, underwriters contemplate captures by the bel- ligerent powers, and take premiums adequate *to every risk. Where they wish to[*ll avoid the hazard of any particular risk, they guard against it in the policy. Thus we find warranties introduced for their protection; nor has the argument that, had the insurers known the nature of the cargo, they would, probably, have demanded a higher premium, any weight with me. We are to suppose they contemplated every usual risk; though, prob- ably, had the nature of the cargo been dis- closed to them, and been found to consist of articles not contraband by treaty, thev might have demanded a less premium. It Is a set- tled principle that the assured are not bound to disclose what the assurer waives to be in- formed of, or ought to know. Here was a vessel bound to a port with which we had not a free trade. The voyage was undertaken in consequence of a permission granted by a proc- lamation of the Governor of Havanna, with which all mercantile men, it must be pre- sumed, were acquainted. The cargo consisted of the very articles to which the permission extended, certain species of provisions excepted; here, then, was suf- ficient to put the insurers on their guard, and if they did not choose to inquire, it is presum- able that they intended to take the risk. If the doctrine of disclosure is to be extended to the nature of the cargo of a vessel, where are we to stop? Must it not take place in every instance? The risks will be as various as the commodities that are exported. Gunpower, liquors, oils, saltpetre, money and Jewels, are subject to greater risks than provisions, yet it never has been held that a disclosure of such articles was necessary. It may also be a ques- tion, in the present instance, whether there was an increased risk. The property was re- fused to be warranted neutral; the inference, therefore, was that it was enemy's, and no cir- 1. See Marshall, 48-55. JOHNSON'S CASES, 1. 1799 SKTON, MAITLAND & Co. v. Low. 11 cumstance could increase the risk of capture. The flimsy covering of a shipment in the name of a neutral, considering the cupidity for capture that has distinguished all the bel- ligerent powers, has never, I suspect, proved a protection. 12*] *My opinion therefore is, that the law on both points is with the plaintiffs, and that they are entitled to recover for a total loss. LANSING, Ch. J. I have considered the ob- jections on the part of the defendant to rest on three grounds: 1st. That the concealment of the circum- stance that part of the cargo was contraband of war, enhanced the risk and vitiated the policy. 2d. That this was a contract against the policy of the law, and therefore void. 3d. That the treaty with Great Britain, which was the supreme law of the land, in- hibited the citizens of the United States from furnishing the enemies of that kingdom with articles contraband of war. It may be useful to examine, as to the first point, what species of articles are compre- hended under the general terms of " all kinds of lawful goods and merchandises." On the argument, no authorities were intro- duced which have any intimate connection with the subject. The reasoning on the ques- tion was from general principles respecting the nature of contraband goods; but no in- stances of the particular application of those cases, even remotely analogous to the present, were given. Whether the articles alleged to be contraband of war were of a nature to re- quire a particular specification, may be col- lected from the idea, which, by common usage,is intended to be conveyed, by the terms " lawful merchandise." In Magens (p. 9, sec. 13), it is laid down, " that every person making insurance, under the generaf expression of 'merchandise, 'ought not to conceal anything he may know to de- serve a greater premium than is generally given; and for any damage happening to goods more liable to it than others insured at a low premium, the insurer ought not to be answerable any further than in common with the rest of the cargo, not subject to dam- age." In sec. 14 he observes, "according to the laws of several places, such things, as in their nature are soon corruptible and perishable, or 13*] contraband goods, which, in *time of war, are liable to confiscation, are not to be understood under the general expression of merchandises." He then declares "that the the ancient ordinances of insurance, made at Amsterdam and Middleburgh, allow corn, fruits, and a number of other perishable articles, and ammunition, to be comprehended under that expression, but that those of the city of Rottei'dam, in 1721, of Amsterdam, in 1744, and the French, Hamburgh, and Prus- sian ordinances, require particular specifica- tions of certain articles, as not comprehended under the general expression of merchandise. Among these, we generally find ammunition, and other articles contraband of war. These specifications appear to have varied JOHNSON'S CASES, 1. with the motives which dictated them, so as to present them subject to a more extended or restricted rule, and forcibly lead to the opin : ion that, independent of such particular regu- lations, no such exceptions would exist. The authorities which have been cited in the course of the argument, to show the effect of a concealment of material circumstances, rest- ing in the knowledge of the assured, appear to me not to apply to the case. They have, I take it, no relation to the quality of the mer- chandise; the term "merchandise" comprising every species of goods of whatever quality. If this be so, the assurer, in estimating the risk he insures against, demands a premium, in every instance, for the greater risk, leaving it to the insured, by a discovery of the precise nature and quality of the merchandise, and, by correspondent stipulations, to diminish the risk and reduce the premium. The insurers in this case knew the destination of the goods, and that the vessel, on board of which they were embarked, was bound for the Havanan, a place belonging to one of the belligerent powers. They knew that the goods were shipped by, and in the name of the plaintiffs, and the note, in consequence of which the insurance was made, contained an intimation calculated to put the insurers on their guard. It mentioned that the insured would not submit to a war- ranty, and the insurers, also, probably knew that in consequence of the *proclamation [*14 of the Governor of the Havana, the articles which were actually shipped were alone permitted to be imported there. With all this knowledge, no inquiries were made, but the policy was underwritten, as it appears, merely on the application of the plaintiffs. But it has been alleged that this insurance is against the policy of the law, and, also, that it is inconsistent with our treaty with Great Britain. Without examining the extent of this principle, it will be sufficient to observe that the British treaty does not impose any new obligation on the citizens of the United States to refrain from exporting articles contraband of war. It merely defines the objects which shall be considered as such, in cases implicat- ing the interests of the contracting parties, and leaves the general law of nations to its opera- tion in regard to the interception of such arti- cles on their way to an enemy's port. By the law of nations, articles contraband of war, if the utmost extent of the doctrine be applied to this case, are liable to confiscation when intercepted by the subjects of any of the nations at war, on the way to the ports of their enemies; but there were no restraints on the exportation of these articles from the United States, and certainly none could exist at the port of destination, as the proclamation was evidently intended to invite importations, and the property insured appears to have belonged to a Spanish subject. In a nation like our own, engaged in exten- sive commercial enterprises, in which every foreigner may export, in any vessel of the United States, without restriction as to the objects of exportation, the mere circumstance of the policy being intended to attach to a vessel, sailing from a port in those States, in my opinion, could not create a presumption that the property insured was American, or 223 14 SUPREME COCTRT, STATE OF NEW YORK. 1799 authorise any inference to that effect. The policy might) for aught the insurers knew, or could infer, from the natural course of the transaction, have applied wholly to goods, the 15*] property of the subjects of the King *of Spain, as the fact appears to have been in the present case. And a circumstance, to afford some colour for a presumption of that kind was, that the vessel was actually destined for a Spanish port. Upon the whole, as far as I have been able to investigate the principles ap- plicable to this case, and from my reflexions on their tendency, I am of the opinion that this was a valid policy, as respected the goods, contraband of war; that it was not necessary to inform the insurers of the species of arti- cles intended to be insured; and that the proper mode of guarding against the risk of including articles of this description in poli- cies of insurance, is to require stipulations from the insured that none such shall be com- prised in the cargo to be insured. I am there- fore of opinion that the plaintiffs are en- titled to recover for a total loss. BENSON, J., dissented, on the ground that the insured ought to have disclosed the nature of the goods, or that they were contraband. RADCLIFF, J., not having heard the argu- ment of the cause, gave no opinion. Judgment for the plaintiffs. l Mr. B. Livingston and Mr. Hoffman for the plaintiffs. Mr. Harrison and Mr. Hamilton for the de- fendant. Followed 2 Johns. Cas., 121. Cited in 3 Johns. Cas., 484 ; 12 Wend., 466 ; 15 Wend., 18; 2 Gall., 357. 16*] *LUDLOW & LUDLOW v. DALE. Marine Insurance Warranted Property Prize. In an action on a policy of insurance on goods warranted American property, it was held that the sentence of the Admiralty Court of a belligerent, condemning 1 the goods as good and lawful prize to the captors, was conclusive evidence as to the char- acter of the property, and of a breach of the war- ranty by the assured. (But see, contra, the case of Vandenheuvel v. The United Insurance Co mpany, reversed in the Court of Errors, February, 1802, 2 Johns. Cas., 451.) Citation-Morely. 1; Str., 733; 1 Rep., 258, 280; 4 Term R., 185, 192: 2 Ersk. Inst., 735; 2 Koine's Eq., 376 ; Doug., 610, 614, 615, 617 ; 3 Term R., 330 ; 2 Raines, 376 ; Raym., 473 ; 2 Show, 242 : 2 Ld. Raym., 892, 935 ; 1 Show, 6 ; Carth., 31 ; Doug., 575. was an action on a policy of insurance, J- dated the 5th day of November, 1795, 1. In consequence of the above decision the fol- lowing clause was added to the policies of insurance used in New York: " It is also agreed that the prop- erty be warranted by the assured, free from any charge, damage or loss, which may arise in conse- quence of a seizure or detention for, or on account of any illicit or prohibited trade, or any trade in articles contraband of war." In the case of Mayno v. Walter (Park, 196; Mar- sliall, 358), Lord Mansfield and the court decided that the insured need not disclose that the ship had an English supercargo on board; though, by a French ordinance, the ship was condemned for that reason. In Long v. Duff (2 Dos. & Pull., 209), Lord Eldon left 224 effected by the plaintiffs for M. Myers, of Norfolk, in Virginia, on the cargo of the schooner Paragon, at and from Aux Cayes, or any other port in Hispaniola, to any port in the United States, warranted American prop- erty. The plaintiff declared for a total loss, by" capture, made by the British ship of war called the Argonaut. The cause was tried before Mr. Justice Lewis, at the sittings, held in the city of New York, after October Term, 1797, when the defendant's subscription to the policy was ad- mitted, and also that M. Myers was a citizen of the United States, resident in Virginia, and that the Paragon was registered agreeable to law at Norfolk on the 22d day of August, 1795, as the sole property of the said Myers. To prove the interest of Myers, the plaintiffs g^ave in evidence an invoice of the cargo, dated the 23d day of January, 1796, signed Donate Nathan, and also a bill of lading at the same date, signed by the master, which stated the cargo to be shipped by the said Nathan, on the account, and at the risk of the said Myers. From the invoice and bill of lading, it "also appeared that the cargo was equal in value to the several sums underwritten on the policy. It was further admitted that due notice of the loss had been given, and an abandonment made to the defendant, *on the 31st of [*17 December, 1796. It appeared also that the Paragon was captured while prosecuting the voyage insured, and carried into Jamaica, where she was condemned by the Court of Vice-Admiralty of that island as good and law- ful prize to the captors. On the part of the defendant, a copy of the sentence of condemnation was read; other evi- dence was also offered to show that the prop- erty was not American, but belligerent, and that therefore the warranty had not been com- plied with. This evidence it will not be ma- terial to state, since the judgment of the court was founded on a principle not connected with it. A verdict was taken for the plaintiff as for a total loss, subject to the opinion of the court on the whole case; and it was agreed that if the court should be of opinion with the de- fendant, a judgment as in case of nonsuit should be entered. Mr. Hoffman and B. Livingston for the plaint- iffs. Mr. Harison and Mr. Hamilton for the de- fendant. KENT, ./., delivered the opinion of the court. Two questions have arisen upon this case: 1. Whether the sentence of the Admiralty it to the jury to decide whether, according to the usage of merchants, it was the duty of the insurer to satisfy himself whether the vessel was foreign built, and therefore not entitled to be registered, nor bound to sail with convoy. Though this greatly increased the risk, yet the jury found that it was not incuml>ent on the insured to communicate the fact to the insurer, and the Court of Common Pleas decided that the point was properly left to the jury. (Mill-shall, 353-aTfi.) But Pothier (Trait, rtit Control d'A*mir. 196) is of the opinion that the insured can- not, in conscience, be silent as to a fact which he knows, and which, if known to the insurer, would have considerably increased the premium. JOHNSON'S CASES, 1. 1799 JONES AND CRAWFORD v. REED. 17 Court precludes all further inquiry respecting the neutrality of the property. 2. If it does not, then whether the testimony offered appears to warrant the sentence of condemnation at Jamaica. I shall confine myself to the consideration of the first question, because, in my opinion, it will govern and determine the case. It is a clear and settled principle of law, that the sentence of a court of competent juris- diction, as to the direct point under decision, is conclusive upon all other courts of the State within whose limits it is pronounced. Even foreign decrees, whether sustaining a claim or dismissing it, are, from a regard to util- 18*] ity, and ex comitate, *generally received and held binding by the regular tribunals of all other nations, in which the administration of justice is orderly and civilized. (Mosely, 1; Str., 733; 1 Rep., 258, 260; 4 Term, 185, 192; 2 Ersk. Inst., 735 ; 2 Kaimes's Eq., 365, 376.) But the sentences of foreign courts of ad- miralty are especially received as binding, be- cause 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 known to every country, and equally open to all the world, all persons are therefore concluded by their sentences, in cases within their jurisdiction. (Doug., 610, 614, 615, 617; 3 Term, 330; 2 Kaimes, 376.) We find, accordingly, that the English courts, as early as the reign of Charles II. (Hughes v. Cornelius et al, Raym., 473; 2 Show., 242), regarded the decision of the French admiralty in a question of prize as conclusive upon them, although, at that time, England was a neutral, and France a belligerent power; and the judges observed that sentences in courts of admiralty ought to bind generally, according to the jus gentium. Lord Holt more than once recognized this law, and gave it the sanction of his name. (2 Lord Raym., 893, 935; 1 Show., 6; Garth., 31.) In modern times, when the law of nations and commercial law have been better under- stood, and more correctly defined, the doctrine that sentences of foreign admiralties were con- clusive has been admitted in the fullest lati- tude, and the English Court of K. B. has re- peatedly decided that condemnation in a foreign admiralty, as enemy's property, of property warranted neutral, were conclusive evidence against the insured of a breach of his warranty. (Bernadi v. Motteaux, Doug., 575; Barzillay v. Lewis, De Souza v. Ewer, Saloucci v. Woodmason, and Mayne v. Walter, reported in Park.) These several decisions, whilst they incontrovertibly establish the doctrine that if no special ground of condemnation appears 19*] *and the property is condemned general- ly as enemy property, or as good and lawful prize, other courts are bound to consider the de- cree as decisive evidence that the property was not neutral; yet they do at the same time, admit that if the foreign sentence be altogether am- biguous, evidence will be let in to explain. So if the sentence be unjust on the face of it, and reasons are given for it which are manifestly illegal, and against the law of nations, other courts have a right to judge of those reasons was the amount of the decision of this court in the case of Smith v. Murray & Mumford, in January Term, 1797. The English law, thus understood and ex- plained, I consider as no novel doctrine, but a part of the common law of the land. It is, in- deed, the prevailing usage in most countries whose jurisprudence is enlightened, and whose administration is regular. It could not, in- deed, exist in the civil law, because the whole known world was subject to the Roman Em- pire ; but in countries where the civil law has been adopted and modified, the same principle prevails, and a person condemned by the sen- tence of a foreign court, confessedly com- petent to the case, can have no redress but by a court which has power to reverse the d"e- ree. The sentence of the Admiralty Court at Jamaica, cannot truly be said to have been res inter alias. The assured, in the present case, was a party to the suit instituted, and to the condemnation had there, and he applies here to have the same question which was agitated there, and which was decided against him, tried anew, namely, whether his property, which he warranted to be American, had the requisite insignia to entitle it to the privilege of neutrality. I am, accordingly, of opinion that the sen- tence of condemnation being direct, so as to induce a necessary conclusion that neutral or enemy property was the point in issue and de- cided, and containing nothing which appears *to be contrary to the law of nations, is [*2O decisive against the plaintiffs, and that judg- ment ought to be rendered for the defendant. RADCLIFF, J., not having heard the argu- ment in the cause, gave no opinion. Judgment for the defendant. 1 Followed 1 Johns. Gas., 342 : 2 Johns. Gas., 130. Overruled 2 Johns. Gas., 451. Cited in 2 Johns. Gas., 142, 177, 192. JONES & CRAWFORD 0. REED. 1. Jurisdiction Of Inferior Courts Implied Power. 2. Justice's Court Jurisdiction Practice. 3. Judgment By Justice Joint Debtors Process executed against one only. Where a warrant was issued by a justice, against two joint debtors, and one only was taken and brought into court, and the other did not appear, and the justice gave judgment against both, it was held that the justice could not proceed to give judg- ment until both of the defendants were brought in- to court. (But see Rev. Laws, vol. 1, p. 49.) Citations 3 Burr., 1366; 3 Term R., 44; 4 Black. Com., 268; Stra., 1256; 2 Ld. Raym., 1144. 1 Ld. Raym, 80; Cowp., 19; Salk., 406. IN error on certiorari. The plaintiffs in error were sued as joint debtors, before the jus- 1. See post, Goix v. Low, decided in April Term, 1800 ; and Vandenheuvel v. The United Insurance and to determine upon their validity; and this | Company, in January Term, 1801. JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. 15 20 SUPREME COURT, STATE OF NEW YORK. 1799 tice in the court below. A warrant was issued against both, but one of them only was taken, and brought into court; and the other did not appear. The plaintiff below declared against both defendants, and the one taken, having pleaded alone, an issue was thereupon joined, and tried by a jury, who found a verdict for the plaintiff, on which the justice gave judg- ment against both defendants. Per Curiam. It is a clear and salutary prin- ciple, that inferior jurisdictions, not proceed- ing according to the course of common law, are confined strictly to the authority given them. They can take nothing by implication, but must show the power expressly given them, in every instance. (3 Burr., 1366; 3 Term, 444; 4 Black. Com., 268; Stra., 1256; 2 Ld. Raym., 1144; Salk., 406.) The sound rule of construction, in respect to the courts of justices of the peace, is, to be liberal in reviewing their proceedings, as far as respects regularity and form, and strict in holding them to the exact limits of jurisdic- tion prescribed to them by statute. (1 Ld. Raymond, 80; Cowp., 19.) * To apply these principles to the present case. The act making joint debtors answerable to their creditors, separately, and giving a new mode of proceeding, is posterior to the act grant- ing civil jurisdiction to justices of the peace, and makes no mention of them. (Rev. Laws, vol. 21*] 1, p. 358.) It directs that *process shall issue against the joint debtors, in the manner then in use ; and if either be taken and brought into court, he shall answer. This act contemplates, in every instance, a compulsory process, on which the defendant is taken and brought into court ; and, until that be done, the court cannot proceed in the case ; where- as, the Ten-pound Act, giving civil authority to the justices, directs only a summons, in the first instance, against freeholders and inhabit- ants having families; and if the summons be personally served, and the defendant does not appear, the justice cannot compel him, but is to proceed and try the cause, without his either being taken or brought into court. The act as to joint debtors, accordingly, gives a power and jurisdiction different from, and un- known to, the Ten-pound Act. So, in respect to execution, the act relating to joint debtors directs that the execution shall be against all the debtors, but shall not, however, issue against the body, or sole property of the one not taken nor brought into court; whereas, by the Ten-pound Act, execution is directed to issue against the goods and chattels of all the persons against whom it is granted; and for want of sufficient goods of such persons, their bodies are to be taken. Here are new powers and new modes of pro- ceeding, applicable to the courts of common law, and contrary to the express forms and di- rections given to the justices' courts, and in which no mention is made of them. The court are therefore of opinion that, according to the settled rules of interpretation, justices of the peace have no jurisdiction in the case of joint debtors, unless both are duly served with process, and that therefore the judgment in this case must be reversed. Judgment reversed. 1 Approved 17 Barb., 508. Cited in 19 Johns., 35 ; 3 Wend., 268 ; 1 Denio, 159 ; 55 N. Y.,6; 56 Barb., 519; 9 How, Pr., 250; 22 How, JPr., 364 ; 1 Blatchf ., 99. *KEATING t>. PRICE. P22 Evidence Parol Agreement Performance. Evidence of a parol agreement to enlarge the time of performance of a written contract, previously made, is admissible. THIS was an action on the case founded on a special agreement. The plea was the general issue, with a notice from the defend- ant that he would insist on some special matters in his defence, which, with reference to the 1. By the 18th section of the revised Act, passed the 7th April, 1801 (LawsN. Y. vol.1, p. 500), justices are now empowered t/> proceed against joint debtors, where some of them are not served with process, or brought into court, in the same manner as is prescribed in the 13th section of the act for the amendment of the law. NOTE. Wriit en contract, extension of time of per- formance 1>y parol, place of performance. The time of performance of a simple written con- tract can be extended by subsequent parol agree- ment, and evidence of such extension is admissible. Jonf* v. Alley, 4 Greene (la.), 181 ; Cox v. Carroll, 6 la., 350; Barker v. T. & R. K. R. Co., 27 Vt., 706; Fleming v. Gilbert, 3 Johns., 520 (528); Blood v. Goodrich, 9 Wend., 68 ; Clark v. Dales, 20 Barb., 42 ; Solomon v. Jones, 3 Brev. (S. C.), 54 ; but see Doar v. Gibbes, 1 Bailey Ch. (S. C.), 371. The same is true of contract under seal. Esmond v. Van Beoachoten, 12 Johns., 366, Flyn v. McKeon, 6 Duer, 203; Meehan v. Williams, 2 Daly, 367; S. C., 36 How. Pr., 73; Stryker v. Vanderbilt, 1 Dutcher (25 N. J. L.), 482. See Haynes v. Fuller, 40 Me., 162 ; Chapman v. Mc- Grew. 20 111., 101. New consideration for such subsequent parol agrr-ement is unnecessary. Cox v. Bennet, 1 Green (N. J. L.). 165; Clark v. Dales, 30 Barb., 42. In Thrall v. Mead (40 Vt., 540) such agreement, made without consideration.after debt became; due, w:is hc'ld to be void; contra of agreement made be- fore debt became due. Kxtension of time for performance does not de- prive of right to insist on liquidated damages. Es- mond v. Van Benschoten, 12 Barb., 366 ; Hasbrouek v. Tappen, 15 Johns., 200. Time, in a written contract, cannot be made easen- 220 tial by parol agreement. Jones v. Alley, 4 Greene (la.), 181. Time for performance of written contract within statute of frauds cannot be extended by parol. Hasbrouck v. Tappen, 15 Johns., 200; Blood v. Goodrich, 9 Wend., 68; and see Doar v. Gibbes above cited. Contra, Cummings v. Arnold, 3 Met., (Mass.) 486; Stearna v. Hall, 9 Cush.. 31. Written contract for sale of goods, silent as to time from which warehouse rent should be allowed. Held, that parol evidence admissible as to general custom, bvit not to show parol agreement between parties. Fawkes v. Lamb., 8 Jur. N. S., 385 ; 31 L. J. N. S. (Q. B.), 98; 10 W. R., 348. Place of perform- ance, as well as time, of written contract may be varied, or, if left indefinite, be fixed, by subsequent parol agreement. Mnsselman v. Stoner, 31 Pa. St., 265; Langford v. Cummings, 4 Ala., 40; Cox v. Ben- net, 1 Green (N. J. L.), 165; Franchot v. Leach, 5 Cowen, 506 ; Esmond v. Van Benschoten, 12 Barb., 366. Contra Handley v. Moorman, 4 Bibb, Ky. 1. Variation of written contract by parol reduces the whole matter to the level of a parol contract. Boyd v. Camp., 31 Mo., 163; Vicary v. Moore, 2 Watts (Pa.), 451; Dana v. Hancock, 30 Vt., 616; Briggs v. Vt. Central R. R. Co., 31 Vt., 211 ; Barker v. T. & R. R. R. Co., 27 Vt., 766. JOHNSON'S CASES, 1. 1799 COVENHOVEN V. SEAMAN ET AL. 22 point decided by the court, it will be unneces- sary to state. On the trial before Lansing, Chief Justice, at the last Rensselaer circuit, the plaintiff proved a written agreement, as set forth in the dec- laration, by which the defendant promised to deliver to the plaintiff, at the city of Albany, fifty thousand pipe staves, at a stipulated price, on or before the 1st day of May, 1796. On the part of the defendant, it was, among other things, proved, by one R. Wait, that in the month of January, 1797, he had a conver- sation with the plaintiff, who informed him that he, the plaintiff, had made the contract with the defendant for the delivery of the staves, as above mentioned, but that he had agreed to extend the time for delivering them until the next spring. A verdict was taken for the plaintiff by con- sent, subject to the opinion of this court on several points, and among others, whether the time for performing the contract could be ex- tended, by a subsequent agreement between the parties, and whether Wait's testimony could be received to prove the declaration of the plaintiff to that effect. If so, it was agreed that a nonsuit should be entered. Mr. Burr for the plaintiff. Mr. Woodworth for the defendant. Per Curiam. This being, originally, a sim- ple contract, we are of opinion that it was competent for the parties, by parol agreement, to enlarge the time of performing it, and that Wait's testimony, to prove the plaintiff's dec- laration to that effect, was properly received. An extension of the time may often be essential 23*] to the performance of executoiy *con- tracts, and there can be no reason why a subse- quent agreement for that purpose should not be valid. Let a nonsuit be accordingly entered. Judgment of nonsuit. Cited in 3 Johns., 531 : 8 Johns., 193 ; 19 Johns., 242 : 5 Cow., 498 ; 7 Cow., 50 ; 1 Wend., 318 ; 2 Wend., 404 ; 6 Wend., 292, 296 ; 9 Wend., 79 : 30 X. Y., 307 ; 45 N. Y., 59 ; 67 N. Y., 481 ; 4 T. & C., Ill ; 1 Hun., 553 ; 20 Barb., 64 : 4 Duer, 292 ; 5 Duer, 206 ; 1 Hall, 361 ; 89 Penn. St., 133. COVENHOVEN r. SEAMAN ET AL. Recognizance Prosecuting Suit Nonsuit and Surrender. Citations Carth., 519; Fitz. Nat. Brev., 68. In an action of debt, on a recognizance, given in an action tit, homine replegifindo, that the plaintiff, who sued out tlie writ of replevin, " should prove his liberty, &c., and personally appear in court, and prosecute his suit to effect," and the plaintiff suffer- ed a judgment of nonsuit, and then surrendered himself to the defendant, who accepted him, and thf bail paid the costs of suit ; it was held that, sub- mitting to a nonsuit was not prosecuting 1 the suit to effect, and that the recognizance was forfeited : and that the acceptance of the plaintiff, by the defend- ant, in the action of replevin, did not discharge the right of action on the recognizance against the bail. THIS was an action of debt on recognizance, by which the defendants bound them- selves to the plaintiff in one hundred pounds, conditioned, that a certain Jacob Jones, whom the plaintiff claimed and detained as his slave, and who had sued out his writ of homine re- JOHNSON'S CASES, 1. plegwndo, should "prove his liberty in the most proper and expedient way and means, and should personally appear in this court, and his suit, in that behalf, prosecute with effect." The plaintiff, in his declaration, averred that the said Jacob did not prove his liberty, nor prosecute his suit in that behalf with ef- fect, but suffered judgment as in case of non- suit to be entered against him for not proceed- ing to trial. The defendants pleaded, 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 ac- cordingly accepted him, and that the defend- ants have since paid to the plaintiff his costs of suit. To this plea there was a general demurrer and joinder. i Mr. Riggs for the plaintiff. Mr. Munro for the defendant. Per Curiam. The defendants, by their re- cognizance, 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 proper and ex- pedient way. 2d. That he should personally appear in this court ; and 3d. That he should prosecute his suit in that behalf with effect. Instead of a compliance with these stipulations, *it appears that Jones has not proved [*24 his liberty, nor prosecuted his suit with effect, but has suffered judgment to be entered against him, as in case of nonsuit, and has, at the prayer of the plaintiff, surrendered himself to him. The condition of the recognizance has there- fore not been performed. A party submitting to a nonsuit does not prosecute the suit to ef- fect (Carth., 519), nor if the writ be abated for any cause, will it save the recognizance, un- less another writ be sued out with due dili- gence. The case given in Fitzherbert (Nat. Brev., 68), is very analogous to the present. "In a homine replegiando, the plaintiff was bound by recognizance, in a certain sum of money to the defendant's use, that he would sue him cum effectu. And it was held that, if the writ abate for any cause, yet he ought to sue another writ for the taking, &c., otherwise he shall forfeit his recognizance." The only question that can be raised is, whether the surrender to the plaintiff, and the acceptance by him, amounted to a discharge of the recognizance. We think there is no ground for that opinion. There were good reasons for the stipulations in the recognizance, that the suit should be prosecuted to effect, and the question of the freedom or servitude of Jones be 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 possession of his property. We are therefore of opinion that the plea is bad, and that judgment must be rendered for the plaintiff. Judgment for the plaintiff. Approved 14 Johns., 268. 25 SUPREME COURT, STATE OF NEW YORK. 1799 25*] *TUTTLE v. MASTON. Justice's Court Jurisdictional Limit Claim. In an action before a justice, the plaintiff's dec- laration may contain several counts, for several causes of action, for $35 each, if they do not in the whole amount to more than the sum of $300, and the plaintiff concludes with stating his damages at $25 only. IN error on certwrari. It was specially as- signed and relied upon, as error in this case, that the declaration before the justice contained two counts, in which the plaintiff below stated two several causes of action, on different days, and each of them to the value of 10, and it was contended, that as the sums demanded in the two counts exceeded the value of 10, the justice had no jurisdiction, it being limited in amount to that sum. Per Curiam. The plaintiff below concluded, by demanding the sum of 10 only. In gen- eral, when the action sounds in damages, the sums alleged in the different counts of the dec- laration are not material, and may be arbitra- ry. Notwithstanding the limitation in a jus- tice's court, there can be no error, if the dam- ages in the aggregate, do not exceed the sum of 80, to which the jurisdiction of that court extends, provided the balance claimed be 10, or under. We are therefore of opinion that the exception is not well taken. Judgment affirmed. Cited in 12 Johns., 435. See Post, 333. DOE v. ROE. Divorce Adultery Confession of Wife cor- roborated. On a feigned issue to try the fact of adultery, it was held that the confessions of the wife, connected with other proofs, were admissible in evidence. Such confessions, however, if made by collusion, or with a fraudulent intent, are entitled to no weight. THIS was a feigned issue from the Court of Chancery. One P. S. filed his bill in that court, against Catharine, his wife, to ob- tain a divorce for adultery, pursuant to the statute of the 30th of March, 1797. The fact being denied by her answer, the Chancellor directed it to be tried on this issue. On the trial before Mr. Justice Kent, at the last August sittings in New York, evidence was given, among other things, of the con- fessions of the wife, to prove her guilt, and a verdict was found for the plaintiff. *It was now moved to set aside this [*26 verdict, on the ground that the confessions of the wife were incompetent evidence, and, by consent of parties, the question was submitted to the opinion of the court. Mr. Riggs for the plaintiff. Mr. Jones for the defendant. RADCMPF, J. The confessions of the wife, when connected with other proof, were, in the first instance, admissible. But if it had ap- peared that such confessions were made with a fraudulent design, or by collusion with the husband, in order to obtain a divorce, their effect would be destroyed. No circumstances appear in this case to induce that belief. I therefore think that the evidence was properly admitted, and that the verdict ought not to be disturbed. KENT, J., and BENSON, J., concurred in this opinion. LEWIS, J. The confessions of the wife, in my opinion, ought not to have been admitted. It was clearly contrary to the spirit of the statute, which requires proof of incontinence, where the party who is defendant in equity does not deny the allegations of the complain- ant's bill, or where, according to the course of that court, the bill ought to be taken pro con- fesso. This manifests an intention in the Leg- islature to prevent collusion, which cannot be effected, if a jury be permitted to be influ- enced, as in ordinary cases, by the confessions of the parties. LANSING, Ch. J. I am also of opinion that the confessions of the wife ought not to have been admitted; and as it does not judicially appear who are the real parties, we may avail ourselves of the circumstance that we are de- ciding between fictitious parties, to exclude these confessions, by which we shall prevent collusion, and thereby promote the object of the statute. Motion denied. Cited in 1 Johns. Ch., 198 ; 12 Barb., 388 ; 62 Barb., 142. NOTE. Action fnr divorce on the yrmmd of a&ui- tery, confession of defendant, admissibility and effect. Courts have varied greatly in their treatment of evidence of such confessions. In some cases it has been rejected entirely. Hansley v. Hansley, 10 Ired., N. C., 506, and see Edwards v. Edwards., 3 Pitts. (Pa.), 333, and Bette v. Betts, 1 Johns. Ch., 197. The weight of authority, however, makes such evidence admissible, but not alone sufficient ground for a decree. Baker v. Baker. 13 Cal., 87 ; McCulloch v. McCulloch, 8 Blackf. (Ind.), 60; Holland v. Hol- land, 2 Mass., 154; Baxter v. Baxter, 1 Mass., 146; j Armstrong v. Armstrong, 32 Miss., 279 ; Washburu | v. Washburn, 5 N. H.. l95;Matchin v. Matchin, 6 Pa. St., 332; White v. White, 45 N. H., 121; Burgess 228 v. Burgess, 47 N. H., 395; Sheffield v. Sheffield,- 3 Tex., 79 ; Lyon v. Lyon, 62 Barb., 138 ; Betts v. Betts, 1 Johns. Ch., 197. In a few cases, where the circum- stances entirely exclude the idea of collusion, clear and satisfactory evidence of confession of adultery by the defendant has been deemed sufficient ground for a decree. Vance v. Vance, 8 Green 1. (Me.), 132 ; Billings v. Billings, 11 Pick., 461; Lyon v. Lyon. 62 Barb., 138. In general it may be said that the value of such confessions depends too much upon the pe- culiar circumstances of each case to admit of laying down any satisfactory general rule. Many ot the States have statutory provisions on the subject, a recital of which would be impossible here. Compare also Abbott's Trial Evidence, page 747 ; Bishop on Marriage and Divorce, Vol. 2, Paragraph, 240 etseq. JOHNSON'S CASES, 1. 1799 VREDENBERG v. HALLETT AND BOWNE. 27*] *VREDENBERG HALLETT AND BOWNE. Interest Delay in Judgment. Where the cause of action is such as to carry in- terest, and judgment is delayed after verdict, the plaintiff is entitled to interest on the amount of the verdict, to the time of the taxation of costs, after judgment; and the interest is to be taxed with the costs, de incremento. rPHE plaintiff obtained a verdict some time JL since, on which judgment was not rendered until this term. The action was on a policy of insurance, upon which the plaintiff was en- titled to interest on the amount of the loss sus- tained, from the time it ought to have been paid. The interest was accordingly included in the sum found by the jury, and calculated by them, agreeably to the practice of the court, down to the term subsequent to the verdict. After the trial, a case was made for the opinion of the court, which was delayed for argument, and was not decided until the present term. Per Curiam. The plaintiff must be allowed the interest on the amount of the verdict, un- til the time of taxing the costs in this action, and the same must be taxed, together with the costs. In all actions founded on contracts carrying interest, and delayed under similar circum- stances, the like interest may, in like manner, be taxed. 1 Cited in 19 Wend., 101 ; 3 Hill, 431 (n) ; 2 Denio, 190 ; 12 Abb. N. S., 384. CATHCART v. CANNON, Manucaptor, &c. Exonereter Principal in State Prison for Life. Bail are entitled to an exoneretur where the prin- cipal is committed to prison on a charge of felony. "DEFORE the return of the capias issued .D against the defendant, as bail, application was made to a judge, after April Term, 1798, for a committitur of the principal, who was j confined in prison in Herkimer County on a charge of felony, which was refused. In Sep- tember following, the principal was convicted and sentenced to the State prison for life. A rule to show cause why an exoneretur should not be entered, was afterwards ob- tained. Per Curiam. It appears that the defendant made a bona fide, attempt to surrender the prin- cipal, before the return of the capias, which was frustrated. The principal was afterwards imprisoned for life, and had the surrender been completed, it could not have benefited the plaintiff. The rule must be made abso- lute, on payment of costs. Rule granted. Cited ( ) in 6 Cow., 599 ; 38 N. J. Law, 248. PALMER, widow, &c., Demandant, v. HORTON, Tenant. Dower Attainder of Husband. The wife of a person attainted, under the Act of the 22d October, 1779, is entitled to dower out of the estate of her husband which has become forfeited. IN dower. Palmer, the late husband of the demandant, was attainted, in pursuance of the Act of the Legislature of this State, en- titled, "An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this State," passed the22d October, 1779, and his estate was thereby forfeited to the people of this State. The demandant, in this case, claimed to be endowed of the premises in question, which are a part of the real estate so forfeited. Mr. Ogden for the demandant. Mr. Hoffman for the tenant. The Court, without hearing an argument, gave judgment for the demandant, and said 28*] they had frequently decided *in this court that the forfeiture of the estate of the husband, in pursuance of the act above men- tioned, did not forfeit the wife's right of dower. Judgment for demandant. Cited in 8 Johns., 105 ; 19 Wend., 101. 1. See People v. Gaine, 1 Johnson, 343, 8. P. JOHNSON'S CASES, 1. M'NEALY v. MORISON. Retainer Notice from two Attorneys surprise. If the plaintiff's attorney receives notice of a re- tainer from two attorneys, for the defendant, he ought to inform the second attorney of the first no- tise, to prevent surprise. rpHE plaintiff's attorney received notice from _L an attorney for the defendant, in July; and in September following, received the like notice from another attorney; the copy of the declaration was served on the first attorney, but not on the second, and a default entered for want of a plea, which the second attorney now moved to set aside. . Mr. Sleight for plaintiff. Mr. Bowman for defendant. Per Curiam. It was incumbent on the plaintiff's attorney to inform the attorney from whom he received the *second notice of [*2O retainer, that he had already a similar notice from another attorney, so as to prevent a sur- prise. Let the default be set aside, with costs. Rule granted. HAMILTON v. HOLCOMB ET AL. Amendment of Record Suggestion of Death of Party. On error coram vobis, amendment of the record allowed by entering a suggestion of the death of one of the defendants, pending the original action. Citation 5 Term R., 577. A FTER imparlance, and before judgment, J\. S., one of the defendants died; judgment 229 29 SUPREME COURT, STATE OF NEW YORK. 1799 was afterwards entered up against both de- fendants, and an execution issued against the survivor, without any suggestion on the roll of the death of the other defendant. After error, coram vobis, a rule was obtained to show cause why the record should not be amended by suggesting the death of S. Mr. Whiting showed cause.and contended that the application was too late, after the proceed- ings were no longer on paper. He cited 2 Viner, Amend. (H., sec. 17, G. 2.) Mr. Woods, contra, cited Newnham v. Law (5 Term, 577). Per Curiam. The case of Newnham v. Law, which has been cited, is in point. Courts of late have adopted the practice of granting all amendments to which the party would have been entitled, as of course, provided it be of no prejudice to the other party. The rule must be made absolute on payment of the costs of this motion, and of the writ of error. Rule granted. WILD *. GILLET. Nonsuit Trial not had Stipulation Laches*. On motion for judgment, as in case of nonsuit for not proceeding to trial, the rule will not be granted, if the plaintiff stipulate to bring the cause to trial at the next circuit. Such motion must be made the next term after the default, or the plaintiff need not stipulate. A MOTION was made for judgment, as in li. case of nonsuit, on the usual affidavit. Per Curiam. A defendant is not entitled to judgment, as in case of nonsuit, for the first default, provided the plaintiff will stipulate to bring the cause to trial at the next circuit; but if the plaintiff can sufficiently account for the default, he will not be required to stipu- late. Ip all cases, the defendant must make this motion the next term after the default, or he will be deemed to have waived his claim to a stipulation on the part of the plaintiff. CLASON & STANLEY v. CHURCH. Consolidation Imparlance Consent. Where there are several actions on one policy of insurance, the court will grant imparlances in all but one, until the plaintiffs consent to enter into the consolidation rule, which is the same as the English rule. rPHERE were eighteen different suits on one JL policy of insurance. In July Term last, the plaintiff having refused to enter into the consolidation rule, the court granted impar- lances in all the causes but one, and did the same in October Term; and Mr. Boyd, for the defend- ant, now moved for further imparlances. Mr. Riggs, contra, produced an agreement which had been offered to the defendant, and refused by him, which he contended would have the same effect as a consolidation rule. 3O*] *Per Curiam. The court adopt the English consolidation rule, and will not per- mit the plaintiffs to prescribe any other. Rule granted. FITZROY . CARD ET AL. Special Motion Affidavit Service. A copy of the affidavit on which a special motion is founded, must be served on the opposite party. A MOTION was made for judgment, as in IJL case of nonsuit, for not proceeding to trial, on the usual affidavit; but no copy had been served on the opposite party. Per Curiam. It is a rule of practice, with- out exception, that whenever a special motion is to be made, founded on an affidavit, a copy of such affidavit must be regularly served on the opposite party. Rule refused. 280 BATES *. WILLIAMS. Imprisoned Debtor Service of Petition. Service of notice of petition, under the act for the relief of debtors, &c. ON proceedings under the act for the relief of debtors, with respect to the imprison- ment of their persons. The court said, that where the plaintiff, the creditor, resided out of the State, service of a notice of the petition on the attorney in the suit was sufficient. *BIRD, assignee of the Sheriff of, &c., [*31 v. MABBETT ET AL. Equity Bail-bond Forfeiture. The court will not exercise its equity power in granting relief on bail bonds until after the condi- tion is forfeited. THE original suit was against five defend- ants, four of whom were arrested, and the sheriff returned, as to the other, non ext inventus; but, by mistake, took a bail-bond for the appearance of all the defendants. The four defendants who were taken, put in special bail, to which there was no exception. A suit was afterwards brought on the bail-bond against all. Mr. Wood-worth, for the : defendant, now moved to set aside the proceedings for irregularity. Mr. Bird, contra. This is an application to the equity powers of the court, which can never be exercised until after a forfeiture of the condition of the bond. The defendants must resort to their plea. Per Curiam. The court will not exercise its equitable power in granting relief until after a forfeiture of the condition of the bail-bond. The defendants must rely on their plea of comperuit ad diem. Rule refused. JOHNSON'S CASES, 1. 1799 PHELPS v. BALL. 31 PHELPS v. BALL. Amendment Fi. fa. A fieri facias was allowed to be amended after it had been returned satisfied. A MOTION was made to amend the fieri JjL facias in this cause, after it had been re- turned satisfied, by correcting two mistakes which appeared in the writ. Sir T. Jones, 41, was cited. Per Curiam. Take your rule. HERRING v. TYLEE. Amendment Interrogatories Ambigiiity. Practice on attachment against a sheriff. n^HE sheriff being brought up on an attach- -L ment, the court said that the plaintiff must file his interrogatories in four days; and the sheriff was ordered to enter into recogni- zance of one hundred dollars, to appear de die 452*] in diem. *The clerk was directed to take the answers to the interrogatories filed, and report the same to the court. After the sheriff had answered, a motion was made to iimend the interrogatories; and the court said, as the amendment did not relate to any new JOHNSON'S CASES, 1. matter, but only to explain an ambiguity, and obtain a more full answer to the matters already stated, the amendment might be al- lowed. IN THE CASE OF T. BAILEY. Costs Suits by and against Attorneys. Costs in suits by or against attorneys. IF an attorney sues by attachment of privi- lege, for a debt less than one hundred pounds, he can recover no more costs than in the Court of Common Pleas; but if the attor- ney is sued in this court for less than one hun- dred pounds, the plaintiff may recover full costs against him. Cited in 1 Johns., 537. COOPER v. ASTOR. Costs Taxation Appearance. Taxation of costs. rPHE court decided that if costs be not -L taxed on the day at which the notice is given for that purpose, and the opposite party does not appear, the taxation may be made on a subsequent day, without further notice. 231 CASES ADJUDGED SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, IN APRIL TKUM, IN" THK YKAR 1799. 33*] * JACK SON, ex dem. VAN ALEN, v. ROGERS. 1. Seal Property Parol Gift of Land. 2. Dis- seisin By Election. 3. Id. Donee by Parol Ejectment. 4. Id. By Election Dense. A parol gift of land creates only a tenancy at will. If the donee lease the land, and the donor merely permits the lessee to build, and enjoy the term, the lease cannot operate as a disseisin, nor prevent the donor from devising 1 the land, so that the devisee may maintain an action of ejectment, without giving notice to quit. Citation Cowp., 482; 1 Burn. & E., 94; 7 Burn. & E., 85; Cro. Eliz., 156; Co. Litt., 57 ft; 2 Leo., 45; 1 Burr., 79; 1 Salk., 246; 1 Burr., 110; Saunders on Uses, 240, 241,252; Palm., 205: Cro. Jac., 659; Cro. Car., 302; Butler's Co. Litt., 330 b. (n.), 285; Harg. Co. Litt., 57 a (n)379; 1 Burr., 112, 113; 1 Cowp., 693; 1 Burr., Ill ; 1 Burr., 60. 2 Black. Rep., 1173; 2 Black. Rep., 1224; 1 Term R., 53, 159; 4 Term R., 680. 2 Leo., 97 ; Palm., 205 ; Cro. Eliz., 238 ; 3 Leo., 233. THIS was an action of ejectment, brought to recover a lot of land and a storehouse, situate in the town of Kinderhook, in the County of Columbia. The cause was tried before Mr. Justice Lewis, at the circuit in that county, when a verdict was found for the plaintiff. From the report of the judge, which contained all the evidence in the cause, the following may be stated, as the most ma- terial facts in the case: It appeared that Lowrens Van Alen, under whom the lessor claimed, had been in posses- sion of the premises in question for thirty years, and upwards, previous to his death; that a daughter of Van Alen had married one John C. Holland; that Van Alen frequently declared that he intended to leave the prem- ises to his daughter after his death; that Hol- land often applied to him for a deed *of [*34 the premises, which was refused, probably on account of Holland's being addicted to the in- temperate use of liquor, and he did not choose to put the property in the hands of Holland. At length, however, he said to Holland, "Well, you may take the kraal (meaning the prem- ises) and I will deduct 60 from your wife's portion," but no deed or writing for the prem- ises was executed to Holland or his wife. This offer by Van Alen was made before the store on the premises was built. Shortly thereafter, in the year 1785, while Van Alen was still in possession of the premises, having a crop growing thereon, Holland made a lease of the premises to one M'Mechan, for nine years, in consideration of which, M'Mechan, among other things, covenanted to erect a storehouse on the premises, which he accord- ingly did. Van Alen was at first dissatisfied, when he heard that Holland had made the lease; but he afterwards declared himself satisfied, saying it would benefit Holland's children. A witness on the part of the plaintiff proved that before the date of the above lease, M'Mechan informed him that he was going to take a lease of the premises from Holland, NOTE. Parol gift of land. In consideration of love and affection and of ser- vices, plaintiff, by parol, gave a farm to his son. The son took possession, J>aid taxes and occupied for five years and died. The plaintiff had always recognized his son as owner. Held, that evidence of the above facts should have been admitted and would have entitled the defendant, the son's widow, to receive a conveyance vesting in her and her child the farm, according to their respective rights. McCray v. McCray, 30 Barb., 633. To constitute a valid gift of real estate there must be a present intention to give, and an actual parting with the right of ownership. A parol gift is not consistent with subsequent acts of control by the donor. Collins v. Collins, 2 Grant's Cas. (Pa.), 117. In 1843 a son took possession of land under the following writing from his father : "James, I expect JOHNSON'S CASES, 1. to marry soon, and if you will settle on the Grayer farm you may have it. Thos. Ford." James took possession. In 1857, after his father's death, in an action for partition, the above was held a valid gift to be charged to him as an advancement under the statute. Ford v. Ellingword, 3 Met. (Ky.), 359. Voluntary conveyance of land to a child by a debtor, in compliance with a parol promise made when unembarrassed, held invalid. Rucker v. Abell, 8 B. Mon. (Ky.), 566. Every parol contract for the conveyance of land is within the statute of frauds, except where there has been such part per- formance as cannot reasonably be compensated in damages, and where it would be unjust to rescind the same. Mooi-e v. Small, 19 Pa. St., 461. See also Rhodes v. Rhodes, 3 Sand. Ch., 279, and Malins v. Brown, 4 N. Y., 403. 233 34 SUPREME COURT, STATE OF NEW YORK. 1799 and erect a storehouse upon them; upon which the witness observed that the land did not be- long to Holland, but to the old gentleman (meaning Van Alen), who, he did not believe, would give a deed for it, and M'Mechan re- plied that it was all in the same family, and that Holhiud must make good his damages if lie .should sustain any. After the first lease expired, to wit, on the 25th August, 1794, Holland made a second lease of the premises to M'Mechan, for a further term, to continue until the 1st June, 1796, reserving an annual rent of 30. When Van Alen heard of the second lease, he was much dissatisfied, particularly when he found that the rent would be at the disposal of Hol- land, and would not be secured to his children, and frequently talked of taking the property into his own hands. He made his will on the 19th June, 1790, and thereby devised the i5o*] premises to his widow, the lessor *of the plaintiff, during her widowhood, with re- mainder to his two sons, in trust for his daughter, the Avife of Holland, and her heirs, and died in May, 1795. It also appeared that Holland, on the 1st October, 1790, had made another lease of part of the premises to one Ely, for 999 years, re- serving an annual rent of $s.; that on the 1st November, 1793, Ely made a sub-lease of the hay-scales, parcel of the premises, to Ludlow & Spencer; that on the 13th September, 1794, M'Mechan assigned the second lease made to him to P. Van Schaick, to secure the repay- ment of a sum of money advanced by him for the use of Holland; that on the 15th" October, 1794, Holland gave a written permission to the defendant and C. Silvester, to occupy a barn on the premises, which had been before oc- cupied by M'Mechan, until the 1st May, 1795, reserving a rent of 32s. ; and on the 22d June, 1 795, he gave a like permission to the defendant, to occupy a part of the same barn, for the term of four years, reserving an annual rent of 32*. Holland died in February, 1797, and the defendant held the premises under M'Me- ohan. The demise in the declaration was laid on the 1st June, 1795, and there was no proof of any notice to the defendant to quit. On the trial, a motion for a nonsuit was made on the part of the defendant, on two grounds: 1st. That there was not sufficient evidence of a possession in Van Alen for twen- ty years to enable the plaintiff to recover on the strength of any title derived from him. 2d. That Holland and the defendant, who claimed under him, were tenants from year to year, and as such, entitled to notice to quit; or Holland was a disseisor, and the devise of Van Alen to the lessor therefore void, and so the plaintiff could not recover in this action. This motion was overruled, and the judge submitted it to the jury to determine whether Holland had any interest in the premises, in- structing them that if he had, it could not exceed a tenancy at will, and if he was a tenant at will, his lease for years to M'Mechan was not JJ6*J a disseisin, *but at the election of Van Alen; for that Van Alen might consider him as his agent or attorney, or might elect to con- sider it a disseisin, or dispossession. He said that there was evidence of Van Alen's having made any election as to the second lease to 234 M'Mechan, except what might be inferred rfom his acquiescence under the first, and his i taking no measures to defeat the second, and I that, as far as the lessor of the plaintiff was i concerned, she had, by bringing her ejectment, elected to be dispossessed; that if they should J be of opinion that Holland had made the sec- i oud lease, under which the defendant held, i without the approbation or subsequent ac- j quiescence of Van Alen, the plaintiff ought to j recover. The jury found a verdict for the : plaintiff. A motion for a new trial was made, and ; argued by Menyrs. Voslntrgh, Spencer, and Bun-, \ for the plaintiff; and Mexsrs. Hopkins, E. Will- \ iamts, and Van Vechten, for the defendant. KENT, J. On the argument for a new trial I in this cause, on behalf of the defendant, it ! was contended that the lessor of the plaintiff i ought to recover. 1st. Because the lease from i Holland to M'Mechan amounted to a disseisin ' of Lawrens I. Van Alen, and destroyed his capacity to devise. 2d. That the second lease from Holland to M'Mechan was still subsisting at the com- I meucement of the suit, and was a legal impedi- j ment to the recovery. 3d. That the defendant, at all events, was i to be deemed a tenant from year to year, and { so entitled to six months' notice to quit. To constitute an actual disseisin or one in i fact, there must be a tortious entry and an ex- i pulsion. No such fact appears, or was pre- ; tended, in the present case, nor was here a dis- I seisin admitted by election. The distinction I between a disseisin by election, as contradis- ! tinguished from a disseisin in fact, was taken ! for the benefit of the owner of the land, and j to extend to him the easy and desirable remedy by assize, instead of the more tedious remedy ; by a writ of entry. Whenever an act is done i which of itself works an actual disseisin, it is i still taken to be an actual *disseisin, as [*37 if a tenant for years, or at will, should eu- ! feoff in fee. On the other hand, those acts ; which are susceptible of being made disseisins : by election are no disseisins till the election of j the party makes them so, as if a tenant at will, i instead of making a feoffment in fee, should i only make a lease for years. No such election was made in the present case, and, consequently, there was no disseisin. Making a devise has been deemed an intima- tion of an election, not to be disseised (Pouasly v. Blfifkman, Palm., 205; Cro. Jac., 659); and if Holland was tenant at will (and no greater interest can be allowed to have been in him, because no greater interest can be created by parol), a lease for years by him is no disseisin unless the true owner elect to make it so, nor does it destroy his capacity to devise. (Blundeii v. Eaugh, Cro. Car., 302.) These distinctions between a disseisin in fact and a disseisin by election, were brought into view, and enforced in the very distin- guished case of Atkym v. Horde (1 Burr., 60); and they have been historically and in- geniously illustrated by Mr. Butler, in a note to his edition of Coke Litt. (Butler's Co. Litt., 330, b, No. 285.) There is clearly no reason to consider Van Alen as disseised, in the pres- ent case, and incapable to devise; I shall there- JOHNSON'S CASES, 1. 1799 JACKSON, EX DEM. VAN ALEN, v. ROGERS. 37 fore pass this point without further remark, j notwithstanding the counsel for the defendant i appeared to consider it as strong ground in the cause. In respect to the existence and force of the second lease from Holland to M'Mechan, I would observe, that notwithstanding the gift of the premises by Lowrens Van Alen to Hol- land, the latter never had any greater interest in them than an estate at will, because Low- rens Van Alen made no alienation by writing, nor did he make any parol demise of them, ' ' for a term not exceeding three years, and reserving a rent thereon." Holland was con- sequently but a tenant at will when he made the leases to M'Mechan, and he had no au- thority to make either lease, because such au- thority resides not in a tenant at will, nor can 38*] *a parol gift of land in fee operate as an authority to make leases, since the statute of frauds declares what shall be the effect of such a parol grant: "It shall have the force and effect of leases or estates at will only, and shall not have any other or greater effect." Xor do I regard any imitation that may be given by the case, of the subsequent assent of Lowrens Van Alen, to either of the leases, be- cause it is a settled point that no subsequent assent will make valid a void lease, although subsequent acts may operate as a new grant. (Cowp., 482; Doug., 50.) Both the leases to M'Mechan were void, because made by a tenant at will, who has no capacity to grant, and the attempt was a determination of the tenancy at will. 3. The last point is, whether the defendant was entitled to notice to quit. Where the holding is not for a determinate period, but from the reservation of an annual rent, or from other circumstances, it can be construed into a holding from year to year, the courts have adopted the rule that neither party shall determine the tenancy without pre- vious notice. (2 Black. Rep., 1173.) In the present case, the defendant entered under a void lease, and became a trespasser, at the election of Van Alen. No subsequent agree- ment was made, no actual rent was stipulated for, between him and Lowrens Van Alen; none was demanded or paid. Lowrens Van Alen did nothing that could recognize him as a tenant, or to create between them the rela- tion of landlord and tenant, and, consequent- ly, no notice to quit was requisite. I am therefore of opinion that the defend- ant take nothing by his motion. BENSON, J. From the report of the judge on the trial, I deduce the following, as the facts in the cause, viz. : That Van Alen, be- ing seised in fee of a lot or piece of land at Kinderhook, aliened it in fee to his son-in-law, Holland, sometime in the year 1785, but did not at any time execute to him a deed or writ- ing; for it, so that the alienation was by parol 39*] only; that Holland thereupon *made a lease of that parcel of it which constitutes the ! premises in question in the present suit, to | M'Mechan, for nine years, and one of the con- siderations in the lease was, that he was to build a store on the premises, which, at the expiration of the term, was to be for the bene- fit of Holland and his heirs. That M'Mechan i JOHNSON'S CASES, 1. entered, accordingly, and became possessed, and built the store; "that on the 25th August, 1794, Holland renewed the lease to M'Mechan to the 1st June, 1799, on an annual rent of thirty pounds; that the premises, from the time M'Mechan entered, in 1785, have been possessed by him, and the defendant, his assignee, as under the leases made by Holland; that Van Alen, by his will of the 19th June, 1790, devised his real estate to his widow, lessor of the plaintiff, during her widowhood, remainder to trustees, in trust, for the daughter, the wife of Holland, and died in May, 1795, and that Holland died in January, 1797. The demise is laid in the declaration on the 1st June, 1795. It may not be amiss for me to explain how I am to be understood, when I state it as a fact that Van Alen aliened in fee to Holland. It is obviously to be collected from the proofs, that Van Alen had made known his intention to grive the lot for the benefit of Holland's family; it is most probable, however, that he at first intended the gift shou-ld be by will, and, consequently, to wait until his own death, and that the property was to be secured in some manner, so that it should not be in the power of Holland to dispose of it, but, finally, he consented that the gift should take place instantly, and to trust it to Holland himself; his declaration, or parols, to Holland 'being, "Well, you may take the lot, and I will de- duct sixty pounds from your wife's portion." This was a gift, still possibly to be viewed as partaking of the nature of a sale; for although the lot was given, yet it was given at a certain price or value, at which it was to have been charged, as an advancement to Holland's wife. I do not, however, conceive it to be material to any question in the present suit, whether it is *to be considered as a gift or a sale; [*4O and I use the general term "alienation," as comprehending both, and equally applicable to either; the parols, therefore, appear to me sufficient to import an alienation, and they be- ing without limitation, the alienation is to be in fee, and an alienation in preaenti, as distin- guishable from a contract-or promise to alien, infuturo. It was not a matter resting in con- tract, or promise, except the implied promise of Van Alen to execute, within a convenient time, a deed in writing, the formal, but at the same time indispensable, act of consummation. The questions between the parties are, 1. Whether in a case of a parol alienation of land in fee, and an actual entry and con- sequent possession by the alienee, or his tenants thereupon, the alienor, although he may not have executed a deed in writing, shall not, nevertheless, be deemed to be so out of possession as to be incapable to devise it. Supposing the opinion of the court to be with the plaintiff on this question, then, 2. Whether the defendant may not affirm M'Mechan, his assignor, to have been a tenant for three years to Van Alen himself, from the 25th August, 1794, when the lease was re- newed by Holland to M'Mechan. My reasoning on these questions will be concise, for it appears to me the merits of them lie within a very narrow compass. It will be remarked, that I assume it, that until a deed in writing, whatever may have been 235 40 SUPREME COURT, STATE OF NEW YORK. 1799 the parol declarations of the alienor, the technical estate at law still remained in him, and on his dying intestate, it would descend to his heir, and that, consequently, it never passed to the alienee; the question, therefore, is more precisely this, can he also devise or otherwise dispose of it ? Whether an estate in fee could not have passed, by the common law, by parol only, need no longer be inquired into, since the statute for the prevention of frauds is express, that it cannot now pass un- less by writing. No other estate can pass to an alienee by parol, except the constructive estate at will, under the statute, and conse- 41*] quently, such alienee cannot pass *an estate or title to another, as derivative from an estate or title in himself; the title under which the person to whom Holland made leases took possession, was the title as then subsisting in Van Alen, but which he was bound, by his promise, to pass to Holland, by executing a deed in writing to him for that purpose. Van Aleu always had it in his option either to fulfil or recall his promise; and in the latter case, to have left Holland to seek a reparation in damages against him; so that Van Alen, as to his capacity to dispose, still continued seized, and consequently the premises all passed by his will to the lessor of the plaintiff. As to the second question, I have stated that the parol gift of Van Alen was an alien- ation in fee, and in present, as distinguish- able from a promise to alien infutttro; I have, however, admitted that it was not effectual to pass an estate to Holland, except a construct- ive estate at will, and that Van Alen might at any time have recalled his promise, and there- by have determined his will; I think, not- withstanding, that it was sufficient to give Holland a right, or authority to enter, and to make leases, equally effectual as if made im- mediately by Van Alen himself; but the au- thority from Van Alen to Holland being by parol, the acts of Holland under that au- thority, although in writing, cannot, as against Van Alen, have more validity than they could have if they were by parol only. The right, therefore, of Van Alen to avoid the alienation of Holland, and the consequent acts of Hol- land, are to be subject to a right in the lessees of Holland, if they choose to avail themselves of it, to affirm themselves to be tenants to Van Alen for three years, as to every lease which might have been made by Holland for that term, or exceeding it; so that if at any time, during the three first years of either of the leases, Van Alen had questioned the right of M'Mechan to enter and occupy, M'Mechan might have pleaded a lease from Van Alen by parol, for three years, and have given the parol gift of Van Alen in evidence, in main- tenance of his plea, or, in other words, as an 42*] act granting an authority *or power to Holland to make parol leases as durable, and in every respect as effectual against Van Alen as if they had been made immediately by himself; in short, that the lessee shall have the same means to defend his possession against Van Alen which he would have had to defend it against Holland, with this differ- ence, that, as against the former, he can allege his agreements to- be by parol only. The con- 236 elusion from the whole is, that the defendant may affirm M'Mechan, and for the residue of the term unexpired, at the time of the assign- ment of the lease, may affirm himself to have been a tenant for three years, and to the lessor of the plaintiff, his devisee, successively, from the date of the renewed lease, and from the expiration of that term, as tenant at will, from year to year; and consequently, that the de- fendant hath shown both that there was a term subsisting against the lessor of the plaintiff, at the time of the demise laid in the declaration, and also that he is entitled to the usual notice to quit; and my opinion, accord- ingly, is, that the verdict must be set aside, and that the posted, be delivered to the defend- ant to enter judgment of nonsuit. LEWIS, J. The grounds on which the present application is made, are, 1. That Lowrens Van Alen, under whose will the lessor of the plaintiff derives her title, was disseized previous to the time of making the devise, and so continued to the time of his death, and that his interest being thereby re- duced to a right, nothing passed by the devise. 2d. That if there was no disseisin, then Hol- land or M'Mechan was tenant from year to year, and entitled to notice to quit, or M'Mechan was tenant to Van Alen, under a subsisting lease, and, therefore, the plaintiff not entitled to recover. 3d. That the conduct of Van Alen savour- ed of fraud, in hanging out deceptive lights to purchasers. 4th. That the demise being laid previous to the election of the lessor of the plaintiff to be dispossessed, and not disseized, is erroneous, and that therefore the plaintiff ought not to re- cover. *5th. That the judge who tried the [*43 cause misdirected the jury. To simplify the facts, I shall consider M'Mechau, who is the defendant's principal, as the real defendant. On the first point, the supposed disseisin was contended for, first on the ground of Holland's being a tenant at will, and making a lease for years, for which the case of Blun- den v. Baugh (Cro. Car., 302) was relied on; secondly, because M'Mechan held adversely to Van Alen. It will be necessary to consider each ground. It is unquestionable law that a disseizee be- fore re-entry, cannot convey, even by devise; for by the disseisin, the fee is out of him. It is therefore necessary to examine whether Van Alen was disseized in either of the modes insisted on, or in any other. That he was not so by election is certain, for that being for his benefit, and for the sake of the remedy merely, is effected only by bringing an assize. The disseisin, then, if any, must have been an actual or compulsory one, that is, in spite of him, or as it is termed, nokm vokns; such as would have made the disseizor a good tenant to every prcecipe without taking away the right owner's entry. To attempt an accurate definition of this species of disseisin with all its effects and consequences, would be vain, since we have the authority of Lord Mansfield, in the celebrated case of JOHNSON'S CASES, 1. JACKSON, EX DEM. VAN ALEN, v. ROGERS. 43 Taylor, ex dem. Atkyns, v. Horde, for saying, that since the abolition of military tenures, little of it is left us but the name, and that the more we read, unless we are careful to distin- guish, the more we shall be confounded. Thus much, however, may be collected from the ancient writers on the subject, that disseisin always implied a wrong, a personal trespass, and tortious ouster; but that all these might combine, without necessarily producing a disseisin. For according to Bracton, a free- holder by disseisin differed from a possessor by wrong, whom he calls an intruder, and describes as acquiring a naked possession, without any seisin; and in the language of Lord Mansfield, in the case above cited, "this 44*] species of disseisin must *mean turning the tenant out of his tenure, and usurping his place and feudal relation, and at the present day, can exist only in the case of fines with proclamation." The case of Blunden v. Baugh was certainly not understood by the counsel who adduced it, for a principle directly and unequivocally the reverse of that contended for is there established by the opinion of three judges against one; the four judges of the Common Pleas assenting. The case was this.: Charles, Lord Nottingham, was seized of the land in question; William, Lord Effingham, his eldest son and heir ap- parent, being tenant at will to his father of the lands, leased them to Humphreys for twenty-one years. During the existence of this lease, they united in levying a fine, and the questions were, whether there was not a disseisin, partibus insitis; and if so, whether William or Humphreys was the disseizor; and it was held as above stated, that Charles was disseized, at his election only; that he was ten- ant of the freehold, the lease notwithstanding, and that therefore the fine was well levied; and that, had it been a disseisin, William, and not Humphreys, would have been the dis- seizor. Of the several modes of passing the estates, by the act of parties, that by devise is most favored, because it is considered as being made in extremis, and oftentimes in articulo mortis. Thus we find, in the case of Poussly v. Blackman (Cro. Jac. ,659), that on a bargain and sale of lands conditioned to be void, on the payment of a sum of money, and that the bargainee should not enter until failure of the condition, and the bargainer failed to make payment, and the bargainee did not enter, but devised the lands, and died, this was held a good devise, on which the devisee could main- tain ejectment. In Taylor, ex dem. Atkyns, v. Horde, this case is cited by Lord Mansfield, who observed, that from the manuscript re- port it appeared that the point of the decision was that the owner, by making a devise, showed his election not to be disseized. So in the present case, Van Alen, by devising the premises, elected not to be disseized. 45*] *From these authorities, it necessarily results that Van Alen was not disseized by Holland's lease to M'Mechan. In the course of the examination of the second point, I shall show that after the expiration of the lease for nine years M'Mechan became tenant at suffer- ance, and so not a disseizor, and that there- fore the premises well passed by the devise. JOHNSON'S CASES. 1. 2. The second point is whether the plaintiff is debarred from recovering by the want of notice, or by the subsisting lease for five years. In the concluding argument of the de- fendant's counsel, the idea of Holland's being a tenant at will was abandoned, and it was contended that M'Mechan was tenant from year to year, and, as such, entitled to a notice to quit. The only authority cited which in any manner applies to this part of the case, is that of Dagget v. Snowden (2 Black. Rep., 1224). The reports of Sir William Blackstone, though the production of an able judge, are not of the highest authority. They are post- humous works, edited by his executor who does not appear to have been a lawyer, and who has given them to the world without their having undergone the last revisal intended by the author. The case, however, goes no further than to say that certain tenancies at will are construed into tenancies from year to year, and that in such cases, a six months' notice to quit is required, unless where a special agreement, or a particular custom in- tervenes. But it was not shown that the ten- ancy in question was of this description; that it is not will appear from an examination of the latest authorities on the subject. The rule applies to those tenancies at will only, which are susceptible of a construction that will place them on a footing with tenancies from year to year; such as where an annual rent is reserved, and a holding over, by consent of the landlord. But when the lease is determin- able on a certain event, or at a 'particular period, no notice to quit is necessary; as was de- termined in the cases of Messenger V.Armstrong and Right v. Derby & Bristoio (1 Term Rep. , 53, 159). *Neither is it necessary, where [*4> the tenant has done an act, disclaiming to hold as tenant to the landlord. To apply this doctrine we must advert to the facts in the case before us. It is conceded that Holland never had an interest in the premises, and that the only evidence which looks like his having had 'an authority over them, was Van Alen's saying to him on one occasion, "John, you may take the kraal, and I will deduct 60 from your wife's portion." There is no evidence of his having ever made such deduction, nor can these words vest any species of interest, unless, perhaps, there had been an actual entry by Holland consequent thereon, when he might have been tenant at will. To what purpose he was to take it, then, was a question of fact for the jury to decide. From their verdict it appears that they did not consider it as intended as a gen- eral authority to make leases; and they were well warranted in such a conclusion by the in- variable, determination manifested by Van Alen, to appropriate that property to the benefit of his daughter and her children. Hol- land first made a lease for nine years, but no rent was reserved. The buildings to be erected by M'Mechan were the only consider- ation. Van Alen was at first dissatisfied with it, but upon reflecting that it would enhance the value of the premises to those for whom he intended them, he assented to the lease.and thereby ratified that particular act. M'Mechan thus became his tenant for nine years, a period certain, or at will by force of the stat- 237 46 SUPKEME COUUT, STATE OF NEW YORK. 1799 ute of frauds; and no annual rent being re- served, there is no construction on which he can be considered a tenant from year to year; but he must either be tenant at will, by force of the statute, or for a period certain, by Van Alen's assent to the lease; and, of course, ac- cording to the authorities cited, was not en- titled to notice. The jury have also properly determined that the second lease to M'Mechan, to wit, that for five years, was an unauthorized act on the part of Holland which Van Alen never had assented to or sanctioned. When, or from whom he received the information of it, does not appear; it was not, however, from Hol- 47*] land, but *from strangers; and, finding the rent was reserved to Holland, who was addicted to liquor, and, of course, that it would not benefit his children, he declared his disapprobation, and his intention to taking the property into his own hands. His death, which happened about nine months after the execution of the lease, most probably prevent- ed the effect of this intent. This lease, then, is certainly no bar to a recovery. I shall now proceed to show, as was inti- mated when the first point was under con- sideration, that, on the expiration of the first lease, M'Mechan, if not a tenant at will, stood in the relation of tenant at sufferance to Van Alen, and as such was not a disseizor.nor had he such a possession as would prevent the transmission of the inheritance. (1 Roll. Abr., 659, pi. 15.) "If lessee for j r ears holds over his term, yet he is no disseizor, for this, that he comes in by an act of the party; but he is tenant at sufferance." In Co. Litt., 57 b., and the case of Rous v. Artoix (2 Leo., 45), the same law will be found. That the possession of such a tenant is no impediment to the passing of the landlord's interest is established by the case of Poundy v. Bhwkman, before cited; as well as by the case of Willis v. Jermine (2 Leo., 97). A lease was there made to Jermine, rendering rent, and for default of payment to be void. The rent was afterwards demanded, but not paid, and the lessor, without entry, leased the lands to Willis, Jermine being in the actual possession, and it was held good, for that he was but ten- ant at sufferance; and Harris, the counsel for the defendant, agreed that if Jermine was but a tenant at sufferance, the second lease was good. The interest of a tenant at sufferance is of so little consideration in law, especially when set up against the rights of his landlord, that his descent will not toll an entry. (Allen v. Hill, Cro. Eliz., 238.) His possession and pernancy of the profits, is insufficient, where he sells the inheritance, to protect himself against a prosecution of maintenance. (Pike v. Hfixmn, 3 Leo., 233.) 4H*] *3. The arguments on the third point proceed rather on the ground of inconvenience than of law. The supposed imposition on purchasers, arising from Van Alen's permit- ting certain lessees under Holland to enjoy their tenancy during his life, would not be a sufficient reason for granting the effect of the present motion, were the facts as the defend- ant's counsel have stated them. It is incum- bent on every purchaser to look to the title of the property he acquires. In the present in- 238 stance, it could have been done without diffi- culty. Van Alen was in the neighborhood and from him the extent of Holland's powers might easily have been ascertained. But there was, in fact, no deception. M'Mechau, before he accepted the first lease, was in- formed that Holland had no title, and that Van Alen, most probably, would give him none; he replied that it was all in the same family, and that Holland must make good his dam- ages, if he sustained any. Ely, previous to his acceptance of the lease for 999 years, ap- plied to Van Alen to execute it, who refused; but told him he might take it from Holland, and that he would never himself disturb him. Where, then, is the deception? The plain and obvious meaning was this: Holland's acts which I now sanction, must terminate with my life. Of the sublease from Ely to Spencer & Ludlow, for the hay -scales, and the several permissions to occupy the barn and barn- yard, Van Alen, for aught that appears, was ignorant. Had it been otherwise, it would not alter the case. 4. The fourth ground of the application is, that the plaintiff has laid his demise two years previous to the commencement of the suit, which determined his lessor's election: hence it is inferred, if I understand the scope of the argument, that the demise is laid before the title accrued. Were this inference just it would be decisive against the plaintiff in this action, and the case relied on, of Goodtitle v. Herbert (4 Term Rep., 680), would be in point. If I am accurate, as to the train of reasoning, the effect of an election has certainly been misunderstood. It has no relation to the title, but to the remedy alone. " When *the [*41> easy specific remedy was by assize," says Lord Mansfield, in the case of 'Taylor, ex dem. Atkyns, v. Horde, " where the entry was not taken away, the injured owner might, for his benefit, elect to consider the wrong as a dis- seisin. So, since an ejectment has become the easy specific remedy, he may elect to call the wrong a dispossession." And again, he ob- serves, " where an ejectment is brought there can be no disseisin; because the plaintiff may lay his demise when his title accrued, and re- cover the profits from the time of the demise." This is precisely the case before us. 5. The objections to the charge of the judge remain to be considered. And here it will be observed, by recurring to the motion for a nonsuit, made at the trial, that the defendant's counsel then contended that Holland was either tenant from year to year, or a disseisor; and it was not until the concluding argument on the present motion that they abandoned this ground, disclaiming to derive a title throxigh him, and asserting that he never was possessed. The assumption of this new posi- tion has induced an observation from one of the counsel, that the charge respecting Hol- land's interest was immaterial; from another, that it was improper, as it was a question of law; and from a third, that it should have been peremptory on the point of Van Alen's acquiescence and consequent disseisin; and that the motion for a nonsuit should, on this ground, have been successful. I have already shown from various authori- ties, that Van Alen was neither disseized act- JOHN SON'S CASES, 1. 1799 JOHNSON v. BLOODGOOD. 49 nally, nor by election. To have granted a nonsuit, therefore, on that ground, or to have charged the jury with a fact that did not exist, would have been erroneous in the ex- treme. The reference of Holland's interest to the jury was right upon every principle. Whether he was or was not a disseizor, is not, as has been mistakenly supposed, a question of law, but of fact. Disseisin, says Lord Mansfield, in the case last cited, is a fact to be 5O*] found by a jury. The idea of *Holland's being a mere agent or attorney for his father- in-law, was first suggested by me in overrul- ing the motion for a nonsuit; and, in the course of the trial, was substantiated by an authority produced by the plaintiff's counsel. It was controverted by the defendant, who in- sisted that Holland, if not a disseizor, had an interest which entitled him to notice; and that M'Mechan stood in his place by virtue of the lease for five years, which was produced in evidence. In this view his interest became a material object of the charge; and when it is remembered that it was derived, if it existed at all, from a parol agreement, the terms of which were to be collected from the testimony of the witnesses, it was most indisputably a fact on which the jury alone were competent to decide. It was also proper to be submitted to them for another reason. If he had no in- terest his lease could not make him a disseizor (a point strongly contended for on the part of the defendant), and he would not stand in the relation of a tenant; if he had an interest and it was at will only, his lease did not make him a disseizor, but at the election of Van Alen. Fearing that the jury might be misled by the perplexity and embarrassment which so intri- cate a subject could not fail to produce, I placed it before them in the simplest form in my power. It was also insisted that I ought to have charged the jury that there was sufficient evi- dence of Van Alen's having authorised or ap- proved of the second lease to M'Mechan. This objection is a little singular, since the ground of any authority was not relied on at the trial; it may, nevertheless, be open to investigation. I dt) not know that it is the duty of a judge peremptorily to decide on the weight of testi- mony where there is room to doubt; this is peculiarly the province of a jury. The judge may, and perhaps ought, to lay down to them the rules of investigation; but the cases which will justify his directing their determination are extremely rare in controverted causes. This was not a case of that description ; on the 51*] contrary, *the acquiescence, if any, was a matter of inference, and for their exclusive inquiry and decision. Under whatever aspect I view this cause and I have endeavoured to examine it in every light of which it is susceptible, on account of the important principles it involves I am satisfied with the verdict, and that the de- fendant ought to take nothing by his mo- tion. LANSING, Ch. J., declared himself to be of the same opinion. RADCLIFP, J., having been concerned as JOHNSON'S CASES, 1. counsel for the plaintiff, declined giving any opinion. Rule refused. Cited in 2 Johns., 76; 13 Johns., 121; 7 Cow., 248; 2 Wend., 204 ; 49 X. Y., 32. See 2 Caine's Cas., 314. JOHNSON v. BLOODGOOD. 1. Negotiable Instruments Indorsement after maturity Equities. 2. Id. Id. Fraud. 3. Id. Matured Note Equities. 4. Set-off As- signment Purchase of Note. 5. Id. Id. Notice. J., being: insolvent, assigned his property to trus- tees, on the 16th January, 1793, for the benefit of his creditors; a debt due from B. was included in the assignment, and in an action brought by the assign- ees against B., he offered as a set-off, a note of J,, which he stated to have been purchased in the year 1793, after it was due; and it was held that the note was to be presumed to have been purchased after the assignment, and could not be set off against the debt due to the insolvent. Every presumption is to be made against the purchaser of a note after it is due. Citations 3 Tei-m R., 80 ; 3 TernTR., 83. 2 Black. Rep., 1269; 1 Term R., 69; 3 Term It., 82, 83; 4 Term R., 341 ; 7 Term R., 670 ; 1 Atk., 490 ; 2 Fonb., 156 : 6 Term R., 59 ; 22 Geo. III.; 25 Geo. III.; 1 H. Black., 89 ?i ; 3 Term R., 80 ; 14 Geo. III.; 10 Mod., 37. THIS was an action for goods sold and de- livered. The defendant pleaded non as- (fumpsit, and payment. Under the second plea, the defendant gave notice that he would set off a negotiable note, made on the 1st August, 1792, by the plaintiff to one Sullivan, for $3,106, and indorsed to the defendant, payable in four months after date. On the trial before Mr. Justice Kent, it appeared in evidence that the plaintiff being insolvent, on the 16th January, 1793, made an assignment of all debts due to him, to R. Knox and others, as trustees for the benefit of all his creditors; that the plaintiff's account was presented to the defendant in April, 1797, stated in the names of the assignees, and pay- ment demanded, to which he replied that there was no objection to the account, but he wanted time to pay it, and mentioned also that he had a note to set off against it. NOTE. Holders of negotiabU paper transferred after maturity. No one can become a bona fld-e holder of negotia- ble paper so as to shut out a valid defense by the maker when such holder takes the note after it is overdue. Newell v. Gregg, 51 Barb., 263; Lansing v. Gaine, 2 Johns., 300; Sylvester v. Crapo, 15 Pick., 92; Fowler v. Brantley, 14 Pet., 319; Andrews v. Pond, 13 Pet., 65; Marsh v. Marshall, 53 Pa. St., 396; Bowen v. Thrall, 28 Vt., 382; Bank v. Hann, 18 N. J. L. (3 Harr.), 222 ; Lord v. Favorite, 29 111., 149 ; Good- son v. Johnson, 35 Tex., 622. A note assigned on the day of payment, is assigned before it has become due. Walter v. Kirk, 14 111., 55. A promissory note is not overdue until the days of grace have expired. G ood paster v. Voris, 8 la., 334. A note indorsed on the last day of grace is dis- honored. Pine v. Smith, 11 Gray, 38. Contra. Crosby y. Grant, 38 N." H., 273. The New Hampshire decision is deemed the better law. 1 Daniels on Negotiable Instruments, 593 ; 1 Parsons on Notes and Bills, 263. A note payable in Installments is overdue when the first installment is overdue and unpaid. Vinton y. King, 4 Allen, 562. So when by express terms interest is overdue and unpaid. Newell v. Gregg, 51 Barb., 263; Hart v. Sticknoy, 41 Wis., 630. A note payable to order wiis transferred verbally 239 51 SUPREME COUKT, STATE OF NEW YORK. 1799 In an answer to a bill filed against the de- 1 fendant in chancery, he stated that he pur- [ 52*] chased the note in question, *sometime j in the year 1793 (the month unknown), at the j rate of twelve shillings in the pound, and for ' the purpose of setting it off against the pres- ent demand. The defendant, however, denied in his answer that he had any actual notice of the assignment made by the plaintiff to the trustees above mentioned, at or before the time of making the purchase. Under the circumstances of the case, the judge, at the trial, was of opinion that the set-off ought not to be admitted, and it was accordingly disallowed. The defendant applied for a new trial on the ground of the misdirection of the judge on this point. Mr. Riggs for the plaintiff. Mr. Henry for the defendant. RADCLIFF, J. From the state of the case I think it a fair presumption that the note was purchased by the defendant after the assign- ment by the plaintiff to the trustees. The as- signment was made on the 16th of January, 1793. The defendant, in his answer to the bill in chancery, states generally that he pur- chased the note in the year 1793, without pointing to any particular period of that year, but saying " the month was unknown." It is more than probable, if the purchase had pre- ceded the assignment, or if the defendant had any real doubt of that fact, that he would have stated particularly his knowledge or doubt re- specting it. His answer to this point was evasive, and connected with the other circum- stances, justifies a presumption against him. I consider it as a principle settled both in England and by our own practice, that in cases like the present a court of law (2 Bl. Rep. 1269; 1 Term Rep. 619; 3 Term Rep. 82; 4 Term, 341 ; 7 Term, 670) will regard the as- signment of a chose in action, and protect the interest of a cent in que trust against every per- son having notice of the trust, or Who is bound to take notice of it. If, therefore, the defendant, at the time of obtaining the note, had notice, or was bound to take notice of the trust created by the assignment, he ought not to be permitted to avail himself of the set-off. *The notice by which parties are [*53 affected, is either express or implied; under the head of implied notice, it has long been held in a court of equity (1 Atk. 490; 2 Fonbl. 156) " that whatever is sufficient to put a party upon inquiry, is good notice." This is a just and salutary rule, calculated to preserve good faith, and to protect the rights of individuals, and whenever the question of notice occurs, must be equally applicable to courts of law as to courts of equity. It has in fact been adopted by courts of law, and in cases similar to the present. The defence here rests on a note purchased after it had become due. This circumstance alone is a ground of suspicion, and has been held sufficient to make it incum- bent on the party receiving the note to inquire and satisfy himself that it is good. If he does not, he takes it at his peril, subject to every equitable defence in favour of the antecedent parties against whom he may attempt to en- force it, The present case is still stronger; the defendant not only purchased the note, when overdue, but at* a great discount, and avowedly for the purpose of setting it off against the present demand. The consideration of the purchase and the object in view, strongly characterize this trans- action. The defendant knew the note was dishonored; and the circumstance of obtain- ing it, at so great an undervalue, shows that he also knew that Johnson was incompetent to pay. He must have considered him a bank- rupt, and he ought also to have considered that his creditors had an interest in his debts and property. He had even reason to presume that the property of this bankrupt was, in some way or other, disposed of for the benefit of bis creditors ; at least the circumstances which appeared were sufficient to put him on his guard, and to require him to forbear from a speculation questionable in itself, and which, if successful, might prove injurious to the creditors of Johnson. I therefore think that in construction of law, there was sufficient notice to protect the claims of bona, fde credi- and delivered before dishonor, for a valuable con- sideration, but was not indorsed until after dis- honor. Held, that the maker could not set off a debt due him from the payee. Ranger v. Gary, 1 Met. (Mass.). 369. But see Bank v. Taylor, 100 Mass., 18 ; Whistler v. Forster, 14 C. B. N. S., 248 ; Clark v. Whitaker, 50 N. H., 474. The burden of proof is on the maker to show that the note was negotiated after it was due. Ranker v. Carv above cited ; Balch v. Onion, 4 Gush., 559; Noxon v. De Wolf, 10 Gray, 343 ; Pinkerton v. Bailey, 8 Wend., 600 ; Washbum v. Ramsdell, 17 Vt., 299 ; , Shirts v. Overjohn, 60 Mo., 305. The burden is also on the maker to show that pay- ments relied upon were made before transfer. ! Webster v. Lee, o Mass., 334 ; Wilbour v. Turner, 5 Pick., 526. See also Baxter v. Little, 6 Met. (Mass.), 7. Where a note is transferred after maturity, it is taken subject only to the defenses existing against it in the hands of the holder when it matured. Brit- ton v. Hall, 1 Hilt. (N. Y.), 528; citing Williams v. Matthews, 3 Cowen, 260; Driggs v. Rockwell, 11 Wend., 505 ; Andrews v. Pond, 13 Pet., 79. The maker and indoreer of a note made payable to his own order, is entitled to the same defense I as^ainst a holder who receives it after it is overdue, that he would be allowed to make if the note had been made payable to a third person. Potter v. Tyler, 2 Met. (Mass.), 58. In an action on a hote indorsed after dishonor, : 240 hona fide for valuable consideration, the maker cannot net off a claim against the indorser. Chandler v. Drew, 6 N. H., 469; McDuffle v. Dame, 11 N. H., 244; Ordiorne v. Woodman, 39 N. H., 541. The bur- den of proof is on the indorsee to show that he took the note bona fide for valuable consideration. Cases last cited. The above cases seem to turn on the distinction between "set off" and "defense." See Hill v. Huntress, 43 N. H., 483. To substantially the same effect, see Wilkinson v. Jeffers, 30 Ga., 153. The following, both in principle and authority is deemed the best general rule on this subject. An indorsee of an overdue bill or note takes it sub- ject to all the equities arising out of the bill or note transaction itself, but not subject to any col- lateral claim existing between the earlier parties to it. Whitehead v. Walker, 10 M. & W.. 696, 7 Jur. 330 ; Burrough v. Moss., 10 B. & C., 558 ; 5 M. & R., 296; Swan ex porte, 6 L. R. Eq., 343 ; 16 W. R., 560, 18 L. T. N. S., 230 ; Quids v. Harrison, 10 Exch., 572. Bank v. Hann, 3 Harr. (N. J. L.), 222. Hughes v. Large, 2 Pa. St., 103; Lang v. Rhaum, 75 Pa. St., 128; Young v. Shriner, 80 Pa. St., 463; Steward v. Tizzard, 3 Phila., 362 : Richards v. Daly, 34 la., 427. See also Britton v. Bishop, 11 Vt., 70; Pecker v. Sawyer, 24 Vt., 459; Paddock v. Jones, 40 Vt., 474. The above doctrine is not, however, supported by all American authorities. Bissell v. Curran, 69 111., 20 ; Bond v. Fitzpatriek, 4 Gray, 89. See Driggs v. Rockwell, 11 Wend., 504. JOHNSON'S CASES, 1. 1799 JOHNSON v. BI.OODGOOD. 53 tors. The object of the defendant was clearly a, speculation at the expense of some one; an 54*] experiment to get rid of an *honest debt by means of bad paper, without paying an equivalent; such an attempt ought not to be encouraged, to the injury of third persons. The decision of this case will not affect the negotiability of promissory notes for all the purposes contemplated by the statute, made in their favor. The intent of that statute was not to give currency to notes already dishon- oured, nor to open a door for speculations of this sort, but io promote the convenience of trade, by a free circulation of creditable paper, as a substitute for money, and by pro- viding a remedy for the holder of such paper in his own name. It does not follow that a note when overdue is deprived of its nego- tiable quality. I think it may still be nego- tiated, and prosecuted in the name of the holder, but subject to every equitable defence by the antecedent parties, and all other per- sons who may be affected by it. / am of the opinion, therefore, that the note in qmstion was properly excluded. KENT, J. This appears from the judge's report to be a suit brought for the benefit of the creditors of the plaintiff. His name is used merely to satisfy the form of law. The suit is substantially between the creditors of Johnson and the defendant, and it is now well understood that courts of law will take notice of assignments and trusts, and consider who are beneficially interested, and will protect the tt&tui que trust. In giving my opinion, I mean to question the law, that a bill or note may be negotiated after it is due, and be declared upon as such. (1 Ld. Raym, 175.) But I approve of the doc- trine, and adopt it as salutary and calculated to prevent fraud, as laid down in the cases of Brown & Daris (3 Term, 80) and Taylor & Mather (3 Term, 83), that if a bill or note be indorsed after it becomes due, it throws a sus- picion on the transaction, and the indorsee must take it, subject to all the equity that ex- isted in favor of the maker of the note before it was indorsed; and that if there be any .attendant circumstances of fraud, the indorsee shall have every presumption turned against him. So, in the present case, the defendant stating generally that he purchased the note 55*] in the year 1793, it *shall be presumed that he purchased it after the 16th of January, 1793, the date of the assignment of the insol- vent's estate. When a note is offered for sale after it be- comes due, and at a discount, what is the necessary inference? Most certainly that the maker is insolvent, and if so, his effects and credits ought immediately to enure to the benefit of his creditors, and be regarded only as their trustee. The presumption will be, for so indeed justice would dictate, that the in- solvent makes, forwith, a full and frank dis- closure and assignment of all his property for the payment of his debts. And if the insol- vent do, in fact, make such an assignment, the purchaser of the note in such a case, after the assignment at a depreciated rate for the purpose of a set off, though he may not in fact know of the assignment, yet he is properly chargeable with having acted under an im- plied notice of the assignment. The law in- fers the notice, being what is termed construc- tive notice (2 Fonb. 155); he accordingly com- mits a fraud upon his creditors; he does an act mala fide; and as Lord Kenyon observed in a case not very unlike the present, "It would be very unjust indeed if one person, who hap- pens to be indebted to another at the time of the bankruptcy of the latter, were permitted, by any intrigue between himself and a third person, so to change his situation as to diminish, or totally to destroy the debt due to the bankrupt by an act ex post facto." (6 Term, 59.) I accordingly continue in the opinion that was given at the trial, that the note purchased by the defendant was inadmissible evidence under the plea of payment, and that the de- fendant must take nothing by his motion. BENSON, J. , declared himself to be of the the same opinion. LEWIS, J. That choses in action are not assignable, is a very ancient rule of the com- mon law. The many inconveniences resulting from a rigid adherence to this rule, which must have been sensibly felt previous to the introduction of the equity jurisdiction of the Court of Chancery, induced the common law courts, at an *early period, to give effect to such [*56 transfers, by considering them in the nature of declarations of trust; the sanctity of legal forms not being thereby violated as the assignee prose- cuted in the name of the assignor, by virtue of a power contained in the instrument of assign- ment. This remedy proved, however, in many cases, a very inadequate one ; the equitable or beneficial rights of the cestui que trust not be- ing noticed, were ever liable to be defeated by the act of the trustee, or impaired by his debts. When the equity jurisdiction of the chancery became, by the invention of uses, completely established, it soon assumed the almost ex- clusive cognizance of frauds, accidents and trusts. To make this remedy complete, the party was, therefore, in such cases, obliged to resort to that court; the delay and expense of which induced the common law courts to ex- tend the remedy, by further relaxations, until finally they left the exclusive jurisdiction of a court of equity little more than mere technical trusts. The reform, however, has been gradual and cautious, and extended not beyond a re- fusal to support a payment made to the as- signor, after notice to the debtor of the assign- ment of the debt, until the 19th of Geo. III. , a period at which the obligatory force of English adjudications had ceased to operate in this country. Satisfied, however, with the princi- ples of subsequent cases, I am content to go as far as they have gone, but am not prepared to go one step beyond them. It becomes, then, of importance to inquire how far the English courts have gone in noticing equities and trusts, and whether they have done it in any instance to the prejudice of a perfect right vested in a third person. I shall consider, in the order of time, such cases as I have met with, beginning with that of Fenner and Meares (2 Black, 1269), which, JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. 16 241 SOPRKME COURT, STATE OP NEW YORK. 179S> though not precisely in point, since it was there determined that the legal right as well as the beneficial interest was in the plaintiff, still looks towards it. Meares had borrowed money of Cox, on respondents, and by indorsement on the bond, declared it was not subject to set- off, and that he would pay the principal and 57*] interest without *deduction or abate- ment, to whomsoever it should be assigned by the obligee. An assignment was made for valuable consideration to the plaintiff, who brought assumpsit for money had and received; and the court determined that it was main- tainable by force of the indorsement; though it was admitted, that had the suit been brought in the name of Cox, the defendant might have pleaded a set-off. The next case is that of Bottomly v. Brooke, (22 Geo. III.), the decision in which was, that where A gave a bond to B in trust for C, and at C's request, A might, to an action of debt brought on this bond in the name of B, plead the special matter, and set off a demand against C. The case of Rudge v. Birch (25 Geo. III.) was precisely similar to the preceding. In Webster v. Scales the only point decided was, that what a bankrupt holds as a trustee, is not assignable by the commissioners, the statute empowering them to assign those things only which are for the benefit of the bank- rupt. The three cases last mentioned are cited in Winch & Keeley (1 Term, 619), in which the only question was, whether the defendant should pay a balance of an account to the plaintiff for the use of his assignee, or to his assignees under a subsequent commission of bankruptcy. The court determined it was not assignable under the commission, within the terms of the statute of James, and that the plaintiff of course should recover. Of all these cases, not one goes so far as to notice the beneficial interest of a cestui que trunt to the prejudice of a perfect right vested in a third person, a consequence unavoidable in the present case, if the decision at nisi prius be supported. Their utmost extent is that in an action by a trustee against a creditor of a cestui que trust, the defendant may plead the special matter, and set off the demand against the person having the beneficial interest in the suit. (See 4 Term.) But no case, I am per- suaded, can be adduced, in which it has been 58*] permitted to a trustee plaintiff to *pre- clude a defendant from a set-off, by alleging that he prosecutes for the benefit of another, when such defendant was ignorant of the trust at the time of giving the credit; for his debt to the trustee may have been the sole in- ducement to the credit, and have led him to purchase his paper, when perhaps no other person would. Legal decisions, on commercial questions particularly, should ever be founded on the broad basis of general principle, and there is no better test of the soundness of such princi- ple than its applicability to every similar case. The decision at nin pritis will be found to be, that a defendant shall in no case set off where the plaintiff prosecutes for the benefit of cred- itors; for the particular circumstances of this case, when examined, can have no influence. 242 To purchase a note in the market for less than its nominal value, is neither usurious nor fraudulent; for its nominal may not be its real value. To purchase it either for the purpose of compelling payment from the maker, or of paying him a debt with it by way of set-off, is a perfectly fair negotiation, and not against any law of civil or moral obligation. Stripped of these two circumstances, it stands barely on the principle above stated. Now, if this prin- ciple be a sound one, it will apply with equal force to the payee as to the indorsee of a note, nor can it vary the case whichever of the debts be first contracted. If Johnson, then, had given Sullivan his note, and before it became due Sullivan had sold property to Johnson, who afterwards assigned his debts for the ben- efit of his creditors, Sullivan could not set off such note in a suit brought against him by Johnson for their benefit, even though the possession of the note had been the sole in- ducement of the sale. This is a doctrine which neither law nor equity will be found to war- rant. It will apply as well to the case of an assignment for the benefit of a particular credit- or, as to an assignment to one for the benefit of all the creditors, and thus put it in the power of a debtor to compel one creditor to pay the other, or a number of creditors to con- tribute to the payment of one whom he may choose to prefer. Executors and *ad- [*5& ministrators, also, will be embraced by the rule, for they represent their principals, and are trustees for their creditors. Nor will the generality of the assignment, it being for the benefit of all the creditors of the plaintiff, vary the case, unless it can be shown that a court of common law has the power to declare that on every such voluntary assignment creditors shall be compelled to waive all advantages, and to receive their dividends paripassu. A circumstance of no little weight on the present occasion is, that the set-off was not in- consistent with the nature of, the trust. The assignment was for the benefit of the credit- ors, and the defendant was a creditor, and having a lien, too, or security which could not be taken from him. On the whole, if the note in question was the note of Johnson which had not been discharged, his liability to pay it would exist, notwithstanding the assignment of his property, and if a suit would lie on it, I can- not see why it might not be pleaded as pay- ment, and being a negotiable paper, why the indorser should not be entiled to all the ad- vantages of the original payee. But it was in- sisted that its negotiability was at an end, as it had been purchased when it was overdue, and the case of Beckv. Robley(\ II. Black, 89, n), and Brawn v. Daris (3 Term Kep. , 80) were re- lied on. The first of these cases, which is sub- joined in a note to the case of Bacon v. Searlest, has so many suspicious circumstances about it, and is so subversive of principle, that I do not think it much to be relied on. It is cited as of Trinity Term, 14 Geo. III., and is di- rectly the reverse of the decision in Lmiviere v. iMubray (10 Mod., 37), nor is it to be found in any reporter of that time. The last circum- stance is the more extraordinary, as, if truly cited, it is an important and leading case. The amount of it is, that if a bill after acceptance and nonpayment comes back to the hands of JOHNSON'S CASES, 1. 1799 JOHNSON v. BLOODGOOD. 59 the drawer, it ceases to be a bill, so that an ac- tion cannot be sustained on it against the ac- ceptor. If this be true, then the resemblance between the acceptor of a bill and the maker of a note, and the drawer of a bill and the in- CJO*] dorser of a note is destroyed, *where the similarity of feature is supposed to be strongest; for the maker of the note is the per- son responsible in the last resort, and the ac- ceptor of the bill will not be so. The indorser of a note who takes it up, can maintain an action against the maker, but the drawer of a bill under like circumstances, will not be able to sustain an action against the acceptor. The well established maxim, also, that an accept- ance by a drawer of is prima facie evidence of his holding property of the drawer's to the amount of the bill, will be shaken. But give the authority its greatest latitude, it cannot reach the present case, for though the note may have lost its negotiability, it certainly is still a note, for which the maker is liable, un- less it shall appear to have been discharged. The case of Brown v. Davis is not more ap- plicable than that of Beck v. Robley. The ex- tent of it is, that the indorsee of a note over- due shall stand in the place of the original payee, and be subject to all the disadvantages of his situation; such as the defendant being permitted to show that the note was paid, which was the ground of defence in that case, or that it was made on an illegal consideration, as in the case of Banks v. Colwell there cited. In the principal case, Mr. Justice Buller, speaking of a note overdue, makes this em- phatic observation, "I do not say, that by law it is not negotiable." And again, in the case of Taylor v. Matlier (3 Term Rep., 83, n.), in a note subjoined, he says, that "it has never been determined that a bill or note is not ne- gotiable after it becomes due." A further remark, which has great weight with me, is that all the decisions on this sub- ' ject are in favor of defendants, and none in i favor of trustee plaintiffs ; and with good ; reason, because, in the former case, the strict j rules of law are made to yield to substantial justice, without fraud or collusion; for the plaintiff may put the fact of a trust in issue, j and the defendant, if he cannot substantiate j his plea, must fail. But in the latter case, j fraudulent and collusive assignments may be set up, whenever a man wishes to avoid the C> 1*] payment of his ju^t *debts, and a defend- ant be thereby precluded from a set-off, how- ever righteous may be his demand. Some observations were made, in the course of the argument, against granting the effect of the present motion, on the suspicious appear- ance of the indorsement on the note, which were, in my opinion, irrelevant, as the note was not in evidence. For, notwithstanding their force, and the effect they would probably have produced on the mind of the jury, they were questions exclusively for their decision. The consequence of a right decision on this question having appeared to me important, I have examined it with more attention, and have not a doubt that a new trial ought to be awarded. LANSING, Ch. J. To determine whether the note ought to have been received, it is requisite JOHNSON'S CASES, 1. to examine. 1st. The effect of the indorsement of the note after it became due; 2d. Whether the assignment made by the note plaintiff varried the relative situation which existed between the plaintiff and the defend- ant. It seems to be settled in the English courts, that the indorsement of a note after it becomes due shall not exempt the holder from any dis- ability which the payee as intermediate in- dorser would be exposed to, if it had remained in the hands of either. The indorsee after it is overdue takes it at his own risk, and relies not solely but principally on the credit of the indorser from whom he receives it; for the in- dorser retains a right of resorting to the maker or prior indorsers with the like effect, as he might have done before the note became due, as long as they cannot avail themselves of some legal ground of discharge, arising from the transactions between the parties prior to the last indorsement This I take to be the extent of the doctrine assumed by the English courts, and it is such as appears to me to be well warranted by the soundest legal princi- ples, applied to the nature of negotiable paper. *Judge Buller, who laid down the [*62 broadest principles of any of the judges who gave an opinion in the case of Brmon v. Dams, observes, "that if a note is overdue, though he does not say it is not negotiable, yet it is out of the common course of dealing, and does give rise to suspicion. Still stronger ought that suspicion to be when it appears from the face of the note to have been noted for non- payment." Upon this ground it was that in another case tried before him he said, "that the defendant, who was the maker, was en- titled to set up the same defence that he might have done against the original payee. A fair indorser can never be injured by this rule, for if the transaction be a fair one, he will still be entitled to recover." In the case of Taylor v. Mather (3 Term, 83), the note was indorsed after it was due, and there were many circumstances which led the court and jury to conclude that it was fraud- ulently obtained: whereupon a verdict was found for the defendant. Upon a motion for a new trial, it was refused on the merits, and Mr. Justice Buller said, "it never has been de- termined that a bill or note is not negotiable after it becomes due; but if there are any cir- cumstances of fraud in the transaction, and it comes to the hands of a plaintiff by indorse- ment after it is due, I have always left it to the jury, upon the slightest circumstances, to presume the indorsee was acquainted with the fraud." I know of no cases which have shaken these principles, and they appear to me fully to make out that the negotiable quality of the note is preserved, though it is overdue; but with less advantage to the holder than it would have possessed had he acquired it before it became due. The consideration of the second point would be of consequence, if it necessarily led the court into the inquiry whether they could, on sound legal reasoning, adopt the latitude of construction assumed by the English courts, after our revolution, against the common law principle, that a chose in action is not assign- 243 SUPREME COURT, STATE OF NEW YORK. 1799 able. This, however, seems to beone of those 63*] cases which, if tested by the *whole course of the English adjudications, would not be materially affected by them. The case of Winch v. Keely (1 Term, 619), has been cited, as somewhat analogous to the present case; but that was determined on the construction of the bankrupt laws; it was de- cided on the ground that the debt assigned by the bankrupt, prior to the bankruptcy, was held by him as trustee, and so did not pass under the commission ; and Mr. Justice Ash- hurst remarks, that it would be productive of great expense to send the parties to the other end of the hall; and whenever the court have seen that the justice of the case is clearly with the plaintiff, they have not turned him round. The justice of this case does not appear to me to be clearly with the plaintiff. Set-offs are productive *of the most beneficial and equita- ble effects. They tend to prevent a multi- plicity of suits; they adjust the adverse claims of the contending parties, and yield the bal- ance to the prevailing one ; thus affording substantial justice to both, without permitting the forms of law to prevent it. It is a matter of no moment here how the right of set-off was acquired, if it was bonafide. By suffering the doctrine of beneficial trusts to be introduced to the extent contended for; and particularly by applying it to the cases of mutual dealings, it appears to me that great inconveniences would result, and new rules ought perhaps to be devised to prevent them; for, if a plaintiff can, by the assignment of a chose in action, acquire a beneficial interest, capable of being enforced in a court of com- mon law, the defendant must possess a similar power. If, then, a plaintiff brings a suit on a demand for which he is entitled to recover, and the defendant, instead of depending upon a set-off originating from mutual dealings be- tween them, may resort to a creditor of the plaintiff, obtain an assignment from him, and plead it by way of set-off, the court, instead of settling the actual dealings subsisting be- tween the parties to the suit, may be involved in all the intricacies of controversies between others not appearing as parties. This is now <>4*] the *case, in a limited degree, as far as respects negotiable paper; but from the prin- ciples which govern cases of that kind, many objects of controversy are avoided which must inevitably be connected with other transac- tions. This is one of the inconveniences that occurs to me on the occasion ; others, I am apprehensive, would be presented in practice. I am inclined to think that there are no cases prior to our revolution which carry the doc- trine of trusts farther, as cognizable in courts of law, than to the cases where the trust was coeval with the debt. That the note was, in this instance, indorsed when it was overdue ; that it was purchased at an undervalue, are circumstances which can- not, in any event, legally affect the defendant's right, as it is not ascertained whether he ob- tained the note before or after the assignment by the plaintiff to his creditors. The purchase is stated to have been made sometime in the year 1793, and the assignment on the 16th Jan- dary in the same year. If the defendant acquired the note previous 244 to the assignment, I suppose no doubt can ex- ist that he ought to have the benefit of it as a set-off. If he acquired it afterwards, I have given my reasons why I doubt the right of the plaintiff to preclude him from it. Upon the whole, I am of opinion that the note ought to have been given in evidence to the jury, and that, on that ground, a new trial ought to be awarded. Rule refused. Distinguished 14 Abb., 117 ; 1 Daly, 294. Cited in 5 Johns., 194; 12 Johns., 945; 13 Johns., 22 ; 19 Johns., 52, 97 ; 1 Cow., 398 ; 5 Wend., 601 ; 6 Hill, 239 ; 3 How. Pr., 388 ; 2 Duer, 643 ; 2 Code Rep., 5. See 2 Caines' Cos., 303. *BETTS v. TURNER. [*65 1. Covenant Performance. 2. To pay Another's Debt after Legal Proceedings taken. T. sold to B. a promissory note, made by C. pay- able to H. or order, to be collected by B. at his own risk, and costs, as it respected the ability of the maker and payee, and T. covenanted "to pay to B. $2,000, when required, in case B. should take all and every legal step to prosecute to effect the maker and payee, to wit: if B. nor no one in his name, nor in the name of the payee, could not recover judg- ment legally against the maker, on the said note, or against the payee, in case he had discharged the note at the tune of making the said covenant, pre- vious to the bringing of a suit against the maker." The maker resided in the State of Massachusetts, and B. brought a suit in the Court of Common Pleas, in that State, in the name of the payee, ac- cording to the law of that State, where notes were not negotiable, and the payee appeared in court, and disavowed any authority from him to bring the suit, in consequence of which the suit was dismissed. The note was .not indorsed by the payee. In an action of covenant brought by B. against T., it was held that the parties, having in view the law of Mas- sachusetts, where the note was made, B. had used every legal endeavor to recover the money, within the meaning of the covenant, and having railed to recover the amount, T. was liable to pay to him the 82,000, according to his covenant, without B.'s hav- ing first attempted by suit to recover the amount of the note from the payee. Citations in Dissenting Opinion 2 Stra., 763; 5 Co.. 22 b. ; Cro. Eliz., 7, 916 ; T. Raym., 464 ; 1 Sid., 48,151; 5 Co.. 22 b. THIS was an action of covenant. The plaintiff declared that by a certain deed, bearing date the 15th June, 1797, it was re- cited that one John Baker, on the 17th Octo- ber, 1795, made a promissory note for the sum of $833.33, payable the 1st April, 1797, to William Hooker, or order; that the defendant was possessed of the said note, and had sold the same to the plaintiff, to be collected by him, " at his own risk, and costs, as it respect- ed the ability of the said Baker and Hooker." The defendant thereby covenanted " to pay to the plaintiff $2,000, when thereto afterwards required, in case the plaintiff should take all and every legal step to prosecute to effect the said Baker and Hooker, to wit: if the plaintiff, or any other person in his name, or in the name of Hooker, could not legally recover judgment against the said Baker on the said note, or against the said Hooker, in case the said Hooker had, at the time of making the said covenant, discharged the said note, or should discharge the same, previous to the bringing a suit against the said Baker." The declaration JOHNSON'S CASES, 1. 1799 BETTS v. TURNER 65 further stated that Baker, at the time of mak- ing the covenant, and ever since, resided in the County of Hampshire, in the State of Massa- chusetts; that on the 21st July, 1797, the plaintiff instituted a suit on the note, in the name of Hooker, against Baker, in the Court of Common Pleas, in the said County of Hampshire, according to the legal mode of proceeding in that State ; that the process was returned duly served, but that at the return thereof Hooker appeared in the said court, and disavowed any authority from him to bring 66*] the suit,"upon which disavowal *the suit was dismissed by the court. The plaintiff then averred that he had taken every legal step to prosecute Baker to effect on the note, and that he had no legal remedy to sue and prosecute upon the note in his own name, either against Baker or Hooker, and that the note was never indorsed or assigned by Hook- er, the payee, to any person, so as to enable any other person than Hooker to maintain a suit in his own name against Baker; and the plaintiff further averred that Hooker had not, at the time of making the covenant, nor before the commencement of the suit in Massachu- setts, discharged the note. He then alleged notice of the premises to the defendant, and a demand of the $2,000, covenanted to be paid, and that the defendant refused, &c. The defendant pleaded two pleas; the first, having been relinquished on the. argument, need not be stated. The second was to the following effect : that Baker and Hooker lived in the State of Massachusetts at the time of making the note ; that the note, for valuable considerations, had been sold and delivered by Hooker to one Cole, and by him to one Booth, and by Booth to the defendant, and by him to the plaintiff, and that it never was sold to any other person; that by the law of Massachu- setts, such a note was not negotiable, but a bona fide holder might commence a suit upon it in the name of the payee against the maker, and if the payee should release the suit, or j discharge the note, he would be liable to pay I the holder of the note. He then averred that the plaintiff had not prosecuted Hooker, nor attempted to recover the amount of the note against him, and that he might have done this j by the law of Massachusetts, and which, he insisted, was a previous condition of the cov- enant, in order to entitle him to an action against the defendant. There was a general demurrer to both pleas, and a joinder in demurrer. Mr. Spencer for the plaintiff. Mr. Frafser for the defendant. 67*] *RADCI,IFF, J. The covenant on which this action is founded, is expressed in terms so obscure that without an attentive ex- amination it may be difficult to discover the real intent of the parties. This embarrassment is increased by the circumstance that the cov- enant relates to a contract made in Massachu- setts, and subject to the laws of that State. By the recital in the deed containing the cov- enant, it appears that the plaintiff purchased the note from the defendant for a valuable consideration, and if we were to collect the terms of the purchase from the recital only, it JOHNSON'S CASES, 1. would seem that the plaintiff took the note wholly at his own risk, as it respected the ability of Baker and Hooker. In this limited view of the contract, I admit, it would be in- cumbent on the plaintiff to show that he had attempted to recover against both and had failed. Such attempts against both would be conditions precedent to his right of recovery in this action, and ought to be strictly per- formed. But though the recital might justify this construction, and though it be also true that agreements thus recited in themselves often amount to distinct covenants, and are considered as such; yet, when they are merely introductory to subsequent stipulations in the same deed, and relative to the same matter, they are dependent on, and may be enlarged, qualified, or restrained by the subsequent stipu- lations. I think that the subsequent cove- nants between the parties in the present case have this effect. They explain and modify the risk undertaken by the plaintiff, and show it to be different in its operation from the un- qualified sense in which it is expressed in the recital. The covenant on the part of the defendant is that he will pay to the plaintiff $2,000, when, &c., in case the plaintiff shall take every legal step to prosecute to effect the said Baker and Hooker; and the covenant states the manner in which he is to prosecute, and the events upon which the defendant was to be liable, that is to say, "if the plaintiff, nor no one in his name, or in the name of Hooker, could recover judgment against Baker on the note, or against Hooker, in case the said Hooker had, at *the time of the cove- [*68 nant, discharged the said note, or should dis- charge the same previous to the bringing a suit against Baker." The parties contemplated a suit against Baker only in case the note re- mained due and undischarged, for this is not only the sense of the covenant, but it is ad- mitted by the pleadings that in such case no suit could be maintained against Hooker, he not having indorsed the note, nor being liable but in consequence of a discharge by him. It cannot, therefore, be supposed that the plaint- iff in that case was bound to sue both Hooker and Baker, before he could resort to the de- fendant. So, also, if the note had been dis- charged by Hooker at the time of the cove- nant, or at any time before a suit was brought against Baker, it cannot be imagined that either the plaintiff or defendant contemplated that in such case an experiment to recover a judgment against Baker was still to be made. It would not be requisite by the terms of the covenant, and would in itself be nugatory. The true construction of the covenant, there- fore, appears to be, that if the note was not discharged, a suit was to be brought, and a judgment endeavoured to be recovered against Baker; and if before such suit the note was discharged by Hooker, an attempt should then be made to recover a judgment against Hook- er, and in either case, if a judgment was re- covered, the plaintiff took upon himself the risk of the solvency of Hooker and Baker; but if in the one case no judgment could be recovered against Baker, or in the other against Hooker, the defendant was then to pay the money stipulated by his covenant. In 245 68 SUPREME COURT, STATE OP NEW YORK. 1799 this manner, I apprehend, and in no other, did the plaintiff take upon himself the risk as to the ability of Baker and Hooker respectively. It appears the note was not discharged by Hooker, and the plaintiff, therefore, com- menced his suit against Baker, and it is not denied that he has taken every legal step to recover a judgment against him; but it is in- sisted, that after the dismissal of the suit against Baker, in consequence of the act of Hooker, the plaintiff ought to have instituted 69*] another suit against *Hooker, and at- tempted to recover against him, which, as is alleged in the defendant's plea, and is admitted by the demurrer, he might have done by the law of Massachusetts. But by the terms of the covenant, a suit against Hooker was not necessary, for it requires the plaintiff to prose- cute Hooker only in case he had discharged the note before the date of the covenant, or before the commencement of a suit against Baker, and not after. It has been said, that this would be a literal construction, and against the spirit of the con- tract. All contracts are, no doubt, entitled to a fair and liberal interpretation, in order to effectuate their intent; but that intent ought to be sufficiently certain and obvious to jus- tify a departure from terms which are express and unequivocal. In the present case, the parties had in view the law of Massachusetts; the plaintiff under- took to prosecute at his own expense either Baker or Hooker in that State, as the case might require, and he was content with the liability of either, but he did not undertake to prosecute them successively, and expose him- self to the costs and delay of two suits. This expense and delay may have induced the precise stipulation in question, which appears to be the effect of deliberate caution and not of accident. Other reasons for this stipula- tion may also have existed, arising from the law of Massachusetts, or from circumstances not officially known to the court, and I think it would be more hazardous than liberal to say, that no sufficient reasons existed to sup- port the precise terms of the contract. We must consider them as understood by the par- ties, and deliberately made. As to the point under consideration, it seems to be expressed with care and precision, and we cannot with safety apply to it a meaning wholly different from what the terms import. If the intent were doubtful, the rule of construction would operate against the covenantor; but the sense of the parties in this instance is unequivocally expressed, and express covenants require a strict and absolute performance. (2 Str.,763.) If they impose a hardship, it is to be ascribed 7O*] to the indiscretion *of the party. The court cannot alter or amend the contract. In the case of -a bond conditioned to do a thing which is impossible at the time of exe- cuting it, the court cannot release the obligor. The bond is deemed to be single and valid, and the obligor is bound to pay the money. (5 Co., 22, b. Laughter's case.) It requires a much less rigorous construction to charge the defendant on this covenant. The plaintiff has also averred, in his declaration, that he had no legal remedy to sue upon the note in his own name either against Baker or Hooker. 246 This averment so far as relates to another prosecution against Hooker, for the reasons already given, I consider as mere surplusage. After the suit against Baker it was unnecessary for the plaintiff to say that he could not recover against Hooker. Upon the whole, I am of opinion, that the objection to the declaration is not well taken, and that the second plea, as well as the first.is insufficient, and that judgment ought to be rendered for the plaintiff. BENSON, J., and LEWIS, J., were of the same opinion. KENT, J. By the covenant it appears that the plaintiff was to do a previous act to entitle him to maintain a suit on the covenant; and 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 magis valeat quam pereat." The beneficial end which the parties had in view, is to be primarily regarded and enforced. Thus where an obligee engaged to deliver up his obligation to the obligor by such a day, and he in the meantime puts it in suit, and recovered upon it, and then deliv- ered it, this, although a compliance with the words of the agreement, was held no performance of the intent. (Cro. Eliz., 7.) So where A covenanted with B that he should enjoy a term for six years, discharged from tithes, and a suit was *brought after the [*7 1 expiration of the term, for the intermediate tithes, it was held that B was as much prej- udiced 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, and that the covenant was broken. (Cro. Eliz., 916.) By the same just and liberal rule of interpretation it is declared that if one covenant to deliver the grains made in a brew-house, and in the meantime he mix them with hops so as to render them unpalatable to cattle; or engage to deliver so many yards of cloth, and he cuts it in pieces, and then delivers it (T. Raym., 464); or if he covenants to leave the timber on the land, at the expiration of a lease, and he cuts it down and so leaves it, these and numerous other in- stances of the like kind to be met with in the books, 1 are all adjudged to be breaches of the covenant, because the law regards not a literal, but a real and faithful performance of con- tracts, according to the intent of the parties. These principles ought to be kept steadily in view, as having an application to the pres- ent case. It is pretty obvious, that the defendant did not intend to pay the $2,000 until the plaintiff had faithfully tried, and tried in vain, to re- cover the amount of the note from Baker and from Hooker. The note was sold to the plaintiff to be collected at his own risk, so far as respected the ability of Baker and Hooker; and it was a condition precedent to the pay- 1. See 1 Sid., 43, 151. JOHNSON'S CASES, 1. 1799 FUOST v. CABTER. 71 merit of the money by the defendant, that the plaintiff should take all and every legal step as the law directed, to prosecute to effect Baker and Hooker. He did take those steps to prosecute Baker, but not against Flooker, although 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 to do an act which was necessary to be done to entitle him to his action against the defendant. I mean the failure to take the steps by law directed to prosecute to effect Hooker as well as Baker. It may, however, be observed, that the case in which Hooker is to be prosecuted is afterwards particularly stated in the cove- 72*] nant, *and that Hooker was only to be prosecuted if he had, at the date of the cove- nant, or should previous to the suit against Baker, discharge the note; and that never hav- ing discharged the note, the plaintiff was under no obligation, by his covenant, to prosecute him. To this I answer, that although this be be the letter, it cannot 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 proceeds to specify the instance in which Hooker is to be prosecuted, to wit: if he had then already, or should, previous to a .suit against Baker, discharge the note. But the rational meaning of the covenant, deficient as it may be in perspicuity and precision, can- not be otherwise than this, that the plaintiff should first prosecute Baker, and if Hooker should prevent him from recovering against Baker, that he should then prosecute Hooker. The defendant seems to have contemplated but a single case in which Hooker could pre- vent a recovery, and that case he has specified, which was the discharge of the note: Whereas an interference by Hooker in discharging or releasing 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 a sufficient excuse, that Hooker did not pre- vent a recovery against Baker, in the mannei mentioned and expressly provided for in the covenant; that it is true he prevented a re- covery by discharging the suit, but he did not prevent a recovery by discharging the note, and that he must prevent the recovery in the latter mode, and not in the former, otherwise he was not to be prosecuted. I cannot approve of this subtle distinction calculated, as it appears to me, to elude the end and design of the covenant; for I can- not preceive any possible inducement, on the part of the defendant to stipulate that the plaintiff should previously prosecute Hooker, if he prevented a recovery against Baker by discharging the note, which would not 73*] *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 ex- pressly mentioned in the covenant, and that lie was not bound in the other case, because it happened to be omitted, although precisely JOHNSON'S CASES, 1. within the same reason, is for him to construe the article by its letter, and to disregard its spirit. It is the same, according to the cases mentioned, as to deliver up the obligation by the day, but in the meantime to prosecute and recover on it; or to deliver the cloth, but after it is cut to pieces; or to leave the timber on the land, but to leave it prostrate. I am ac- cordingly of opinion, that the plaintiff has not shown, in his declaration, the requisite previ- ous performance on his part, and that judg- ment ought to be rendered for the defendant. LANSING, Ch. J., declared himself of the same opinion. Judgment for tlie plaintiff. See 2 Caine's Cos., 305. FROST v. CARTER. 1. Insolvent Debtor What Debts discharged Statute of March 21, 1788. 2. Id. Provable Debts Bar. 8. Id. Indorser's Claim. If an indorsor of a promissory note pay it, after the maker has been discharged under the insolvent act, he may recover the amount from the maker, whose discharge will be no bar to the action. Citations 3 Wils., 14, 269, 271, 347. 580; 6 Term K., 489 ; 1 H. Black, 640 ; Cowp., 525 ; 1 Saund., 241,note 5. 2 Win. Black., 794; 3 Wils., 347; Cowp., 526; 1 Term K., 599. THE defendant, on the 3d of January, 1792 gave the plaintiff a promissory note for $9,209.44, payable in 90 days. The plaintiff indorsed the note, and it was further negotia- ted. It was not paid when it became due, and the defendant was afterwards discharged under the insolvent act. At the time of his discharge, the note belonged to one Mercer. Subsequently to the discharge, to wit, on the 1st of July, 1794, the plaintiff paid $3,000 and took up the note, and then brought this suit to recover that money back from the defendant. Mr. S. Jones, Jim., for the plaintiff. Mr. Hoffman, for the defendant. *KENT, /..delivered the opinion of the [*74 court; The Insolvent Act of the 21st of 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 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 before that time, though payable after- wards. Such debts must be specific and cer- tain sums of money, to which the creditor can make oath as being justly due, or to become due at some specified time ; and unless the creditor at the time of the assignment, be able to produce and verify such a debt, he will not be entitled to receive from the assignees his dividend of the insolvent's effects, nor will he be barred from his future action against the insolvent. So that, 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 indorsor, prior to the defendant's discharge, yet until he had actually paid the holder of the note and taken it up, he could 24? 74 SUPREME COURT, STATE OF NEW YORK. 1799- not be said to have a certain and ascertained debt due to him from the defendant. His de- mand upon the defendant depended upon the defendant's final non-payment of the note, and his payment of it for him. He stood, in re- spect to the defendant, in the relation of a surety only, and what portion of the note if any, short of the whole sum, the defendant himself might be able to pay to the holder, was a matter altogether uncertain. The plaint- iff, therefore, until he paid the $3,000 and took up the note, had not any specific and certain debt due to him from the defendant ; and as this debt which is now demanded ac- crued 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 de- fendant, and consequently, the discharge of the defendant cannot be a bar to a recovery in the present suit. 75*] *This construction of the operation of our insolvent act, is the same with that of the English bankrupt laws, in like cases. The statute of 4 and 5 Anne, c. 17, which was con- tinued by the statute 5 Geo. II., c. 30. . 7, extends the discharge of the bankrupt to all debts by him due and owing, at the time he became a bankrupt ; and the statute 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 insolvency, when it declares the force and extent of the insolvent's discharge. By the English decisions upon these 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, and which he could bring in under the commission of bankruptcy, he is not bound by the bankrupt's discharge. (3 Wils. 14, 269, 271, 347, 530 ; 6 Term, 489 ; 1 H. Black., 640.) And in like manner, that a surety, although he be liable before, yet if he does not actually pay the debt until after the act of bankruptcy committed, he cannot then prove it under the commission, but must re- sort to the bankrupt. (2 Win. Black. 794 ; 3 Wils, 347 ; Cowp. 526 ; 1 Term, 599.) It has been objected, and with some plausi- bility, 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 clone away by the discharge, for that the insolvent is dis- charged from all his then debts, to whomso- ever they may belong, and that if when dis- charged from the action of one creditor, he were to remain liable at the suit of another for the*-ame debt, it would be no discharge at all. These objections were raised and overruled in the cases of Taylor v. Mitt* & Magnett (Cowp. 525), and of Brook* v. Rogers (i H. Black. 650. See also 1 Saund. 241, note 5), and this answer appears to me to be plain and sufficient, that where a plaintiff cannot prove a debt until he has actually paid the money, and the payment be of the proper debt of the insol- vent, and after the assignment of his estate, the cause of action in such cases arises after the insolvency, although upon a pre-existent 76*1 ground ; and *as he cannot exhibit his 248 debt to the assigness, because there was no- sum due, and to which he could attest when the assignment was made, it is highly, nay indispensably just, that he should resort to the insolvent himself. The court are, therefore, of opinion, that judgment must be rendered for the plaintiff. Judgment for the plaintiff . l Followed 9 Wend., 313. Approved 9 Johns., 128 ; 15 Johns., 468. Distinguished 17 Johns., 45. Cited in 6 Johns., 126 : 20 Johns., 162 ; 8 Cow.,437 ; & Johns. Ch., 66, 286; 87 N. Y., 462; 27 How. Pr., 191; 1 Abb., 23 ; 2 Abb. N. S., 263. See 2 Johns. Cas., 281. See 2 Caines' Cos.. 311. M. SLEGHT, Administratrix of SLEGHT, KANE. Limitation Statute of Out of State Statute of March 21, 1783. Under the act of the 21st of March, 1783, suspend- ing 1 the statute of limitations during 1 the war ; and the act of the 26th of February. 1788, saving 1 the plaintiff's right of action, where the defendant is out of the State ; in an action on a promissory note, dated the 17th December, 1777, it was held, that the maker, being 1 within the British lines during 1 the war, and departing with the British at the close of the war, was to be deemed as out of the State dur- ing that time, and the cause of action being con- sidered as accruing on the 21st of March, 1783, the plaintiff having brought an action within six years after the return of the maker to the state, the latter could not avail himself of the statute of limitations. was an action on a promissory note, 1 made by the defendant to the intestate, for 100 pounds, dated the 17th of December, 1777, and payable on demand. The defendant pleaded non ansumptnt infra sex annos. The plaintiff replied, as follows : that before the date of the note, " to wit, on the loth of September, 1776, there was open war between the King of Great Britain and hi* subjects, and the United States of America and their citizens, in all parts of the world, to wit : at the city of New York, at the first ward of the said city, in the said County of New York, and there being so open war between the said king and his subjects, and the said United States, the army of the said king on the said loth day of September, in the said year of our Lord 1776, conquered, subdued and took possession of part of the southern district of the State of New York, that is to sav, of the counties of Suffolk, Queens, Kings, ftich- mond, and the said city and County of New York, and in the firm possession thereof con- tinued by virtue of the said conquest, from the said 15th day of September, in the year of our Lord 1776, until the 25th day of November, in the year of our Lord 1783, to wit, at the said city of New York, at the first ward of the said city, in the said County of New York. And the said plaintiff *further says, that [*77 on the said 17th day of December, in the said year of our Lord 1777, and before that day, the said defendant was an inhabitant of the County of Dutchess, in the said State of New York, 1. See 4 Term, 714, Howls v. Wiggins ; Cullen's B. L. 98, note (36.) Co. B. L. 164, Ex-mine Brymer ; Cow- ley v. Dunlop, 7 Term, 865, and the opinion of Lord Ken yon in that case. JOHNSON'S CASES, 1. 1799 M. SI-EGIIT v. KANE. 77 and that the place of abode of the said defend- ant was at Fredericksburgh, within said County of Dutchess, to wit, at the said city of New York, at the first ward of the said city, in the said County of New York, and that, after the making of the several promises, in the decla- ration aforesaid alleged to have been made by him the said defendant, to wit, on the said 17th day of December, in the said year of our Lord 1777, the said defendant left his said place of abode in the said County of Dutchess, and joined the said army of the said king, so as aforesaid in possession of the said southern districts of the said State of New York, to wit, at the said city of New York, at the first ward of the said city, in said County of New York ; and that the said defendant after so joining the said army, remained under the power and protection of the said army, so as aforesaid in possession of the said part of the said southern district of the said State of New York, from the said 17th day of December, in the said year of our Lord 1777, until the 24th day of November, in the year of our Lord 1783, to wit, at the said city of New York, at the first ward of the said city, in the said County of New York. And the said plaintiff further saith, that the said defendant departed from the said State of New York, before the 1st day of January, in the year of our Lord 1784, to wit, on the 24th day of November, in the said year of our Lord 1783. And the said plaintiff further saith, that the said John H. Sleght de- parted this life on the 1st day of January, in the year of our Lord 1790, to wit, at the said city of New York, at the first ward of the said city, in the said County of New York, and that between the 16th day of December, in the said year of our Lord 1777, and the said 1st day of January, in the said year of our Lord 1784, there was no sheriff, or any other officer, deriving his authority from the people of the said State of New York, appointed either for the said County of Suffolk, or *for the said 78*] County of Queens, or for the said County of Kings, or for the said County of Richmond, or for the said city and County of New York, to whom any writ of capifis ad respondendum, or any other process, issued in the name and by the authority of the said people, at the suit of the said John H. Sleght, against the said defendant, for the recovery of the damages of the said John H. Sleght, by reason of the nonperformance of the several promises in the declaration aforesaid alleged to have been made by the said defendant, could be directed and delivered for the taking and arresting of the said defendant. And the said plaintiff further says, that the said bill of the said plaintiff against the said defendant was exhibited within six years after the return of the said defendant to the said State of New York, to wit, at the city of New York, at the first ward of the said city, in the said County of New York, and this the said plaintiff, ad- ministratrix, as aforesaid, is ready to verify," fee. The defendant rejoined; "protesting, that the said John H. Sleght departed this life before the 1st day of January, in the year of our Lord 1790, and also protesting that the said bill of the said plaintiff, against him the said defendant was not exhibited within six years JOHNSON'S CASES, 1. after the return of him the said defendant to the said State, as by the said plaintiff is above in her first plea so pleaded in reply alleged; for joinder in this behalf the said defendant saith, that he the said defendant did not leave his said place of abode in the said County of Dutchess and join the said army of the said king, in the possession of the said part of the said southern District on the 17th day of December in the said year 1777; as the said plaintiff, ad- ministratrix as aforesaid, hath in her said first plea so pleaded in reply alleged; but was and continued to be an inhabitant of the said County of Dutchess, at Fred triscksburg aforesaid, in the said County of Dutchess, on that day, and for a long time thereafter, that is to say, until the 10th day of July, in the year of our Lord 1779. And the said defendant further saith, that the cause or action of the said plaintiff *iu the declaration aforesaid mentioned, [*7J> was given, accrued, fallen and come to the said John H. Sleght in his lifetime, before the said defendant departed from the said State of New York, to wit, on the 9th day of July, in the year of our Lord 1779, to wit, at the city and ward aforesaid, and this he is readj r to verify," &c. To this rejoinder the plaintiff demurred, and the defendant joined in demurrer. The general question was, whether upon the facts disclosed by the pleadings, the action was barred by the statute of limitations. BENSON, J. By the Act of the 8th March, 1773, being the law on the subject, as it stood before the Act of the 21st March, 1788, " the action on a promissory note was to be com- menced within six years after the cause of action arose, provided, that if the person en- titled to such action should be beyond sea, he should be at liberty to bring the action within the time before limited after he should return from beyond sea." By the Act of the 21st March, 1783, "no part of the time from the 14th October, 1775, to the day of the passing of the act was to be deemed a part of the period above limited." By the Act of the 26th February, 1788, "all actions on the case, other than for slander, are to be brought with- in six years after the cause of action arose; but if a person, against whom there then was or should be a cause of such action, then was or should be out of the State at the time any such cause of action accrued, in every such case, the person who was or should be entitled to such action, should be at liberty to bring the action against such person after his return to this State, so as he (the person entitled to the action) took the same after such return, within the time before limited." The note in question was certainly not bar- red on the 21st March, 1783; but it having been given during the period of the suspen- sion of the limitation, it had to run to the 21st March, 1789, and was as to the limitation pre- cisely *the same as if it had been given [*8O on the 21st March, 1783, or in other words, as if the cause of action had accrued on that day. If the Act of the 26th February, 1788, had never passed, and if the note had not been put in suit until after the 21st March, 1789. the defendant might have pleaded the limitation, ! as under the Act of the 8th March, 1773, and 249 80 SUPREME COURT, STATE OF NEW YORK. 1808 the plaintiff could not have replied that the defendant was out of the State. But the Aqt of the 26th February, 1788, giving the plaint- iff a right to reply such matter, the inquiry is, whether she had sufficiently alleged in her replication, that the defendant was out of the \ State on the 21st March, 1783, when, as I ; have already stated, the cause of action is to ! be deemed to have accrued, and that she brought her action within six years after the return of the defendant to the State ? The replication alleges, that the defendant left his place of abode in Dutchess County on the 17th .; 52 a. b.: 4 Co., 53 a.; 2 Mod., 115; 6 Mod., 258; 1 Salk.. 27fi : 2 Ld. Raym., 1551 ; P. Wins. 373 ; Co. Litt., 247 )>, 265 b, 339 a ; Litt., 8637; Co., 53 7<: 3 P. WmS., 215; 2 Ves., 70 ; Litt.,169 ; 6 Kep., 18 ; 2 Ves., 78. JACKSON, ex dem. the New Loan Officers of the County of Rensselaer and JOHN CRABB BULL. 1. Ejectment Lewor of Grantor. 2. Deed Relation to Contract. 3. Id. From ls>an Officer Grantor. 4. Id. Id. Date of Title. A deed executed in pursuance of a previous con- tract, for the sale of the same premises is good, by was an action of ejectment for lands - in the County of Rensselaer. On the trial of the cause at the last Rensselaer Circuit, it was admitted on the part of the defendant, that A. Francisco was seized of the premises in question, consisting of a tract of 160 acres of laud, and that on the 25th July, 1792, he executed a mortgage of them to the new loan officers of that county, who are lessors of the plaintiffs; that Francisco, on the 1st day of November, 1792, conveyed the same to Elijah Rawson in fee; that Elijah Rawson, by will bearing date the 23d day of October, 1793, de- vised the same to his son Edward Rawson in fee, who conveyed the same to the defendant. The plaintiff then proved that in May, 1795, there was a default in the payment of the interest due on the mortgage, in consequence of which, the loan officers advertised the premises for sale, according to the "act for loaning monies belonging to this State;" (loth Sess., ch. 25, Rev. Laws, 2 vol., 285) and on the 3d Tuesday of September, 1795, sold the same to Crabb, *the other lessor; and [*82 on the 5th day of January thereafter executed a deed to him for the same. The defendant offered in evidence a deed from Crabb, bearing date the 31st day of Oc- tober, 1795, conveying an undivided moiety of 140 acres.set off by metes and bounds.and parcel of the said 160 acres, to Levin us Lansing, and also a deed from the said Crabb and Levinu.s Lansing, bearing date the 4th day of Novem- ber, 1795, conveying the said 140 acres to the said Francisco. The plaintiff then produced another deed from Edward Rawson, bearing date the 9th day of February, 1795, conveying all his right and title in the said 160 acres to the said Lan- sing and Crabb. and also a bond from the de- fendant to Edward Rawson, dated the 8th day of August, 1795, conditioned that the defend- ant should pay off and discharge all incum- brances on the said tract of 160 acres. On this evidence a general verdict was taken for the plaintiff by consent, subject to the opinion of the court, whether the plaintiff was entitled to recover the whole 160 acres, and if not, that he should be restrained on the writ of hob. fac. pox*, from taking possession of more than the 20 acres, which were not in- cluded in the conveyance from Crabb and Lansing to Francisco. This case was argued at the last January Term, on the following points: 1st. Whether by means of the forfeiture of the mortgage, and the sale by the loan officers to Crabb, on the 3d Tuesday of September, 1795, anv title was transmitted to Crabb, so as to enable him NOTE. Relation. Where divers acts concur to make a conveyance, the original uct is to be preferred and the others re- late back to that ; not, however, if the rights of in- nocent third parties will thereby be prejudiced. 250 Case v. De Goes, 3 Calnes, 261 ; Jackson v. Bird, 4 Johns., 230; Heath v. Ross, 12 Johns., 140; Jackson v. Davenport. 20 Johns.. 537; Pratt v. Potter, 21 Barb., 589; Pierce v. Hall, 41 Barb., 142; State v. Tool, 4 O. St., 553 : Pettibone v. Burton, 20 Vt., 302. JOHNSON'S CASES, 1. 1799 JACKSON, EX DEM., ETC., v. BULL. to convey to Lansing, and to enable Crabb and Lansing to convey to Francisco previous to the execution of the deed from the loan officers to Crabb. 2d. If not, whether Crabb is not estopped or concluded by the deed executed by him and Lansing to Francisco, from claiming the 140 acres conveyed by that deed. Mr. Bird for plaintiff. Mr. Lush for the defendant. 83*] *LEWIS, J. The loan officers are trustees for the people of the State, and although their authority to sell be coupled with an interest, yet, as it is not a beneficial one, a purchaser does not take under them, but under the power created by the statute and the mortgage deed. He will not, perhaps, take by relation from the creation of the power, but certainly from the time of execut- ing the power. What, in the present case, was the act executing the power? Was it the sale by the loan officers, or their execution of the deed of conveyance? I am of opinion that it was the former, and that whatever in- terest the mortgagor had at the time of exe- cuting the mortgage, was immediately upon the sale and payment of the purchase money, transferred to, and vested in the purchaser, and that his title would have been complete, though no deed had ever been executed by the loan officers. This opinion is founded on the following principles: 1st. That where a pur- chaser takes by the execution of a power, he is in, and holds under the authority creating such power. 3d. That where an authority is coupled with an interest, it shall be construed liberally, and an execution in substance, shall be sufficient. Thus a sale by executors under a power contained in the will of their testator, is a good execution without deed; (Litt., 169) and if a power be coupled with an interest, though it be joint, it might, before the statute of wills, be executed by a survivor. So, also, in a feoffment to uses to be declared by will, the cestui que use is in by the feoffment and not by the devise. 1 So, also, a purchaser at a sheriff's sale is in under the judgment and execution. These principles are not opposed to any- thing contained in the act from which the loan officers derive their authority; on the contrary, they appear to me in perfect coincidence with it. The 16th section declares that the pur- chaser shall hold the lands for such estate as was conveyed to the loan officers by the mort- gage. The injunction on them to execute a conveyance, is merely directory; and though 1. See the case of Sir Edward Clere, 6 Rep., 18; Bagley v. Warburton. 2 Com., and Duke of Marlbor- ougii v. Lord Godolphin, 2 Ves., 78. it may serve as an additional evidence of the sale, it is not, in my opinion, essential to the purchase; nor does their erection into a body corporate, in any wise alter the case, this *being evidently intended to give a facility [*84 to the discharge of their various duties, and perhaps to prevent doubts and embarrassments that might arise from death or other circum- stances. The deed also is not directed to be given in the usual form of a corporate act merely, for though made under their seal, they must respectively subscribe their names. But should the deed be .considered as essen- ! tial to the execution of the power, I do not j see that it would alter the case; the act con- templates the conveyance to be made imme- diately upon the sale; the words are, "and upon such sale shall convey," &c. Now, the maxims of equity (Lechmere v. Earl of Carlisle, 3 W. P., 215), that what ought to be done, shall be considered as done, and that trustees shall not affect the rights of other persons by not doing, or by delaying to do their duty, will forcibly apply; and we may, accordingly, so construe the words of the act as to make the conveyance relate to the time of sale, or it may be done by analogy to the case of the Duke of Marlb&rough (2 Vesey, 70), where it was determined, that although by bargain and sale nothing passed without enrollment, yet if j the deed be acknowledged and enrolled with- i in the six months, though the bargainee be dead, the whole should relate to the time of execution. The reason is that the enrollment is a collateral act required by the statute and does not arise from the nature of the convey- ance; so here, the execution of the deed was a collateral act required by the statute and did not arise from the nature of the transfer, which, as has been shown, would have been sufficient in an ordinary case without deed. My opinion therefore is, without consider- ing the second point, that the conveyances from Crabb to Lansing, and from them to Francisco, legally transferred the title to the 140 acres, and of course that the plaintiff ought to recover the remaining 20 acres only. 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 a greater estate from vesting [*85 without writing; it is, besides, a general rule of law that a corporation cannot sell land with- out deed, and the loan officers, in the present instance, are ordered by the act to convey the land which they should sell at auction, by deed under the loan-office seal. But I adopt as a just rule of construction, and applicable to the present case, the princi- ple laid down by this court, in the cause of Where a deed is to be delivered to the grantee on the death of the grantor, the title by relation passes at the time the deed was left for delivery. Hatha- way v. Payne, 34 N. Y., 32. Deed of feme covert acknowledged after hus- band's death, the first execution not having 1 been within the statute, held not to relate back to the time of the original execution. Doe v. Rowland, 8 Cow., 277. Land patent dated Dec. 4, which did not pass the great seal until Dec. 28, held to relate back to Dec. 4. Heath v. Ross, 12 Johns., 140. JOHNSON'S CASES, 1. Acknowledgment of sheriff 's deed after his term had expired, held to relate back. Doe v. Dugan, 8 O., 107. The ratification of a deed executed during- insanity will not make it effectual as against the grantor's prior deed, executed while he was sane and recorded after the execution, but before the ratification of the second deed. Bond v. Bond, 7 Allen, 1. See, further, Cheney v. Woodraff, 45 N. Y., 100; Johnson v. Stag)?, 2 Johns., 510 ; Jackson v. Dicken- son 15 Johns., 309 ; Jackson v. Ramsay, 3 Cow., 75 ; Demarest v. Ray, 29 Barb., 563; 19 How. Pr., 574. 251 85 SUPREME COURT, STATE OF NEW YORK. 1799 Jackson, ex dem. June,\. Raymond, 1 "that 86*] "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 87*] the *grant is to relate, is the time when the bargain for the sale was finally concluded between the parties, and that, consequently, any intermediate adverse possession before the *execution of the conveyance (which is [*88 only the technical consummation or evidence of the grant), can never affect it." In the present case, therefore, the deed to Crabb of the *5th January, 1796, shall have rela- [*8J> 1. JACKSON, ex dem. JUNE, v. RAYMOND. JANUARY TERM, 1798. H., on the 34th March, 1792, made a lease of certain premises for two years to R., and after the expira- tion of the lease, on the 25th of December, 1794, sold and conveyed the premises in fee to J., pursuant to a previous contract, for the sale on the oth August, 1794. R. refused to quit the possession, and in an action of ejectment brought by J., it was held that R. was a mere tenant at will, and that there was no actual disseisin, or by election of H. so as to render a previous entry necessary to enable him to pass his interest by the conveyance, which has relation back to the time the contract of sale to J. was made. THIS was an action of ejectment for a house and lot of land in the town of Newburgh, in Ulster County. On the trial the plaintiff proved that one Hustice,. on the 24th day of March, 1792, made a lease of the premises to the defendant, for the term of two years, and that after the expiration of the said lease, to wit, on the 25th day of December, 1794, Hustice conveyed the same in fee to the lessor. The defendant proved that he was in the 1 actual possession of the premises at the time of executing 1 the said conveyance, and that on the 5th day of August, 1794, he received from the said Hustice, a written notice to quit the premises in the words following: " WESTCHESTER, August 5th, 1794. "Sin: On account of your neglect, I have this day bargained with Mr. June for my place which you live on. This is to inform you, that you must, upon sight, leave the place to the care of the said June. " DAVID HUSTICE. " To Francis Raymond." The defendant refused to quit the premises, upon which Hustice commenced an action of ejectment against him in this court, which was pending at the trial of this action. A verdict was taken for the plaintiff, subject to the opinion of the court, whether Hustice, by giv- ing the notice to quit, and bringing his action of ejectment, had not elected to consider himself dis- seised, and if so, whether he could, without an actual entry, convey the premises to the lessor of the plaintiff. In January Term, 1798, after two arguments, the court delivered their unanimous opinion in favour of the plaintiff's right to recover. BENSON, J. The objection to the validity of the conveyance from Hustice, to the lessor of the plaintiff, is founded on the idea of an adverse pos- session in the defendant at the time of executing the conveyance. It, however, appears from the con- tents of the written notice to the defendant to quit, which was produced in evidence by him, that Hustice had contracted for the sale of the premises to the lessor at the date of the notice. This, in ray opinion, renders it unnecessary to decide whether the possession ought to be considered as adverse at the time of executing the conveyance. The con- veyance must be deemed to relate "to the time when the contract for the sale of the premises was made; and I adopt it as a general principle that whenever it is intended to l>e shown that nothing passed by a grant by reason that at the time there was a posses- sion in another adverse to the grantor, the time to which the grant is to relate is the time when the bargain or contract for the sale and purchase of the land was finally concluded between the grantor and grantee, and consequently, any intermediate ad- verse possession before the execution of the con- veyance, which is the technical consummation of evidence of the grant, can never affect it. I am therefore of opinion that the conveyance to the lessor was valid, and that the plaintiff is entitled to recover. LEWIS, J. Two questions arise in this cause. 252 1. Was there an actual disseisin of Hustice? 2. Was he so dispossessed.by election or otherwise, as to make an actual entry necessary to enable him to pass his interest? I do not find, among any of the authorities I have met with, those adduced by the defendant's counsel not excepted, that the holding over of a tenant for years was ever considered as an actual disseisin. To satisfy ourselves that the contrary is the fact, we need only resort to the ancient definitions. In Litt., sec. 279, disseisin is said to be where a man enters into lands or tenements (where his entry is not con- geable), and ousteth him who hath the freehold. And in the Commentary it is subjoined, " Every entry is not a disseisin, but there must be an actual ouster of the freehold." A tenant for years or at sufferance enters by title; of course his entry is lawful, and there is no disseisin. Whether he may be a disseisor at election is not now the question. The cases and authorities principally relied on by the defendant's counsel, on the argument of this cause, were, first, that of Blunden & Baugh (Cro. Car., 302), which, if applicable at all to the case be- fore us, certainly is not in his favor. The qiu-s- tion there was, whether a lease for years by a tenant at will was an actual disseisin of the freehold and inheritance, and three judges against one held it was not. The next is from 1 Roll., 559, pi. 15, which is decis- ively against him. The words are, "If lessee for years holds over his term, yet is he no disseisor. for this, that he comes in by act of the party, but he is called tenant at sufferance." And in 1 Inst., 57 />, the same definition of a tenant at sufferance will .be found. The case of Hous and Artois (2 Leo., 45), is in the same predicament. The reasoning of counsel ap- pears here to have been mistaken for the decision of the court, which is directly against it. The princi- pal question was, whether copyholds granted by a tenant pur autre vie, after the death of the certui que vie were valid. All the justices held that they were not; "for that he who granted was but tenant at sufferance, and not a disseisor, nor had gained a fee, because he came in first of right." In the case of The Mayor and Commonalty of Nor- wich v. Johnson (3 Mod., 91, 92), the reasoning of counsel is again relied on, which, however, as far as it is applicable to this case, merely tends to show that by disseisin a fee is acquired, which will not be denied. The case of Jackson, ex dem. Fisher and Taylor, v. Prosser (Cowp., 217), was adduced to show that a man may come in by a rightful possession, and yet hold over adversely without a title. And Lord Mansfield held that he may, under circumstances. The question simply was, whether a tenant in com- mon, holding the whole, independent of his co- tenant, for 40 years, was not a sufficient circum- stance to be left to a jury to infer an actual ouster, to let in the statute of limitations as a bar to the action. The court determined that it was, and the jury found accordingly. In the case of Doyle v. Walke (Carth., 2), the rea- soning of counsel is again relied on. It is true the court accord with him in opinion on the point raised, but surely not for the reasons he assigns, and the point then in question has no kind of rela- tion to the present case. It was simply this, that on a scire facing to an executor, on a judgment had against his testator, it was necessary to state him in the writ not merely an executor, but as terre-ten- ant of the lands recovered. (See, also, Salk., 600, Proctor v. Johnso.n) In the case of Taylor, et dem. Atkyns, v. Horde (1 Burr., Ill), this question is decided by Lord Mans- field, who says, where an ejectment is brought, there can be no disseisin, because the plaintiff may lay his demise when his title accrued, and recover the profits from the time of the demise. The entry confessed is previous to making the lease: but there is no real or supposed re-entry after the ejectment complained of. If it was considered as a disseisin, no mean profits could be recovered without an actual re-entry." JOHNSON'S CASES, 1. 1799 JACKSON, EX DEM. ETC., v. BULL. 89 tion back to the 3d Tuesday of September, 1795, being the time of the final conclusion of the bargain by the sale and purchase at pub- OO*] lie *auction, so as to render valid any intermediate sale or disposition of the land by Crabb. Even supposing the deed of the 5th Janu- ary, 1796, could not have this retrospective force by relation to the time of the conclusion of the sale and purchase at the vendue, still Crabb can never be permitted to claim in opposition to his deeds of the 31st October and 4th November, 1795, by alleging that he had then no estate in the premises. For if a man makes a lease of and by indenture which is not his, or levy a fine of an estate not vested, and he afterwards purchases the land, he shall, notwithstanding, be bound by his deed, and not be permitted to aver he *had nothing, and the stranger to whom [*91 he sells will eauallv be estopped. (Cro. Car. . 110; Co. Litt., 45 a, 47 *; 352 a, b; 4 Co., 53 The second question I consider as the more nice and doubtful of the two. It will be proper to divide it, and to consider, first, whether a reversion- er, after the termination of a term for years, can alienate his interest without an actual entry, his les- see holding: over : second, .whether he can so alienate, pending 1 an ejectment brought by him for the recovery of the premises. There are many cases in which an actual entry is necessary, either to vest a new interest or to reduce an existing 1 one. There are also some in which it is not necessary (at least to certain purposes), being either supplied by operation of law, or on account of the little estimation in which the law holds the particular interest. Thus an heir-at-law may make leases before entry, although he cannot maintain trespass, until by entry he acquires possession in fact. (Plowd., 142.) Thus, also, no entry is necessary to avoid an estate which ends by limitation, the law casting it on the party to whom it is limited, without entry or claim, and vesting it in him until he disagrees to it. (2 Mod., 7.) Thus, also, it will be found that conditions have been construed into limitations to support convey- ances of estates. In the case of Poussly v. Blackman (Cro. Jac., 659), on a bargain and sale of lands, con- ditioned to be void on payment of a sum of money, and that the bargainee should not enter until fail- ure of the condition, the bargainor failed to make payment, the bargainee never entered, but devised the lands and died, and it was held a good devise on which the devisee could maintain an ejectment. The smallness of the particular estate also, as where it is but a chattel interest, will, in some cases, render a re-entry unnecessary. If a lease be for life upon condition, the reversioner shall not take advantage of a failure of the condition without entry; but if the lease had been for years, it would be otherwise, because the lease for years is ipsn facto void, by breach of the condition, without entry; for a lease for years may begin without cere- mony, and end without ceremony, but an estate of freehold cannot begin or end without ceremony: and of a void thing a stranger may take benefit, but not of an estate voidable by entry. (Co. Lit., 214 ft ; Jenk., 121, case 43.) In the case of a tenant at sufferance, no re-entry is necessary to enable the reversioner to pass his in- terest. In Willis v. Jermine (2 Leon., 97), in eject- ment, a lease was made to Jermine rendering rent, and for default of payment, to be void. The rent was afterwards demanded and not paid, and the lessor, without entry, leased the lands to Willis, Jermine being in the actual possession, and it was held good, for that Jermine was but a tenant at suf- ferance and the counsel for the defendant agreed that if he was but tenant at sufferance, the second lease was good. There are few cases in which the possession of a tenant at sufferance is regarded in law. His descent will not toll an entry. (Cro. Eliz., 238; Allen v. Hill.) Of course, he cannot be a disseisor. His possession and taking of the profits is not sufficient, in case of conveying away the property, to protect him against a prosecution for maintenance ; for by Wray, Ch. J., in the case of Pike v. Hassan (3 Leon., 233), he is but a tortf easor. From these authorities it results that a lessor, after the expiration of the term of the lessee for years, may convey without actual entry, notwith- standing the holding over of the lessee. The only remaining question is whether Hustice, by bringing his ejectment, so far altered his situa- tion as to make an entry necessary. The case of Smartel v. Williams (Salk., 246) furnishes the answer, and will be found to meet precisely every point that has arisen in this cause. A mortgage of a term as- signed without the mortgagor's joining; the as- signee brought an ejectment, and pending the suit, JOHNSON'S CASES, 1. assigned over. The questions were, as in the case before us, was this a disseisin; was not the term devested and turned to a right, by the first assignee having elected to consider himself dispossessed; could he therefore assign without entry; and could the second assignee maintain this action as lessor of the plaintiff ? It was held by Holt that the mort- gagor, by the covenant to enjoy until default of payment, is tenant at will; the assignment made him tenant at sufferance, but his continuance in possession could never make a disseisin, nor devest- mg of the term. Otherwise, had the mortgagor died and his heir entered ; for the heir was never tenant at will, and his first entry was tortious. And as to the bringing of an ejectment, that could not admit an actual devesting, so as to turn the term into a right, for that was not brought to recover the mort- gaged term, but the actual possession only, nor does the assignee appear a party to the record, but only lessor of the plaintiff, so that this record* can be no evidence or estoppel against him ; and the court will take notice, that an ejectment is only a fictitious proceeding for recovering the possession, which cannot well be otherwise obtained and that the entry confessed is not a real entry, for it will neither avoid a fine nor support trespass for niesne profits. Thei-e still remain a few authorities, which were cited and relied on at the last hearing, that merit notice. A landlord cannot bring trespass without entry, against a tenant who holds over. (2 Black. Com., 150; Mod., 384.) This is unquestionable law, and results from the circumstance of his first entry having been rightful and not tortious and also from that rule of law, that none but the person who has the possession in fact can sustain this action. Two consequences, however, result from those authorities, in confirmation of the doctrine laid down in Smartel v. Williams, to wit, that a plaintiff in ejectment admits himself dispossessed, for the sake of his remedy merely, and to no other intent, for after a recovery he may maintain tres- pass for mesne profits, without an actual entry; and that such tenant cannot be a disseisor, for a dis- seisee may have trespass for the first entry, without redress, though not of the continuance of the tres- pass after the entry. (Bro., tit. Trespass, pi. 227, and Co. Litt., 257.) A case was also cited from 2 Black. Com., 144, to this effect, that a tenant for years possesses only his term; the possession and seisin of the land being in the freeholder. The inference from this is certainly favourable to the plaintiff, for he surely might accept a grant of the freehold from one possessed of it. This authori- ty also furnishes an answer to the objection on the ground of maintenance. From these various authorities, I am of opinion that a tenant at sufferance has no such interest or possession as will prevent him who has the freehold from passing his estate, and that his grantee may maintain this action : That an ejectment brought by the grantor, though pending at the time of the grant, will not affect the grantee's right; and that he may elect to be dispossessed for the sake of his remedy only, without being considered so to any other intent.t I therefore think that the verdict ought to be entered for the plaintiff. LANSING, Ch. J., declared himself to be of the same opinion.* Judgment for the plaintiff. * The first which was produced in evidence. t See the case of Jackson, ex dem. Van Alen, v. Rogers, ante, 33. $ Only three judges were present during this term. 25S SUPREME COUKT, STATE OF NEW YORK. 1799 a; 2 Mod., 115; 6 Mod., 258; 1 Salk., 276; 2 Ld. Raym., 1551; 3 P. Wms., 373.) Whether a person can, in such a case, be said, technic- ally, to be estopped because it is of the nat ure of an estoppel to bind privies as well as parties (Co. Litt,, 247 b, 265ft, 339 a; Litt,, sec. 637), and whether a deed can operate at all by way of estoppel, if any interest passes by it (Co. Litt., 45 a, 47 b; 8 Co., 53 b; 3 P. Wms., 373 n), are points on which I forbear to give an opinion, as they are not necessary to be discussed in the present case, since there can be no doubt that Crabb himself can never claim against his own deed. I am according- ly of opinion that judgment must be rendered for the plaintiff for the 20 acres only. RADCLIFF, J., BENSON, J., and LANSING, Ch. J., were of the same opinion. Judgment for the plaintiff. Distinguished 4 Johns., 234; 5 Johns., 501. Limited 13 Wend., 213. Cited in Col. and Cal., 389 ; 2 Johns., 520 ; 7 Johns., 31 ; 12 Johns., 141, 204 ; 13 Johns., 414 ; 16 Johns., 115 ; 2 Cow., 230, 312 ; 3 Cow., 80; 5 Wend., 525; 11 Wend., 119; 4 Hill, 174; H. & D., 311; 1 Johns. Ch., 298; 3 Johns. Ch., 146; 2 Paige, 265; 18 N. Y., 583; 47 N. Y., 14 ; 57 N. Y., 99 ; 62 N. Y., 270 ; 87 N. Y., 462 ; 3 T. & C., 268 ; 4 Barb., 187 ; 21 Barb., 592 ; 30 Barb., 623 ; 33 Barb., 497 ; 66 Barb., 220. See 2 Caines' Cas., 301. JACKSON, ex dem. TROWBRIDGE ET ux., DUNSBAGH AND DUNSBAGH. 1. Estates in future Use Warranty. 2. Deeds Construction Interest. 3. Id. Id. Set-> eral Deeds. 4. Id. Covenant to stand seised. 5. Id. Id. Consideration. 6. Id. Id. English rule. Several instruments or deeds of the same date, between the same parties, and relating to the same subject, may be construed as parts of one assurance. A deed from a father to his son, in consideration of 10 shillings, was held to be a covenant to stand seised to the use of the grantee. Citations 1 Burr., 69 ; 7 Rep.. 40 ; 8 Rep., 93 ft ; 11 Rep., 24 b ; 1 Rep., 176 a. Sanders, 133 ; Bacon on Uses, 63. Sanders, 430-440. fPHIS was an action of ejectment for lands in I Germantown, in the County of Columbia. The cause was tried before Mr. Chief Justice Yates, at the Columbia Circuit, in October, 1795. A special verdict was found, which con- tained the following facts: 1. That Jost Hendrick Dunsbagh, by in- denture made the the 27th of May, 1754, be- tween him and Philip Dunsbagh, for the con- sideration of 10 shillings, granted, bargained and sold, &c., to Philip Dunsbagh the prem- ises in question, after the decease of the said Jost; to have and to hold the premises to the said Philip, his heirs and assigns forever, after the decease of the said Jost. This identure contained covenants that the grantor was the owner of the premises, and was rightfully seised of a good estate in the same, and that the grantor had full power to grant, bargain, &c., the premises, to the said Philip, his heirs and assigns forever, after the decease of the said Jost, and also that Philip, his heirs and assigns, *should at all times thereafter [*92 peaceably and quietly have, hold, &c., the premises ; and a covenant for further assurance. 2. On the said 27th of May, 1754, certain articles of agreement in writing were made and executed between the said Jost and the said Philip, wherein. Philip is named as his son, and whereby the said Jost, "for divers good causes and considerations him thereunto mov- ing, did give and grant unto his son Philip, and to his heirs and assigns forever, the one full half part of his mill, and also the full half part of all the yearly income of the said mill, dur- ing the natural life of the said Jost, to the only proper use and behoof of the said Philip, his heirs and assigns forever, as might more fully appear by a pair of identures, bearing even date. And it was further agreed by the same instrument sealed, that if the said Philip should come to marry, then and in such case, the said Philip should have the half of all the growing produce of the said Jost's farm, which should be equally divided between the parties, yearly and every year, during the life of the said Jost, and after his decease, the said lands and farm (which were the premises in ques- tion) should be and remain in full, with all the yearly incomes, unto the said Philip, and to his heirs and assigns forever, as might more fully appear by a pair of indentures thereof, bearing even date. But in case the said Philip should not marry, then he should have no more than the third part of tlie yearly in- comes of the said land, or farm, during the life of the said Jost, and after his decease, the said lands or farm (the premises in question) should be and remain in full unto the said Philip, his heirs and assigns forever;" for the performance of which, each bound himself to the other in the sum of 200 pounds. 3. That the said Philip was, at the time of the execution of the several instruments afore- said, the only son of the said Jost. 4. That the said Philip, on the 19th day of September, 1754, made his last will and testa- ment, in due form of *law, and thereby [*$>3 gave unto his sister, Catharine Dunsbagh, and her heirs and assigns forever, " all his lands that he had lying in the camp, within a cer- tain patent of 6,000 acres, as might more fully NOTE. Two or more instruments, when construed Two instruments executed at the same time be- tween the same parties relative to the same subject matter, are to be taken in connection as one agree- ment. Stow v. Tifft, 15 Johns., 458 ; Clap v. Draper, 4 Mass., 267; King v. King, 1 Mass., 499; Perry v. Holden, 22 Pick., 277 ; Cloyes v. Sweetser, 4 Cush., 403; Jackson v. Me Kenny, 3 Wend., 233; Con- nell v. Todd, 2 Denio., 130; Doe v. Bernard, 7 Smede & M. (15 Miss.), 319; Pepper v. Haight, 20 Barb., 429. There must be identity of parties and date. Craig v. Wells, 11 N. Y., 315. The papers must appear on their face to refer to the same transaction. Cor- 254 nell v. Todd, above cited. But see Gammon v. Freeman, 31 Me., 243. Bond executed subsequent to the recording of a deed, upon the refusal of the grantee to accept the deed, construed with the deed. Flagg v. Munger, N. Y., 483. Declaration of object in a separate instrument not under seal may operate to alter the character of a deed. Ford v. Belmont, 7 Robt., 97. Where a husband received conveyance of land, and at same time mortgaged it to third party and the mortgage was foreclosed, the two instruments may be construed together so as to defeat the wid- ow s right of dower. Clark v. Munroe, 14 Mass., 351 ; Gammon v. Freeman, 31 Maine, 243. JOHNSON'S CASES, 1. JACKSON v. DUNSBAGH AND DUNSBAGH. 93 appear by a certain deed thereof, dated the 27th of May, 1754" (and which were the premises in question). 5. That Philip departed this life on the 10th day of October, 1754, without issue. 6. That Catharine Dunsbagh, named in the said last will and testament, intermarried with Hendrick Botts, and by him had issue Mar- garet, one of the lessors of the plaintiff, and who was her only child. 7. That Hendrick Botts and Catharine his wife, departed this life in the month of Octo- ber, 1755. 8. That the said Margaret, one of the lessors, was at the time of bringing this action, and before, intermarried with Trowbridge, the other lessor of the plaintiff. 9. That Philip, in his lifetime, after the exe- cution of the said first-mentioned deed, and until the day of his death, lived on the said premises in the said deed mentioned, in the family of the said Jost, and during the said period, attended to the said grist-mill upon the premises aforesaid, and cultivated the said lands in the said deed mentioned, to- gether with the said Jost. 10. That the said Jost remained in posses- sion of the said premises, from the time of the execution of the first-mentioned deed until the time of his death, which was in 1788. 11. That on the 13th of November, 1765, certain indentures were made and executed by and between the said Jost and Jacob Blatner, whereby for securing the payment of a sum of money, the aforesaid premises were mortgaged to the said Blatner. 12. That on the 7th day of March, 1785, Jost made his last will and testament, in due form of law, and thereby devised the prem- ises aforesaid to John Dunsbagh and Philip Dunsbagh, the above defendants. O4*] *But whether, upon the whole matter, the defendants were guilty, the jurors were ignorant, and prayed the advice of the court, &c. Mr. Spencer for the plaintiff. Mr. Gilbert for the defendant. LEWIS, /. The questions arising on this special verdict are, 1. Did Philip, the son of Jost Hendrick Dunsbagh, under whom the lessors of the plaintiff claim, derive any title to the premises in question, under the conveyance of the 27th of May, 1754. If not, 2. Did he derive any title under the article of agreement of the same date, taken either separately, or in consideration with the said conveyance, as constituting separate parts of one agreement? The consideration in what I shall call the first deed (as the other refers to it) is pecuniary, in that of the second it is general, and Philip is called in the deed the son of Jost. For the plaintiff, it is contended, that the two instruments must be taken in connection, and the consideration be thus by implication, as well consanguineous, as pecuniary, and that so a use will arise to Philip, to be served out of the seisin of Jost, by way of a covenant to stand seised. Whether Philip derived any interest from the first deed, considered independently of the JOHNSON'S CASES, 1. second, and operating as a bargain and sale, or from the second deed independent of the first, or whether a covenant to stand seised can be supported by a pecuniary consideration, were points not raised for our decision. For the defendant, it was insisted, that the first deed created a freehold to commence in futuro, and was, therefore, inoperative; that the two instruments ought not to be taken in connection, the first being complete without the aid of the second ; that should they be so taken, there being an express consideration, no other can be raised by implication; and that should they be construed as constituting a covenant to stand seised, still the use to Philip was *never executed, the seisin [*95 out of which it was to arise having been de- stroyed by the mortgage to Blatner. It is undoubtedly a rule of law that an es- tate of freehold cannot be made to commence in futuro. But this rule is only applicable to those common law assurances which operate by transmutation of possession. It does not embrace such as are effectuated by transmuta- tion of a use. unless with warranty. It is also a rule that in the construc- tion of deeds, the intent of the parties shall, if possible, be carried into effect; the meaning of which is, that where it shall appear to be the intent of the parties that the lands shall pass, the mode or form of conveyance is not ma- terial, but the intent shall be affectuated by every legal means. In the present instance, the intent of the parties evidently was that Philip should have one half of the will and of its product, with one third of the farm (or the premises in question), to be increased to one half (in the event of his mar- riage) during the life of his father, with a remainder in fee in the premises, ex- pectant on his death. If, then, by any legal construction of these instruments, this" intent can be carried into effect, it ought to be done. On the authority of the case of Taylor, ex dem. Atkyns, v. Horde (1 Burr., 60), I think the two instruments may be taken in connection, as forming together the several parts of one agree- ment. They bear the same date, are consistent, and between the same parties, relate to the same property, and are manifestly parts of one agreement executed by different instruments. But where is the advantage to the plaintiff from such connection? The implied consid- eration cannot be substituted for the express one, or be united with it. The maxium is ex- pressum facit cessare taciturn. (Bedttt'x case, 7 Rep., 40; Fox's case, 8 Rep., 93 b- Harper's case, 11 Rep. 24 b\ Mildmay's case, 1 Rep., 176 a.) The extent of the rule is to admit of an implied or averred consideration, only where the consideration is general or alto- gether omitted. I shall consider these instru- ments separate, and am of opinion that under either of them the lessors of the plaintiff derive a good title. *Construing the first deed as a bargain [*96 and sale, of which it certainly contains all the requisites, I am inclined to think it effective of the intent of the parties. The operation of this species of conveyance is that the bargainer on the execution of the deed, stands seised to the use of the bargainee; and though the stat- ute transfers the possession to the use, still the 255 96 SUPREME COURT, STATE OF NEW YORK. 1803 bargainee is seised and possessed in such like estate as lie bad in the use. A consequence of this operation is that a conveyance by bargain and sale to the use of third persons is not good, because there the use is to be served out of the seisin of the bargainee, and thus a use would be raised upon a use against the rules of law which reqviire it to be served out of a seisin at common law. But where the use arises and is served out of the seisin of the bargainer, the effect is different. To apply this distinc- tion to the case under consideration : here is a conveyance to the bargainee to take effect at the decease of the bargainor, which creates a resulting use to the latter during life, with a vested use in remainder to the bargainee in fee, both uses being served in succession out of the seisin of the bargainor. An authority to this effect will be found in Sanders on uses and trusts, 1 where it is said that if a man bar- gains and sells his land after seven years, the grant is good, and until it takes place the use results. ' The next point to be examined is, whether the pecuniary consideration in the first deed is sufficient to raise a use by way of covenant to stand seised. It has been a general opinion that no considerations but those of blood and marriage are sufficient for that purpose; this appears to me to be an error. It is true that such is the case in England; but it has been so since the statute of enrollments only, before which time, covenants to stand seised could be raised on pecuniary considerations. The in- tent of this statute being to restore the notori- ety of conveyances, the courts of justice, to forward the views of the Legislature, and to prevent evasions of the law, determined that where the consideration of a deed was pecun- 97*] iary, which was of *a private or secret nature, it should not take effect as a covenant to stand seised, which did not require enroll- ment, but as a bargain and sale, which did. Consideration of blood and of marriage being of a public nature, and always having suffi- cient notoriety attached to them, did not fall within the same reason, and, therefore, were held competent to support a covenant to stand seised. (See Sanders, 434-440.) The statute of enrollments was never consid- ered as extending to this country, but has al- ways been deemed local, on account of its ref- erence to the courts of Westminster, and to certain officers unknown to us. The law, therefore, must continue to be here, as it was in England previous to that statute, when these distinctions did not exist; and thus the first deed will operate as a covenant to stand seised. The second deed is free from the objection against the first. The consideration in it be- ing general, and it appearing on the face of the instrument that the grantee is the son of the grantor, the consideration of blood is raised by implication, according to the authorities above cited, and the terms "give" and "grant" being sufficiently operative, this instrument may well enure as a covenant to stand seised. The objection that the seisin out of which the use to Philip was to be served was de- stroyed by the mortgage to Blatner, I consider 1. Sanders, 133. See, also, Dacon on Usc-s, 63. 250 as invalid. It is founded on the supposition of its being a future, contingent or executory use, and the authority cited from Sanders, 137, relates to such only. But in the present instance, Philip had a use in esse, a vested in- terest in remainder which could not be de- feated, and his father had nothing more than a seisin or possession according to his use, which was an interest for life only; and he could part with no greater estate in the prem- ises than he held. But had the use to Philip been a future, springing or executory use, it would still be doubtful whether the mortgage to Blatner destroyed the seisin out of *which it was to be served. What [*98 species of mortgage deed it was does not ap- pear, nor whether it was in existence and un- satisfied at the death of Jost. For if it was not such a deed as operated by transmutation of possession, or by transmutation of a use with warranty, it would not work a discon- tinuance, and:, a fortiori, would not destroy a seisin at common law; and if it was dis- charged, Jost would have been re-seised ac- cording to the old use. My opinion therefore is that the posted be delivered to the plaintiff. BENSON, J., concurred. LANSING, Ch. J. I concur in the opinion given by my brother Lewis. The original transaction between the parties presents them in the relation of father and son, disposed to make a settlement of the father's estate, to answer the exigencies and views of both. On the same day, and in pursuance of the same intent, the parties executed three distinct in- struments, relative to the same subject matter. The business was inartificially conducted ; but the intent is sufficiently evident. If these in- struments be taken collectively, the distinction between a valuable and pecuniary considera- tion fails in its application. In this view of the subject, I have no doubt that the plaintiff is entitled to recover. KENT, J. , and RADCMFF, J. , not having heard the argument in the cause, gave no opinion. Judgment for the plaintiff. Approved 11 Johns., 351 ; 15 Johns., 463 ; 3 Paige, 256 Cited in 3 Wend., 235 ; 9 Wend., 629 ; 22 Wend., 144 ; 2 Denio, 133; H. & D., 311; Sand. Ch., 264; 1 Paige, 459; 2 Paige, 265; 57 N. Y., 65; 8 Hun., 423; 11 Barb., 21 ; 13 Barb., 182 ; 17 Barb., 393 ; 1 Rob., 274 ; 1 Abb. N. S., 297. See 4 Mass., ia5 ; 12 Mass., 93. *LEFFINGWELL AND PIERPOINT [*99 v. WHITE. 1. Negotinhle- Instruments Time computed. 2. Id. Demand Protest Admission of Lia- bility. 3. Id. Indorsement Demand. In cases of bills of exchange and promissory notes, time is computed by calendar, and not by lunar months. Where the indorsor of a note before it became due, informed the holder that the maker had absconded, and that being secured for his re- sponsibility, he would give a new note, and re- quested time to pay, and in the meantime the noto fell due; it was held that the holder was not bound JOHNSON'S CASES, 1 . JACKSON, EX DEM. MOORE, v. VAN BERGEN. 1799 to make a demand on the maker, or to give notice to the indorsor. Where the declaration alleged a demand of payment in general terms, 'although often requested,' &c. it was held good, especially after verdict. THIS was an action of assumpsit, brought against the defendant, as indorsor of a promissory, note dated the 5th September, 1797, made by Miner & Servat to the defendant, and payable to him or order, six months after date, and indorsed by him to the plaintiffs. On the trial before Mr. Justice Benson, at the last Albany circuit, the note and indorse- ment were proved, and it appeared in evidence that in February, 1798, before the note be- came due, the plaintiffs' attorney, to whom it had been sent for collection, called on the de- fendant and informed him of the purpose for which he had received the note, and requested to have it secured, to which the defendant an- swered, that he would see Servat, one of the makers, and endeavour to make some arrange- ment with him to secure or satisfy the de- mand; that Miner, the other maker of the note, had left this State in the autumn of 1797, and had not since returned. On the 1st day of March, 1798, the defendant came to the plaint- iffs' attorney, and informed him that Servat had absconded; but that he, the defendant, was secured or indemnified for his responsi- bility, and requested time to pay the note; the defendant then offered to give a new note with an indorsor for the one in question, to which the plaintiffs' attorney assented, and pending the negotiation between them for that purpose, the time of payment of the present note ex- pired, without any attempt to demand pay- ment of the makers, after which the defendant refused to pay the note. A verdict was taken for the plaintiffs, sub- ject to the opinion of the court on the ques- tion, whether, under the circumstances of the the case, an actual demand of payment from the makers, and notiee to the indorsor were necessary. On the argument, two points were made: 1. Whether the six months were to be computed 1OO*] as lunar or calendar *months. If lunar, it was insisted that the time for the demand of payment, and notice to the defendant, had elapsed previous to the commencement of any negotiation between him and the plaintiffs' .attorney, and that the defendant, therefore, was discharged. 3d. If such time had elapsed, whether the .acts of the defendant amounts to a waiver of the necessity of a demand and notice. Mr. Beers, for the plaintiff. Mr. Bird, for the defendant. Per Curiam. In general, the period of a month is construed to mean a lunar month, unless it is otherwise expressed; but in the case of bills of exchange, the mode of comput- ing time is by calendar, and not lunar month. The same reason applies to promissory notes, which in many respects stand on the footing of bills, and are generally governed by the same rules. On the second point, we are of opinion that the pending negotiation between the parties superseded the necessity of a demand of pay- ., JOHNSON'S CAPES, 1. N. Y REP., BOOK 1. 99 ment and of notice. The defendant was fully apprised of his situation before, and at the time the note fell due. One of the makers was absent from the State, and the other had absconded. A formal demand and notice under such circumstances, could answer no valuable purpose. The defendant, sensible of this, by his own acts admitted his responsibil- ity, treated the note as his own, and negoti- ated for a further time of payment. By this conduct he waived the necessity of any de- mand or notice. Note. The defendant afterwards moved in arrest of judgment, on the ground that the first count in the declaration alleged a demand of payment in general terms, to wit: although often requested, &c., and did not aver a de- mand of payment from the makers on the last day of grace; and that the verdict being general on the several counts, must be arrested for the defect in the first count. Sed Per Curiam: There are precedents without the special averment of demand, and they are sufficient to warrant this form of declaring. Even if *the objection were good on [*1O1 demurrer, it is now too late. The fault in the first count of the declaration is no more than the defectively setting out of a title which is always cured by a verdict. The motion must ' be denied. Judgment for the plaintiffs. Cited in- 15 Johns., 120; 4 Wend., 513; 7 Wend., 168 10 Wend., 509 ; 11 Wend., 404 ; 5 Hill, 407 ; 3 Denio, 21 ; 13 Barb., 167 ; 20 Barb., 66 ; 32 Barb., 284 ; 53 Barb., 27 ; 12 Wheat., 188 ; 1 McLean, 310. JACKSON, ex dem. MOORE, v. VAN BERGEN. Ejectment Proof Moiety Possession. In an action of ejectment, the plaintiff gave evi- dence of a title to an undivided moiety of the prem- ises only, but a general verdict was taken; a motion for a new trial was refused, but the court ordered that the plaintiff, on the hnl>. fac. possess, should take possession of the moiety only. THIS was an action of ejectment, tried at the last sittings in Albany, before Mr. Jus- tice Benson. A general verdict was taken for the plaintiff, and it appeared that the plaintiff gave'evidence of title to an undivided moiety of the premises in question only. On this ground a motion was made for a new trial. Messrs. Emott and Van Vechten, for the plaint- iff. Mr. Spencer, for the defendant. Per Curiam. The motion is denied, but it is ordered that the plaintiff, on the hab. fac. possess. , take possession of an undivided moiety of. the premises only. Rule refused. Cited in 8 Cow., 437. 17 25 T 101 SUPREME COURT, STATK OP NEW YORK. 1799 PALMER v. GREEN. 1. Justice's Court Limitation of Adjournment. 2. Pleading In Abatement after Plea in chief. A justice has not power to adjourn a cause for a longer time than six days, without the consent of the parties. A plea in abatement after a plea in chief, is a nullity. IN error on certiorari to a justice's court. In this case several causes were assigned for error, but the following were principally re- lied upon, and no other was noticed by the court. 1. That the plaintiff in error, who was de- fendant below, pleaded two pleas in the ac- tion before the justice, to one of which the plainitff below did not reply, and no issue was taken upon it. 2. That the justice adjourned the trial of the cause before him for more than six days, without consent of the parties. 1O2*] *Per Curiam. With respect to the first objection, it appears that the first plea of the defendant below was a plea in chief to the merits of the action, and the second a plea in abatement which was not answered. The plea in abatement after a plea in chief was a nullity, and not necessary to be answered. But the second objection is fatal. A justice has no authority, by the ten pound act, to ad- journ the trial beyond six days, without the consent of the parties. The defendant below did not consent, nor did he appear at the trial. Judgment reversed. Followed 3 Caines, 172. Cited in-Col. & Cai., 493 ; 2 Cow., 472 ; 15 Hun., 43 ; 6 How. Pr., 449; 3 E. D. Smith, 128. FLEMING, Executor v. TYLER. Executor Nonsuit Variance Costs. An executor plaintiff, who was nonsuited for a variance between the declaration and the writing declared upon, was held not liable for the costs. THE plaintiff was nonsuited on the trial of the cause, and on showing cause why he should not pay costs, it appeared that the date of the writing on which the suit was brought was, through mistake, wrongly copied in the declaration, and the nonsuit, was granted on account of the variance; and the court re- fused to make the rule absolute. SPENCE v. WHITE. Set-off Costs Judgment less than $50. Where the plaintiff recovered less than $50, the defendant was allowed to set off his costs against the amount recovered. THE plaintiff having recovered less than fifty dollars, the defendant now moved to set off the costs against the sum recovered. The attorney for the plaintiff objected, because 258 the whole of his costs were due, and the plaintiff had become insolvent. Per Curiam. The objection is not well founded, and the rule must be granted. Mule granted. Cited in 8 Johns., 357 ; 9 How. Pr., 21 ; 8 Daly, 184 ; 1 B. D., 603. *HEYER 0. DENNING. [*1O3 Attorney as Agent only. It is improper practice in an attorney to appear - and act for a party in a suit, as agent merely, and not as attorney. rPHE plaintiff in this catise had proceeded to J- outlawry. One of the attorneys of this court gave notice of a retainer to the plaintiff, which notice was signed for, or on behalf of the defendant, and he declared verbally that he did not mean to appear as attorney. At the last term, however, he obtained a rule to set aside all the proceedings. Mr. Jones, for the plaintiff, now moved to- vacate the rule for irregularity. Per Curiam. The attorney on such a notice of appearance must be considered as a mere stranger, and could take no rule in the case- It is improper practice in any attorney to at. tempt to appear as agent, but not as attorney. As the defendant has not appeared or put in bail, we grant the motion with costs, to be paid by the attorney who acted for the defend- ant. CONCKLIN v. HART. Commission Aged and Infirm Witness. A commission may be issued to examine witnesses who are aged and infirm, before a commissioner, and the rule may be obtained at any time after the commencement of the suit. A PPLICATION was made to take the de- ll- positions of certain witnesses before one of the commissioners for taking affidavits, on the ground that they were so aged and infirm that they could not personally attend court on the trial of the cause. It was objected that the cause was not at issue, and that the practice was unpreced- ented. Per Curiam. There appears to be a reason- able ground for granting a commission in such a case, and the application may be made at. any time after the commencement of the suit. Rule granted. Cited in-30 How. Pr., 214; 7 Rob., 459. JOHNSON'S CASES, 1.. 1799 THE PEOPLE v. TOWNSEND. 104 1O4*] *THE PEOPLE r. TOWN SEND. 1. Oyer and Termimr New Trial. 2. Id. Cause removed not returnable. 3. Trial of Removed Cause. A court of oyer and terminer may award a new trial- Proceedings removed from the oyer and ter- miner, and filed here, cannot be sent back to that court. The trial in such case, may be either at bars or at the oyer and terminer, except in capital cases. AT the last Court of Oyer and Terminer in Dutchess County, the defendant was con- victed of perjury. Before judgment he ab- sconded, and afterwards voluntarily surrend- ered himself, but no judgment was pronounced. The judge before whom the prisoner was tried reported to this court that the verdict was given against evidence. Per Curium. There must be a new trial; and the judge who is to preside at the next Oyer and Terminer in Dutchess County will communicate this opinion to the justices of that court; in the meantime the prisoner must give bail for his appearance. The proceedings which have been brought up here by certiorari, not having been actually received, may be returned. If they had been filed in this court they could not have been sent back, but must have remained here. No form of process for returning them is to be found in the books. The court must have proceeded to try the defendant at bar, by a jury returned from Dutchess, or have sent the cause down to the next circuit, to be held in that county. We are inclined to think, how- ever, that in a capital case it would be other- wise, and that it could not be sent down for trial. 1 Cited in 5 Wend., 42 ; 1 Denio, 678 ; 20 N. Y., 548, 554 ' 2 Barb., 288 ; 1 Park., 370, 629 ; 5 Park., 645 ; 1 Wheel. C. P 497 "See 2 Barb., 282. LE CONTE v. PENDLETON. Pleading Nul tiel record Nil bebit Validity. In action of debt on a judgment obtained in the State of Georgia, the defendant pleaded nul tiel record and nil debet ; and the court ordered one of the pleas to be struck out. I^HIS was an action of debt on a judgment rendered in the State of Georgia. The de- claration contained but one count. The de- fendant pleaded, 1. Nul tiel record, and 2. Ml debet. with notice of special matter to be given in evidence. Mr. Hanson, in behalf of the plaintiff, moved that one of the pleas should be struck out. (He cited Doug., 6; 2 Dallas, 302; 1 Cromp. Prac., 173.) 1O5*] Mr.Pendleton,contra,relied on the *case of Walker v. Witter (Doug., 1). Per Curiam. Take your rule, that one only of the two pleas be allowed, and that the de- fendant, within four days after notice of the 1. See The People v. Ludlow (Col. Cases, 34). When a record is removed into the court of K. B. in England, it always remains there. (2 Saund., 27, and n. 2.) JOHNSON'S CASES, 1. rule, elect, or in his default the plaintiff may elect, which of the two pleas shall stand, and that the other be struck out. (See Col. Cases, 35, 73.) Rule granted. MURRAY v. SMITH. Costs Removed Gauge returned. Where a cause was removed from an inferior court by habeas corpus, and the plaintiff filed his declara- tion, and entered a rule to plead, and a .procedendo was issued for want of bail, the plaintiff is not en- titled to the costs of this court. THIS cause had been removed into this court from the Common Pleas by a habeas corpus, and the plaintiff filed a declaration and enter- ed a rule to plead. But no bail having been put in by the defendant in this court, a proce- dendo issued, and the plaintiff obtained a judg- ment in the Common Pleas. It was submitted to the court, whether the plaintiff was entitled to the costs in this court. Per Curiam. The plaintiff is not entitled to have the costs of the declaration and rule to plead, taxed against the defendant, as those proceedings were unnecessary, until the de- fendant had put in bail on the return of the habeas corpus. BILLINGS, Assignee, &c., v. SKUTT. Insolvent Debtor Discharge Entry of Judg- ment by Confession. Where a person had given a bond, with a warrant of attorney, and afterwards obtained his discharge under the insolvent act, and the person to whom the bond and warrant were given entered up judg- ment, the court, on motion, ordered the judgment to be set aside. A JUDGMENT by confession was entered A. against the defendant on a bond, executed by him to Ter Bush, by virtue of a warrant accompanying the bond, and directed to any attorney to confess judgment thereon. It was moved to set aside the judgment on the ground that the defendant after giving the bond, and before the judgment was entered up, became insolvent, and obtained a discharge under the Act for the Relief of Insolvent Debtors, passed the 13th April, 1786. Per Curiam. It appearing that the defend- ant obtained such discharge, the plaintiff, if he meant to contest its validity, ought to have brought a suit in the ordinary course, *on the bond. The judgment is a sur- [*lO(i prise on the defendant, and must, therefore, be set aside. Rule granted. Cited in 1 Barb. Ch., 350; 3 Barb. Ch., 383. 106 SUPREME COURT, STATE OF NEW YORK. 1799 JACKSON, ex dem. VROOMAN, SMITH. Ejectment Default Against Casual Ejector Appearance. , A judgment by default against the casual ejector, in ejectment, without previously entering the de- fault for not appearing, is irregular. IN this case the plaintiff entered a judgment by default at the last term, against the casual ejector, without having previously en- tered a default for the tenant's not appearing. It was moved on this ground to set aside the judgment as for irregularity. DAVIS v. OSTRANDER. Stamps Arbitration Bond Power of At- torney. Arbitration bonds, and powers of attorney, in suite depending in this court, need not be stamped. N. B. The act relative to stamp duties, has been since repealed. T1HIS was an action of debt on an arbitration JL bond, and the only question was whether the bond was necessary to be stamped. Per Curiam. It is not a bond for the pay- ment of money, and not within the act of Con- gress on this subject, and therefore need not be stamped. Judgment for the plaintiff. Per Curiam. NOTE. On the application of the clerk for The judgment was irregular the direction of the court on the question for not previously entering the default of the tenant. Our rule is express on this subject, and the tenant coming in time it cannot be dis- pensed with. Rvle granted with costs. 200 whether powers of attorney in suits depending in this court ought to be received without be- ing stamped. The court said that such powers need not be stamped, and that the above mentioned act applies to general letters of attorney only. JOHNSON'S CASES, 1. [END OF APRIL TERM.] CASES ADJUDGED IN THK SUPREME COURT OF JUDICATURE JULY XKRM:, IN THE YEAR 1799. 1O7*] *KENWORTHY v. HOPKINS. 1. Bill of Exchange Action on Second 'or Third after Protest. 2. Id. Action against Indorser Acceptor in Bankruptcy. 3. Id. To pay Debt Damages. Where one of a set of three bills of exchange on London, was protested for nonpayment ; it was held, that an action might be maintained here against the indorsor, on one of the set not protested, with the protest of the other ; that a proceeding against the acceptor under a commission of bankruptcy in Lon- don, did not discharge the right of action against the indorsor ; that where a bill, remitted to pay an antecedent debt, is returned protested, no damages are recoverable. Citations 1. Lex. Mer., 460 ; Kyd., 87 ; Lex. Mer., 481. THIS was an action on a bill of exchange by the indorsee against the indorsor. On the trial, the case appeared to be as follows: The bill was drawn by Eobert Murray & Co. on James V. Murray on London, in favour of the defendant. It was accepted by the drawee, and fell due on the 23d May, 1796, and was protested for non-payment on that day. The bill declared on and produced in evidence, was the second of a set of three bills. The hand- writing of the drawers and of the acceptor and indorsor were proved or admitted. Buckley was called as a witness to prove notice to the indorsor, and testified, that on the 20th August, 1796, he received from the plaintiff's agent the first of the said set of bills (which had not been accepted or protested) with the protest of the second of the set, in a letter dated 1st June, 1796, which bill and protest he presented to the defendant, on the day he received them, 1O8*] and requested payment of him; that *the defendant refused to pay, and assigned as a reason that the bill which had been accepted and protested, ought to have been returned. The witness, therefore, wrote to the plaintiff's agent for the protested bill, and on the 3d day JOHNSON'S CASES, 1. of February, 1797, received it, and presented it to the defendant for payment, who refused to pay it, alleging that it had been kept too long. It also appeared, that the bill had been re- mitted by the defendant for the payment of goods which he had purchased from the plaint- iff, and that the bill had been proved by the plaintiff, under a commission of bankruptcy against the acceptor in England. On the part of the defendant it was proved, that the drawers of the bill had become in- solvent before the 3d February, 1797, and evi- dence was also given tending to show, that if the protested bill had in the first instance been returned, the defendant after paying it would probably have been able to recover the amount from the drawers, which on account of their insolvency he was afterwards unable to do. A verdict was found for. the plaintiff for the amount of the bill, with twenty per cent, dam- ages, subject to the opinion of the court, whether the plaintiff was entitled to recover, and if so, whether he was entitled to the twenty per cent, damages. It was agreed that judgment for the plaintiff, or a nonsuit against against him, should be entered, or the verdict should be reduced as the court might direct. Mr. Hanson, for the plaintiff, contended that the notice to the defendant was sufficient. He said that it was not necessary to return the protested bill, which it may be essential to the holder to keep, in order to pursue his remedy against the acceptor. His proceeding against the acceptor under the commission of bank- ruptcy, was also for the benefit of all the pre- vious parties to the bill, and could not operate to his prejudice, or make the bill his own, any more than a suit against the acceptor would have done. On the point of damages, he sub- mitted to the court, whether this was a case to be excepted out of the general rule. *Mr.Riggs, for the defendant, contend- [*1O9 ed that the plaintiff ought not to recover; 1. Be- cause he had been guilty of neglect in not re- 201 109 SUPREME COURT, STATE OF NEW YORK. 1799 turning the protested bill within a reasonable time; and the defendant was not bound to pay on the return of the unaccepted bill and protest as above mentioned. 3d. Because the plaintiff had made the bill bin own, by proving it under a commission of bankruptcy against the acceptor after it had been dishonoured; and 3d. He insisted that if the plaintiff could re- cover, he was not entitled to the twenty per cent, damages, on a bill remitted by the de- fendant, to pay an antecedent debt due to the plaintiff. Per Curiam. We think the protest and no- tice of nonpayment to the defendant, were suf- ficient. It was not incumbent on the plaintiff to transmit the bill itself which was protested. He had a right to proceed against the acceptor in England, as well as against the drawer and indorsor here, and it might be essential to re- tain the bill for that purpose. If a different rule were to prevail, the security of such paper would be greatly impaired; for the holder of a bill in every case, where several parties living at a remote distance from each other should be liable upon it, would be driven to the ne- cessity of electing to send it to one only, and of relinquishing his demand against the others. The passage in Beawes (Lex. Mer., 460 ; Kyd, 87), which was cited on the argument, relates to the transmission of a bill by an agent or correspondent to his principal, the holder, and it is also qualified with the remark, " unless he (the agent) shall be ordered by him (the holder) to retain the bill, with a prospect of obtaining a discharge from the acceptor." In the other passage cited from the same book (Beawes' Lex. Mer.; 461), it is said that " no drawer or indorsor is bound to make restitution on sight of the protest alone, nor where one of the set has been accept- ed, on sight of the protest and unaccepted bill ; but he must give satisfactory security to the remitter, on his producing the protest only to make payment, when that and the accepted bill shall be presented." The security here HO*] *required shows the immediate re- sponsibility of the drawer and indorsor, and implies that the production of the accepted bill is necessary only when actual payment is demanded. The proceeding under the commission against the acceptor, could not discharge the responsibility of the antecedent parties. It was an act for the benefit of all concerned, and the pursuit of a remedy to which the plaintiff was entitled. Whether the money was sought to be recovered in that or in any other way, the effect must be the same, and cannot vary the rights of the parties. But the plaintiff ought not to be allowed the twenty per cent, damages : the practice on this point we believe to be settled. The reason for that allowance does not apply where a bill is remitted to pay an antecedent debt. JncLymentfor tfie plaintiff. TOWLE AND JACKSON . STEVENSON. 1. Agency Ratification Liability of Agent. 2. Evidence Letters of Party. An agent to whom a bill of exchange was remitted to be collected, though liable for his misconduct, in the first instance, was held to be discharged from his responsibility, by the principal's adopting his acts. Letters written by a party are not admissible evidence in his favor, thougn they may be evidence against him. THIS was an action on the case, brought to recover from the defendant the amount of a bill of exchange, of which the plaintiffs (who were merchants residing in London) were the holders, and which was remitted by them to the defendant, who resided in New York, to be collected on their account. The bill was drawn by Archibald Ponton, also residing in New York, on Alexander Ponton, of Edin- burgh, in favor of one M'Gregor, of New York, for 2151. sterling, dated in September, 1794, payable 60 days after sight, and was in- dorsed by M'Gregor. On the trial, before Mr. Justice Benson, at a cir- cuit, held in the City of New York, it appeared that the bill had been regularly protested for nonacceptance and nonpayment; and it was ad- mitted to have been received by the defendant, for the purpose above mentioned, on or before the 19th May, 1795; on that day the defendant wrote to the plaintiffs, acknowledging the receipt of the bill, and informing them that he immediately presented *it to M'Gregor, [*1 1 1 the indorsor, for payment, and that Ponton, the drawer, had conveyed to M'Gregor a house in New York, as security for his indorsement, and that the house had been advertised and sold at a credit of sixty days for the purchase money, at the end of which time, he would receive and transmit the amount of the* bill to the plaintiff. It also appeared, that the de- fendant, as the friend of M'Gregor, and in order to enable him to sell the house according to the terms of the trust . upon which it was conveyed, had delivered up the said bill to him, which was taken up by Ponton, the drawer, as being paid by the proceeds of the sale of the house. It was also admitted, that the bill was so delivered up without the con- sent of the plaintiffs, and that M'Gregor was solvent, and continued in good credit till the year 1798. On the part of the defendant it was proved or admitted, that in the summer of 1796, he went to England and returned in the autumn of the same year; that when in England, to wit, on the 12th September, 1796, he delivered to the plaintiffs a letter addressed to M'Gregor, requesting him to pay the amount of the bill to the plaintiffs, it being their property; that the plaintiffs inclosed the same in another let- ter of the same date, written by them to M'Gregor, in which they urged him to remit the amount without delay, and informed him that they had adopted the friendly mode of writing to him for an immediate remittance in preference to applying to any other of their Approved 4 Johns., 30. Discussed 15 Wend., 529. Cited in 4 How. (U. S.), 282 ; 1 McLean, 94 ; 3 Mc- Lean, 578. 262 NOTE. Principal and agent. Acts of agents adapted bj/ acquiescence of principal. See note to Cairnes v. Bleecker, 12 Johns, (this edition), 300. JOHNSON'S CASES, 1. 1799 JACKSON, EX DEM, McCREA, v. DUNLAP. Ill friends. After the defendant's return to America, to wit, on the 8th June, 1797, the plaintiffs again wrote to the defendant, inform- ing him that they had not yet received the amount of the bill from M'Gregor, and ear- nestly requesting him to obtain payment from M'Gregor, and if it was not paid, to take every legal step to recover the money, at the same time complaining of ill treatment from M'Gregor, and expressing their reliance on the defendant's attention to their interest; but no answer had been given to these letters of the plaintiffs either by M'Gregor or the de- fendant. The plaintiffs had given notice to the de- fendant, that he would be required to produce 112*] in evidence certain other Blotters re- ceived by him from the plaintiffs, and on the trial called upon the defendant to produce them, which he refused to do. The plaintiffs then offered to prove the contents of such let- ters by other testimony, which was objected to, and overruled. On this evidence, the judge at the trial was of opinion, that although the defendant had in the first instance made himself liable to the plaintiff, by delivering up the bill to M'Gregor, still the plaintiffs by their subsequent conduct had ratified his acts, and thereby discharged him from his responsibility, and' directed the jury accordingly. A verdict was found for the defendant. On the part of the plaintiffs a motion was made for a new trial on the following grounds: 1. That proof of the contents of the plaint- iffs' letters to the defendant, which he had no- tice to produce, ought to have been admitted in connection with the other letters read by him. 2. That the defendant continued liable, not- withstanding the subsequent acts of the plaint- iffs; and that the judge misdirected the jury. Mr. D. A. Offden for the plaintiff. Mr. Trovp for the defendant. LANSING, Ch. J., delivered the opinion of the court: It is clear that the acts of a party cannot be evidence in his favor when offered by himself. The letters of the plaintiffs called for by them- selves, were, therefore, properly excluded. On the second point, we concur in the opin- ion delivered at the trial. Although the con- duct of the defendant in the first instance, by giving credit t to M'Gregor, and delivering to him the bill without authority would have made him liable to the plaintiffs, they after- wards waived his responsibility by ratifying his acts. There does not appear to have been any concealment on the part of the defendant. After his arrival in England, it is to be pre- sumed that the plaintiffs were made acquaint- ed with the situation in which the business stood. They certainly knew the delay which had taken place. Instead of censuring the defendant, or informing him that they sup- 1 13*] posed he had neglected *their interest, they undertook by a direct correspondence with M'Gregor, to obtain satisfaction from him, and informed him that they had adopted the friendly mode of writing for an immme- diate remittance, in preference to applying to JOHNSON'S CASES, 1. any other of their friends on the occasion; thereby tacitly approving of the confidence the defendant had placed in him, though in sfrong terms complaining of M'Gregor's neg- lect. This was in June, 1796, and M'Gregor re- mained solvent till the beginning of 1798. After the defendant's return to New York, in June, 1797, the plaintiffs again wrote to the de- fendant, requesting him to obtain payment from M'Gregor, and that if he did not pay, to take every legal step to recover the money, at the same time complaining of ill treatment from M'Gregor, but expressing the reliance on the defendant's attention to their interest. This letter also plainly implies that they ap- proved of the defendand's previous conduct, and considered M'Gregor only as responsible. The defendant did not answer this letter, but the plaintiffs having taken the business into their own hands, and thereby discharged him from his agency, he was not under a legal ob- ligation to answer it. If the plaintiffs had in the first instance, on being informed of the situation of the debt, given notice to the de- fendant that they intended to hold him re- sponsible all the time from the 12th Septem- ber, 1796, to the period of M'Gregor's insolv- ency, would have been allowed him to prose- cute the payment, and seek his indemnity. Instead of doing this, they made feeble at- tempts to obtain satisfaction from M'Gregor, and these having failed, they now wish to re- sort to the defendant. After their long and repeated acquiescence in his conduct, we are of opinion that this ought not to be permitted, and that, therefore, the direction of the judge at the trial, and the verdict upon the evidence, were right. Rule refused. Cited in 1 Calnes, 510 ; 12 Johns., 305. * JACKSON, ex dem. M'CREA, [*114 DUNLAP. Deed As Security Delivery. Where a deed was duly executed and acknowl- edged by the grantor, but retained by him, with the consent of the grantee, by way of security, until the consideration money was paid, and before the money was paid the grantor died, having' devised the premises by his last will ; and the deed was found among 1 his papers, it was held that there was no actual delivery to, or acceptance of the deed by the srrantee ; therefore, nothing- passed to him by it. THIS was an action of ejectment for the re- covery of certain premises situate in the seventh ward of the city of New York. NOTE. Deed, delivery, acceptance. Retention b.y grantor; test in such case is, can the grantee get possession or enforce against grantor's will. Roosevelt v. Hubbard, 6 Barb., 190: Brevard v. Neely, 2 Sneed (Tenn.), 164; Cook v. Brown, at N. H., 460; Stilwell v. Hubbard, 20 Wend., 44. Deed containing covenants in favor of grantor, but apparently consumated unconditionally, held valid. notwithstanding 1 retention by grantor. 4 Kent, 445 ; Scrughan v. Wood, 15 Wend., 545 ; McLean v. Brit- ton, 19 Barb., 450; Blakeman v. Byrnside, 7 Ark. (2 English), 505. 268 114 SUPREME COURT, STATE OF NEW YORK. 1799 On the trial, before Mr. Justice Radcliff, at the New York Circuit, in March, 1799, both parties deduced their title from Stephen M'Crea, late of the said city, deceased ; and it was proved that he died in possession of the prem- ises some time before the commencement of the action. The plaintiff produced in evidence the will of M'Crea, which was proved to have been duly executed, and by which he devised the premises in question to the lessors. The defendant then called on the plaintiff to produce in evidence a deed from the testa- tor to one Wareham, granting the premises to the latter in fee, in order to show a title out of the lessors. The deed was produced and was dated the 6th August, 1795, and appeared to be a conveyance of two lots of ground includ- ing the premises, in the usual form, from the testator and his wife to Wareham, in fee. By an indorsement upon the deed it also appeared to have been acknowledged at the time of its execution, by the grantors, in the usual form, before a Master in. Chancery, who was like- wise a subscribing witness thereto. The plaintiff then examined James M'Crea, who was the other subscribing witness to the deed. He testified that he lived in the family of the testator, and acted as his clerk, before and at the time of the date of the said deed, and until his death, and continued to live in the family subsequent to his death; that the testator agreed with Wareham to sell him the premises, described in the deed, together with some other grounds not comprehended in it, and gave him a title for the same when the consideration money should be paid; that in pursuance of this agreement the deed was pre- 115*] pared by the witness, and executed *at the testator's house in the presence of the wit- ness, and the Master in Chancery who had certified the acknowledgment, with the usual formalities; but it was at the same time agreed, between the testator and Wareham, that the testator should retain the deed until the con- sideration money was paid, and Wareham said that he would not take the deed until the money was paid; he further testified that the deed remained in the hands of the testator during his life, and was found after his death, among his papers in the hands of his widow; that there was some money paid by Wareham to the testator on account of the grounds agreed to be sold as above mentioned; but a great part of the consideration money remain- ed unpaid, and part of the ground not com- prehended in the deed, had been conveyed to Wareham by the testator pursuant to the agreement. A verdict was taken for the plaintiff, sub- ject to the opinion of the court, whether under the circumstances of this case, the deed in question passed the estate of the testator in the premises to Wareham. If it did, then a non- suit was to be entered. Mr. Biggs for the plaintiff. Mr. Hamilton for the defendant. LANSING, Ch. J. In determining this case, it is necessary to consider the intent of the par- ties as to the deed in question. From the whole transaction, it was evidently their in- tent that W r areham, the purchaser, should not have the land until the consideration money was paid. All the acts of the parties were directed to this object, and if it can be main- tained consistently with established principles, every reasonable construction in its favor ought to be admitted. It is not necessary, in my opinion, to enter into the doctrine of equitable mortgages. It is true the deed was executed, attested, and acknowledged, and every step preparatory to the consummation of the title had been regu- larly taken; but in every stage the deed re- mained in the power of the grantor, and after all the formalities had *been complied [*116 with, it was agreed that the grantor should retain it in his hands until the consideration money should be paid, and Wareham declared he would not accept it until that was done. Although formally executed, the deed was, therefore, in fact not delivered. It was in substance a conditional execution, and not otherwise claimed or accepted by the grantee. It is also essential to the legal operation of a deed, that the grantee assents to receive it. It cannot be imposed on him, and there can be ! no delivery without an acceptance. On this I ground, for the want of a delivery in fact, I am I of opinion that the execution of the deed on j strict principles was inoperative, and did not pass the estate to the grantee. RADCLIFF, BENSON, and LEWIS, JJ., con- curred. KENT, J. Here was a delivery in due form, and duly acknowledged before an officer at- tending for the piirpose. The intent of the parties was, that the deed should be comple- ted, and should then be retained by the grantor by way of security till payment. This was the creation of an equitable lien in the grantor; but such a lien or equitable mortgage cannot be set up at law, as a legal estate. I am, therefore, of opinion that the plaintiff ought to recover. Jucfgment for the plaintiff. Cited in 12 Johns., 422 ; 20 Johns., 188 : 6 Cow., 620 ; 4 Wend., 376; 15 Wend., 660; 1 Johns. Ch., 255; 21 N. Y., 584 ; 54 N. Y., 626 ; 19 Barb., 247 ; 46 Barb., 161 ; 50 How. Pr., 396 ; 44 N. Y. Sup., 219 ; 42 N. J. Law, 282 ; 38 Mich., 525. Actual delivery unnecessary, if it is the under- standing of the parties that the delivery is made. 4 Kent, 45o ; Scrug-ham v. Wood, above cited ; Jaques v. M. E. Church, 17 Johns., 548: Goodrich v. Walker, post, 250 ; Doe v. Knight, 5 B. & C., 671, D. & R., 348 ; Hall v. Palmer, 8 Jur., 459 ; 13 Law J. Chy., 353 ; 3 Hare, 532; Thompson v. Hammond, 1 Edw. Ch., 497 ; Hammell v. Hammell. 19 Ohio, 17 ; Farrar v. Bridges, 5 Humph. (Tenn.), 411 ; Rivard v. Walker, 39 111., 413 ; Warren v. Sweet, 31 N. H., 332 ; Dayton v. New- man, 19 Pa. St., 194. Acceptance presumed from the fact of delivery or 264 the beneficial nature of the grant, unless there are facts to rebut such presumption. Jackson v. Bodle, 30 Johns., 184 ; Spencer v. Carr, 45 N. Y., 406 ; Church v. Oilman, 15 Wend., 656 ; Tibbals v. Jacobs, 31 Conn., 428; Hedge v. Drew, 12 Pick., 141. Com- pare, also, Howe v. Dewing 1 , 2 Gray, 476, where deed was delivered on agreement to return or pay con- sideration on demand. As to delivery of deeds after death of grantor, see note to Stilwell v. Hubbard, 20 Wend., 44, in this edition. JOHNSON'S CASES, 1. 1799 M. JOHNSON v. CAULKINS. 116 M. JOHNSON v. CAULKINS. 1. Evidence Breach of Promise to Marry Li- centious conduct of Plaintiff. 2, Id. Id. Offer to Marry. In an action for a breach of a promise of mar- riage, the defendant was allowed to give in evi- dence in mitigation of damages, the licentious con- duct of the plaintiff, without any limitation as to the time he made the promise to her, or to the period of the proposed marriage. In such a case, it is not necessary for the (female) plaintiff to prove a previous offer to marry the defendant. THIS was an action on a promise of mar- riage. Plea the general issue. The cause was tried before Mr. Chief Justice Lansing, at the last sittings in Albany. The promise and breach were fully proved; and it appeared that after the promise, to wit, on the 9th July, 1797 the defendant left the town of Troy, 117*] where both parties resided, and *went to the West Indies; that shortly after his de- parture, the plaintiff was discovered to be in a state of pregnancy, and was delivered of a child on the 4th April, 1798; that the defend- ant returned to Troy, in the month of June, 1798, when he acknowledged the child to be his; that he again left Troy in July of the same year, and went to New London, for five or six weeks, having previously agreed to be married to the plaintiff on his return. The defendant offered testimony to prove licentious conduct in the plaintiff, with other persons, and her general reputation subse- quent to July, 1798, which was objected to by the plaintiff, and overruled by the judge. The defendant was, however, permitted to give evidence of her conduct and reputation previous to the expiration of the six weeks after he left Troy, in July, 1798, when it was agreed that the marriage should take place; but no proof applicable to her subsequent character or conduct was admitted. The de- fendant then gave evidence to show that the plaintiff's character as to sobriety and virtue before that period was not good, which was opposed by proof on the part of the plaintiff, and the weight of evidence in this respect was in favor of the plaintiff. A verdict was found for the plaintiff for $1,000 damages. The defendant applied for a new trial, on the ground that he ought to have been permitted to prove other acts of licentiousness in the plaintiff, and her general character, without being restrained to the period above mentioned. Mr. Bliss for the plaintiff. Mr. Woodworth for the defendant. BENSON, J. I am of opinion that, with a view to the question of damages, the defend- ant ought to have been permitted to show licentious conduct in the plaintiff, and her general character as to sobriety and virtue, without any limitation of time. The object of this action is not merely a compensation for the immediate injury sustained, but dam- ages for the loss of reputation. This must necessarily depend on the general conduct of 118*] the party subsequent *to, as well as previous to the injury complained of, and the damages to be recovered, as in actions for defamation, ought to be regulated by all the JOHNSON'S CASES, 1. circumstances of the case. The proof of reputation cannot depend on time; it is a question which is general in its nature, and the inquiry respecting it, when material, must be general. RADCLIFF, KENT, and LEWIS., JJ, con- curred. LANSING, Ch. J., dissented. The substance of his opinion was as follows: It is not de- nied that an inquiry into the general conduct and character of the plaintiff was proper. My impression was, that the instant the de- fendant had decidedly abandoned the plaint- iff, which was to be collected from his ab- senting himself contrary to his agreement, he precluded himself from any interest in her character or conduct; and that the inquiries ought, therefore, to be restricted to that period. If proof had not been given that the plaintiff had declared that she expected the defendant's return in five or six weeks, I should, on this principle, have restricted the defendant to the time he left Troy, unless he could have shown that he left it animo reter- tendi. The damages are, in every instance of vin- dictive actions, presumed to be regulated by the nature of the injury received, and that complained of by the plaintiff is one of the deepest dye. The defendant ought not to be prmitted to avail himself of subsequent circumstances, which his own abandoned conduct might have produced. With respect to the particular case now under consideration, there are some reasons to question the respectability of the plaintiff's character, and some that operate very forcibly in her favor. [Here the Chief Justice recapitulated the facts as proved at the trial.] Under this view, if the principles to govern this case were now to be fixed, without being influenced by authority, I should doubt whether the defendant ought to be permitted *to question the plaintiff's general [*119 reputation at all, and whether he ought not to have been strictly limited to such particular instances of intemperance, incontinence, or im- prudence, not the objects of general observa- tion, as would excuse his gross violation of a deliberate contract entered into under circum- stances which irresistibly imposed upon him a knowledge of her general conduct and char- acter. Something was said respecting the damages, which were alleged to be excessive. The jury are the proper judges of the damages, and though I am not prepared to say that there is no case, however outrageous in actions of this kind, in which the court will not inter- pose to correct a verdict on that ground, I think it ought certainly never to be done, unless the inequality between the injury and com- pensation is extreme. I am not perfectly satisfied with the verdict; I think less damages would have been nearer the line of just retri- bution; but considering all the circumstances, I do not think them extravagant. Upon the whole, on this point, I am against a new trial. 265 119 SUPREME COURT, STATE OF NEW YORK. 1799 Another point has been raised. It has been said that the plaintiff did not show an offer of marriage on her part. We are all of opinion that there is no ground for this objection, the defendant having put it out of the plaintiff's power to make the offer, by absconding. It cannot, therefore, be necessary to inquire whether it is imposed on the plaintiff in cases of this kind, generally to prove such an offer. BENSON, J., added on the last point, in which the rest of the court concurred, that a tender of marriage was unnecessary. New trial granted. Cited in-8 Cow., 815; 7 Cow., 23; 24 N. Y., 258; 38 Barb., 418 ; 62 Barb., 489 ; 71 Penn. St., 245. ISO*] *GAHN AND MUMFORD v. BROOME. Marine Insurance Total Loss Drawback. In an action on an open policy of Insurance on goods at and from Baltimore to the Havanna, the insured recovered for a total loss, and it was held that the plaintiffs were entitled to recover the in- voice price of the goods, without any deduction for the drawback allowed on exportation. THIS was an action on a policy of insurance upon the cargo of the American ship M'Gilva, Driscoll, master, at and from Balti- more to the Havanna, warranted American property. It was an open policy, and sub- scribed by the defendant, for $7,000, at a premium of 10 per cent. The plaintiffs de- clared for a total loss by the perils of the sea. On the trial before Mr. Justice Kent, at the last March Circuit in the city of New York, the policy was admitted, and it was also ad- mitted that the ship sailed on the voyage in- sured, laden with 11,214 bushels of salt, the property of the master, Driscoll, who was an American, and for whose benefit the in- surance was effected; that at the time of effecting the insurance, the plaintiffs delivered to the defendant an account of the salt, stating the price at which it had been purchased, with the charges thereon, and the premium of insurance proposed to be given, making in the aggregate the sum of $6,908.18, as the interest intended to be insured, and which was thereupon insured as being worth $7,000; that the salt was wholly lost, as stated in the declaration ; that notice of the loss was given on the 27th June, 1798, and proof thereof, and of the interest of the assured, and an aban- donment were at the same time duly made to the defendant. It was further admitted, that the owner of the salt was entitled to a drawback of $3,183, on exportation, for which a debenture was given by the collector of the port of Balti- more, but at the time of receiving the deben- ture, Driscoll, the owner, was obliged to give a bond with sufficient sureties to the collector, in double the amount of the drawback, con- ditioned to produce to the collector certain proofs of the delivery 6f the said salt at some place without the United States, as by law re- quired; that *these proofs were neces- [*121 sary to be made within one year from the date of the bond; but that in case of loss by the dangers of the sea, or by capture, other proofs were allowed to be substituted, to procure a discharge of the bond; that such proofs had been supplied, and the bond was cancelled; and that Driscoll had received the amount of the debenture. A verdict was taken for a total loss, on the sum insured, subject to the opinion of the court, whether the plaintiffs were entitled to recover the full price of the goods without de- ducting the amount of the debenture, and if not, that the verdict should be reduced ac- cordingly. Mr. 8. Jones, Jun., for theplaintiff, insisted that they were entitled to recover the full price of the goods at the place of exportation, which was the sum subscribed by the defendant. The drawback did not constitute a part of the prize in the market here, but was intended as a bounty to the merchant, and, therefore, ought not to operate in favor of the insurer, to diminish his responsibility. Mr. B. Livingston, for the defendant. On an open policy the prime cost of the goods is the sum to be recovered. The amount of the de- benture was a certain deduction, which the owner was at all events entitled to receive from the government, and so far diminish the value to the insurer. The owner,therefore, had no interest to be insured equal to the sum in the policy. The real prize or value was that sum, deducting the debenture. If more were al- lowed, the assured, instead of obtaining an in- demnity merely, which is the sole object of the contract, would gain by the event, which would afford a strong temptation to fraud. LANSING, Ch.. T., delivered the opinion of the court: The general rule is settled and admitted, that in an open policy, the invoice price is the value which, upon a total loss, the insured is entitled to recover. The defendant contends, that ou account of the drawback, this case oucht to form an objection to the rule. *The drawback is intended as a [*122 benefit to the merchant, on the exportation of certain goods, and not for the advantage of the assurer; and although it may enter into the estimate of the value of goods, with a view to exportation, it is no part of their act- ual price in the market here. The invoice price has been adopted, as af- fording not only an equitable but a certain rule, not influenced by the fluctuations of value, which consequent circumstances may produce. If the drawback were also certain, and in every event payable to the shipper, the exception in this case would seem to be rea- sonable; but that is not the fact. To entitle the goods to drawback, they cannot be re- landed within the United States, and the ship- per is obliged to give security that they shall not be relanded. The drawback is, therefore, contingent, and in the case of relanding by barratry, the assured would not only lose the amount of the drawback, but be exposed to inconvenience and additional loss on account of the security. Against the risk of barratry he would surely be unprotected; and yet, that JOHNSON'S ('APES, 1. 1799 WILDE v. CANTILLON. 122 is a risk within the express terms of the policy .and for which the assurer has received his premium. To permit the drawback to reduce the value to be recovered would, therefore, confer a benefit on the insurer, and impose on the in- sured a burden and a risk without an indem- nity, a burden by giving the security, and a risk in the case of barratry, as has been men- tioned. The plaintiffs may be gainers by the event, and temptations to fraud may in some cases exist; but we cannot depart from the sense of the contract, and the rule which has been long established. Judgment for the plaintiff. Cited in 7 Johns., 354; 10 Johns., 78; 38 N. Y. Super., 348. 123*] *WILDE t>. CANTILLON. Irespass Tenant by Sufferance. A tenant at sufferance cannot maintain an action of trespass against his landlord. Citation-5 Bac., 163. THIS was an action of trespass quare clau- wmfregit, &c., turning the plaintiff out of possession, and reaping and carrying; away a crop of wheat, and other injuries. Plea, the general issue. The cause was tried before Mr. Justice Lewis at the last September circuit, in the County of Ulster. It appeared in evidence -that on the 18th May, 1797, eight persons entered the house occupied by the plaintiff, in the town of New Paltz, in said county, who tore down a part of it, turned him out of possession, and carried his effects into the public highway, and put one Samuel Buchanan into possession of the house, and of a farm which the plaint- iff had occupied with it, whereby the plaintiff lost his crop, as stated in the declaration, which was gathered by Buchanan; that Bu- chanan afterwards held the premises as a ten- ant under the defendant, and that the defend- ant, in a conversation with others, claimed the house and farm to be his property, and said that he had obtained the possession and would keep it. On the part of the defendant it appeared that the plaintiff had possessed the house and farm as a tenant to the defendant, under a parol demise for three years; that the term had expired previous to the injury complained of, and that the plaintiff had held over, and at- torned to a stranger; that the defendant told the plaintiff, in the winter preceding, that he had let the farm to another person, and that the plaintiff could not have it again. It also appeared that the plaintiff, in a conver- sation with Buchanan, inquired of him if he had taken the farm from the defendant, and that he answered he had thought of it, and asked the plaintiff whether he would give up the possession, to which the plaintiff re- plied that he would deliver it up at any time, but wished to be permitted to remain until he had gathered his crop, and finished the fence which he had contracted with the defendant to erect. To this Buchanan consented, observ- JOHNSON'S CASES, 1. ing that he *was a single man, and [*124 could in the meantime live with the plaintiff. The counsel for the defendant moved for a nonsuit, on the ground that the defendant was justifiable in putting the plaintiff out of possession, and that the plaintiff could not maintain this action ; but the motion was over- ruled by the judge, and the cause submitted to the jury, with a direction as to the crop of wheat, that the plaintiff was not entitled to recover, unless from the evidence they were satisfied that he had a right to remain on the premises, and to cut and take away the crop, in consequence of his agreement with Buchan- an, as the tenant of the defendant. The jury found a verdict for the plaintiff for $81 damages. At the last term a motion was made on the part of the defendant for a new trial, on two grounds: 1st. That the plaintiff, after the expiration of the parol lease, was tenant at sufferance to the defendant, and as such, could not main- tain an action of trespass against his landlord. 2d. That in relation to the crop, nothing had appeared in evidence to authorize a recovery against the defendant. Mr. 8. Smith for the plaintiff. Mr. Emott for the defendant. LANSING, Ch.J., delivered the opinion of the court: The first objection, in our opinion, is de- cisive. After the expiration of the term, the plaintiff became a tenant at sufferance to the defendant, and his attornment to a stranger was void by the statute. The manner in which he was dispossessed was violent and ought not to be countenanced; but he can- not have a remedy in this action. A mere tenant at sufferance cannot maintain trespass against his landlord (5 Bac., 162), as against him he has no legal right of possession on which to found this action. The plaintiff's title to recover is, therefore, radically defect- ive; and on this ground we think the verdict ought to be set aside. RADCLJFF, J., having formerly been con- cerned as counsel in the cause, gave no opin- Rule granted. Cited in^l Johns., 157 ; 13 Johns., 236 ; 11 Wend., 619; 14 N. Y., 66. *JACKSON, ex dem. BRONCK, [*125 v. CRYSLER. 1. Ejectment Entry. 2. Deed Condition Waiver. In an action of ejectment, it was held that an act- ual entry was not necessary in any case, except to avoid a fine. Xo parol assent, or silent acquiescence, will destroy the effect of a condition contained in a deed, or amount to a waiver of the forfeiture. Citation 1. 2Ld. Raym.,750; lSalk.,250; 1 Vent., 248 ; 2 Vent,, 332 ; 3 Burr., 1897 ; Doug., 486. Shep- pard's Touchstone, 117. npHIS was an action of ejectment, brought -L to recover certain premises in the posses- 207 125 SUPREME COURT, STATE OF NEW YORK. 1799 sion of the defendant, situate in the town of Bethlehem, in the County of Albany. The cause was tried before Mr. Justice Ben- son, at the last sittings in Albany. It appear- ed that the lessor of the plaintiff by a deed, bearing date the 3d May, 1795, granted a tract of land, including the premises, to Hendrick Bronck in fee, "upon condition, nevertheless, that the said Hendrick Bronck, his heirs and assigns, should maintain the lessor of the plaintiff and his wife in a suitable manner, during their natural lives, and should also pay the debts of the lessor, and in default of which it should be lawful for the lessor to re-enter," &c. H. Bronck afterwards conveyed the premises to the defendant ; and this action was brought upon a forfeiture of the condition above mentioned. It further appeared that the sale to the de- fendant was made by H. Bronck, for the pur- pose of enabling him to discharge the debts of the lessor of the plaintiff, who agreed with him as to the propriety of a sale of part of the tract for that purpose, but objected to the sale of the particular quantity or parcel actually conveyed to the defendant. The agreement between H. Bronck and the defendant for the sale of the premises was, however, completed, and carried into effect ; and the lessor being apprised of it before the execution of the deed to the defendant, did not express any objection to it ; but continued with his family to reside on the residue of the tract. The weight of evidence as to the perform- ance of that part of the condition which re- lated to the maintenance of the lessor of the plaintiff and his wife was conceded to be against the defendant ; but no actual entry into the premises for the forfeiture was shown on the part of the lessor of the plaintiff. A verdict was taken for the plaintiff, subject to the opinion of the court on the whole case. 126*] *Qn the argument two questions were made: 1. Whether an actual entry was neces- sary to be shown in order to entitle the plaint- iff to recover. 2. If not, whether the lessor, having pre- viously assented to and acquiesced in the sale made to the defendant (which was contended to be the result of the evidence), was not there- by precluded from a recovery. Mr. Emott for the plaintiff. Mr. Spencer for the defendant. Per Curiam. As to the first point, there was formerly much contrarieU r in the cases on this subject ; but it seems to ue settled by re- peated decisions (2 Ld. Raym., 750; 1 Salk., 250; S. C., 1 Vent. 248 ; 2 Vent. 332 ; 3 Burr., 1897 ; Doug. , 486), for near a century, at the confession of lease, entry, and ouster, is sufficient to maintain an ejectment for a con- dition broken, and that an actual entry is not necessary to be shown in any case, except to avoid a fine. As to the second point, it does not appear that any fraud or concealment was practised by the lessor of the plaintiff to entrap the de- fendant. The rule of caveat emptor, therefore, applies. It was incumbent on the defendant to examine the title. The consent of the lessor, if proved, was ineffectual, unless he actually relinquished his right. No parol assent or 268 silent acquiescence can destroy the effect of an express condition contained in a deed. (Shep. Touch., 117.) The condition, therefore, ac- companied the lands in the hands of the de- fendant and subjected him to the forfeiture. In some cases, particular acts may waive a forfeiture by affirming the continuance of an estate, after a condition broken ; but these are acts done by the grantor or lessor, after a for- feiture accrued, and for his benefit. No parol assent will amount to such a waiver. Judgment far the plaintiff. Cited in 53 Barb., 396 ; 45 Ind., 567. *CONROE K. BIRDSALL. [* 1 2 7 1. Infancy Deeds Void and Voidable. 2. Id. Bond False age given. All deeds of an infant which do not take effect by delivery of his hand are merely void, and all such as do take effect by delivery of his hand are voidable. Though an infant at the time of making- a bond, fraudulently alleges that he was of full age, yet the bond was, nevertheless, held to be void at law. Citation Perk., 12 ; 3 Burr., 1804. 2 Eq. Cas. Abr.. 489 ; 9 Mot., 38 ; 9 Viner Abr., 415. THIS was an action of debt on a bond. The defendant pleaded infancy at the time of executing the bond, to which the plaintiff re- plied, and issue was taken on that fact. The cause was tried before Mr. Justice Lewis, at the last Dutchess circuit, when the defendant supported his plea by proving that at the time of giving the bond he was no more than 20 NOTE. Acts of an infant, virid or voidable. Alle- gation by an infant that he is of full age contracts made upon such representations respomihttitu. Much confusion exists as to what deeds and con- tracts of an infant are void and what voidable. In Robinson v. Weeks (56 Me., 106), it is said contracts of infants are of three classes. 1. Binding 1 ; if for necessaries at fair and just rates. 2. Void; if mani- festly and necessarily prejudicial as of suretyship, gift, naked release, appointment of agents, confes- sion of judgment or the like. 3. Voidable; when beneficial but not for necessaries. To substantially the same effect, see Wheaton v. East, 5 Yerg. (Tenn.), 41 ; Oliver v. Hondlet, 13 Mass., 339 ; Philpot v. Bing- ham, 55 Ala., 4*5 ; Bool v. Mix, 17 Wend., 119. See, also, Adams v. Ross, 30 N. J. L., 505; Swasey v. Vanderheyden, 10 Johns., 33 : Goodsell v. Myers, 3 Wend., 481. In 1 Parsons on Contracts, p. 328, Williams v. Moore, (11 M. & W., 256) is quoted with approval. The langnage of that case is the promise of an in- fant is not void in any case unless the infant chooses to plead his infancy." (See note b., 1 Parsons on Contracts, 329, and cases cited.) Upon the whole, it is thought the distinction of void or voidable as ap- plied to the contracts of infants and their ratifica- tion is of little value. The current of authority also seems to be in that direction. To say, as do some cases, that a contract is void or voidable at the elec- tion of the infant, or that if it is beneficial it is void- able merely, while if the contrary, it is void, has little meaning. See Parsons on Contracts, above cited ; Srain v. Wright, 7 Ga., 571 ; Bryan v. Walton, 14 Ga., 205: Bazenan v. Browning, 31 Ark., 373, 4; Slocum v. Hooker, 13 Barb., 536 ; Tucker v. Moreland, 10 Pet., 58. See Philpot v. Binghum, above cited : 1 Am. Lead. Cas., 256. It is impossible to reconcile all the authorities upon the question of the effect of fraudulent repre- sentations by an infant as to his age. There is per- haps no better statement of the general doctrine as to infants' liability than the following : "An infant is liable in an action ex delicto for an actual and willful fraud only in cases in which the form of ac- tion does not suppose that a contract has existed, but that where the gravamen of the fraud consists JOHNSON'S CASES, 1. 1799 DOLE v. MOULTON AND ANOTHER. 121 years and some months old. The plaintiff then offered to prove that at the time of giving the bond and before its execution, and in order to avoid any doubt on this point, the defend- ant was asked by the plaintiff's agent who took the bond, whether he was of age, and he alleged that he was of full age ; and that thereupon the bond was taken. This evidence was objected to, but admitted. A verdict was found for the plaintiff, subject to the opinion of the court on the question whether the evi- dence was admissible. The ground on which the evidence was con- tended to be proper was, that the act of the in- fant in giving the bond was not absolutely void, but voidable only, at his election ; and that he was guilty of deception and fraud in representing himself to be of age, and ought not to be permitted to avail himself of such fraud. Mr. 8. Smith for the plaintiff. Mr. Spencer for the defendant. LANSING, Ch. J. , delivered the opinion of the court : There seems to be some obscurity on the subject of the different acts of an infant, which of them shall be void or voidable .only, and perhaps the best rule is to be found in Perkins (Perk., 12), which was adopted by the Court of King's Bench in Zouch v. Par- sons (3 Burr., 1804), which is, that all deeds of an infant which do not take effect by de- livery of his hand are merely void, and all such as do take effect by delivery of his hand are voidable. The bond in this instance is of the latter description, and is voidable only at his election. The remaining question to be 1 28*] decided is whether, under *the circum- stances of the case, he ought to be precluded from exercising that election. We have no doubt of the principle adopted by the judge at the trial, that the disabilities of infants are intended to protect them from injury and imposition, and not to aid them in practices of fraud or collusion ; but on con- sideration, we are of opinion that its appli- cation to the conduct of the defendant in the case before us, so as to charge him with this debt, would tend to endanger all the rights of infants, and ought not to be admitted. The bond in this case must be supported in toto, or not at all, and no decision can be found which carries the doctrine of fraud or its effects, in relation to infants at common law, to this ex- tent. The cases cited (2 Eq. Ca., Ab., 489; 9 Mod., 38 ; 9 Viner Abr., 415) by the plaint iff are of a different description, and arose in a court of equity which, under the particular circumstances, was enabled to relieve against the fraud complained of without prejudice to the other rights of the infants, and without invading the general rules of law established in their favour. Attempts to shake principles which have been sanctioned by the practice of ages ought to be well considered before they receive the countenance of a court of justice. If an allega- tion like the present were ever permitted to destroy an infant's right of avoiding contracts, not one in a hundred of his contracts would be placed in his power to avoid, for nothing would be easier than to prevail upon the in- fant to make a declaration which might be shown as evidence of deliberate imposition on his part, though prompted solely by the per- son intended to be benefited by it. When a question of infancy arises, and the infant is alleged to be still in his minority, it may be determined by inspection ; and if his appearance exhibits a sufficient legal criterion to decide the' question, it ought also to be con- sidered as sufficient to put a party who may be affected by it upon inquiry from a differ- ent and competent source, and if he disregard so obvious a precaution, he must submit to the legal consequences of his unguarded con- duct. *Upon the whole, we are of opinion [* 1 29 that the evidence was improper, and that a new trial ought to be awarded. New trial granted. Cited in 7 Cow., 180; 15 Wend., 71, 635; 17 Wend.. 131 ; 13 Barb., 538 ; 10 Pet., 70, 77. DOLE v. MOULTON ET AL. Bonds Of Prisoner. A warrant to confess judgment on a bond given by a prisoner and another to the sheriff, for the liberties of the prison, was held to be void. THE plaintiff was sheriff of the County of Rensselaer, and one of the defendants, his prisoner, in execution in the gaol of that county. The prisoner, in order to gain the liberties of the gaol, together with the other a con- Gilson in a transaction which really originated in tract, the plea of infancy is a good defense." v. Spear, 3S Vt., 315. The weight of authority is perhaps slightly in favor of the proposition that an infant is not answerable for fraudulently representing himself of full age. though such representations are the inducement or a contract, or where they are the inducement to a person to sell him goods on credit. Gilson v. Spear, above cited ; 1 Am. Lead. Cas., 267 (note to Tucker v. Moreland and Vasse v. Smith); Merriam v. Cun- ningham, 11 Gush.. 40 ; Liverpool Adelphi Loan As- sociation v. Fairhurst, 9 Excn., 430. There is, however, good authority as well as rea- son upon the other side see Fitz v. Hall (9 N. H., 441), for an able statement of this side of the question. See, further, Eckstein v. Frank. 1 Daly, 334 ; 1 Par- sons on Contracts, 317, note x ; Wallace v. Morss, 5 Hill., 391. However this may be, there is no question but that Infancy is a good plea to an action on contract notwithstanding such false representations. Burley JOHNSON'S CASES, 1. v. Russell, 10 N. H., 184 ; Merrfam v. Cunningham, and Fitz v. Hall, above cited ; Studwell v. Shapter, 54 N. Y., 249; Heath v. Mahoney, 7 Hun. (14 N. T. Slop.), 100. In Wright v. Snowe, 2 De G. & Sm., 321, it is held an infant cannot in equity take advantage of such misrepresentation. Approved, Hannah v. Hodgson, 30 Beavan, 30. For particular instances of contracts, etc., of in- fants held voidable, not void, see Baxter v. Bush, 29 Vt., 465 (lease); State v. Plaisled, 43 X. H., 413, and Palmer v. Miller, 25 Barb., 399 (mortgage); Griffith v. Schwenderman, 27 Mo., 412 (lease); Reed v. Batch- elder, 1 Met. (Mass.), 559, and Earl v. Reed. 10 Id.. 387 (negotiable note); Dunton v. Brown, 31 Mich., 182 (partnership); Kendall v. Laurence, 22 Pick., 543; Gilletv. Stanley, 1 Hill, 121; Bool v. Mix, 17 Wend., 119 (deeds). As to infants' responsibility for torts in general and what constitutes a tort within the rule, see Campbell v. Stokes, 2 Wend., 137, and note in this edition . 269 129 SUPREME COURT, STATE OF NEW YORK. 1799 defendant, as his surety, entered into a bond to the plaintiff, conditioned that he should re- main a faithful prisoner, &c., pursuant to the statute regulating the liberties of gaols. (Laws of N. Y., 21, Sess. c., 91.) The sheriff at the same time took a warrant from the defendants directed to any attorney to con- fess judgment on the bond, by virtue of which a judgment was entered and an execution is- sued thereon. It was moved to set aside the judgment and execution on the ground that the sheriff had no authority to take sucli warrant. Mr. Woodworth for the plaintiff. Mr. Troup for the defendant. Per Curiam. The statute does not author- ise the sheriff to take such a warrant, which is therefore void. If permitted, it might be employed to oppressive purposes. Let the judgment and execution be set aside with cost*. OAKLEY v. FARRINGTON. Slander Actionable Words. In an action of slander, for the following 1 words, "Squire Oakley is a damned rogue," it was held that they were not actionable, it not appearing that they were spoken of him in his official capacity. was an action of slander. The plaint- JL iff in the declaration was stated to be a justice of the peace, and the slanderous words were charged to have been spoken of him 13O*] *in relation to his office. Amon^ others the following words were charged, and on the trial before Mr. Justice Benson, at the last Westchester circuit, were proved to have been spoken by the defendant: " Squire Oakley (meaning the plaintiff) is a damned rogue." It did not appear from any circumstance that these words were spoken of the plaintiff in his official capacity. The appellation of "squire" was intended to designate him merely, and was that by which he was usually dis- tinguished from others of the same surname in the part of the country where the parties re- sided. The defendant'on the trial moved for a nonsuit, on the ground that the words so spoken were not actionable; which motion was overruled for the purpose of taking a verdict and referring the question. A verdict was ac- cordingly taken for the plaintiff, subject to the opinion of the court; and it was agreed if that opinion should be against the plaintiff, that a nonsuit should be entered. Mr. Coleman, for the plaintiff, cited the case of Astonv. Blagrate(\ Str.,618), to show that the like words spoken of a magistrate are action- able. Mr. Woods, contra. Per Curiam. These words spoken of a common person are held not to be actionable. Although in this case they were spoken of a magistrate, they had no relation to his official character or conduct. They are therefore not more actionable than if he was not in office, or if they were spoken of any other individual. Judgment of nonxuit. MAIN T. PROSSER. Malicious Prosecution Jurisdiction of Justice. A justice of the peace has no jurisdiction of an action for a malicious prosecution. Citation Doug., 263. IN error on certiorari to a justice's court. The principal error assigned was that the suit before the justice was an action on the case for a malicious prosecution. *Mr. Woodworth for the plaintiff. Mr. Riggs for the defendant. [*131 Per Curiam. We are of opinion that the justice had no jurisdiction. The princi- ples of the action for a malicious prosecution, involve delicate and important questions, affecting the administration of public justice, as well as the rights of individuals. The action must frequently relate to proceedings in another court, and would require the jus- tice incidentally to review the conduct of superior tribunals. The exercise of such a power would be inconvenient, and could not have been intended by the general terms of the act from which he derives his authority; and, therefore, according to the case of Alway v. Burrows (Doug. , 263), an exception to his jurisdiction may well be implied from the nature and reason of the thing. The Legisla- ture seem to have had this exception in view, when, by the 4th sec. of the act concerning costs, they permitted the plaintiff, in an action for a malicious prosecution brought in another court to recover costs, a provision not gen- erally applicable to cases which are subject to the jurisdiction of justices. We are of the opinion, therefore, that the judgment must be reversed. Judgment reversed. Followed 13 Johns., 466. See 3 Denio, 84. C. JAMES c. BADGER AND BADGER. Negotiable Instruments Protest for unpftid Balance. Where the holder of a note, on the day it was pay- able received a part from the maker, and gave notice of nonpayment generally to the indorsor, it was held sufficient to charge the indorsor with the payment of the residue. THIS was an action on a promissory note by the plaintiff, as indorsee against the de- fendants who were the indorsors. Cited in 270 -1 Denio, 252: 3 N. Y., 178. NOTE. Notice of nonpayment of promissory note. Error in statement of the amount of the note held immaterial, any misdescription which would not mislead an ordinarily prudent man is immaterial. Reedy v. Soixas, 2 Johns. Cas., 337 ; Bank v. Swann. 9 Pet., 33: Snow v. Perkins. 2 Mich., 238; Bank v. Gould, 9 Wend., 279 ; Bank v. Warden, 1 N. Y.. 413, 6 N. Y., 19. See Fitchburg Ins. Co. v. Davis, 121 Mass., 121 ; Downer v. Remer, 23 Wend., 620 ; 25 Wend., 277. The fact of the existence of two or more notes of similar description may affect the question of suf- ficiency of notice. Cook v. Litchfield, 9 N. Y., 279. But see 2 Daniels Neg. Inst., p. 32, sec. 977 : Hodges v. Shuler, 22.N. Y., 115. JOHNSON'S CASES, 1. 1799 BANK OF THE UNITED STATES v. HABKINS. 131 On the trial it appeared that the note was protested for nonpayment on the 17th June, 1797, on which day it fell due; that afterwards, on the same day, the maker called on the plaintiff and paid him $300 in part satisfac- tion of the note. The residue being unpaid, due notice of nonpayment generally was given to the defendant, on Monday, the 19th of June following, but unaccompanied with any infor- mation that part of the note had been paid by the maker. 132*] *A verdict was found for the plaintiff for the balance due on the note with the interest. The defendants moved for a new trial, on the ground that the receipt of part from the maker after his default, and before notice to the indorsers, was a waiver of the default, and discharged the defendants; and if it did not discharge them the notice was improper, in not stating that a part had been paid by the maker. Mr. C. I. Bogert for the plaintiff. Mr. Hamilton for the defendants. Per Curiam. An acceptance of a part from the maker does not discharge the indorser, provided the holder gives notice in time, that he looks to him for the residue. Here notice was given, but it was general, and in the usual form without specifying that any part had been paid. Although this was not strictly cor- rect, according to the fact, yet we think it was sufficient for every beneficial purpose of notice to the indorsers. Judgment for the plaintiff. Cited in 2 Abb. App. Dec., 322 ; 4 Trans. App., 4S8 ; 4 Abb. N. S., 428 ; 6 How. (IT. S.), 282 ; 1 McLean, 312. THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE UNITED STATES HASKINS. Pleading Incorporation of U. 8. Bench Act of Congress. Whether the act of Congress incorporating the bank of the United States, be a public or private act, it is not necessary to set it forth in an action brought by the president, directors and company of that bank. THE plaintiffs declared in this action by the name and style of the "President, Direct- ors and Company of the Bank of the United States." The defendant pleaded in abatement that the plaintiffs had exhibited their bill, &c., and had not set forth any act incorporating the bank, or shown the name of the president, directors and company, &c. The plaintiffs demurred to this plea, and the defendant joined in demurer. Mr. Burr, in support of the demurer, insisted that the act incorporating the company was a private act, and ought to have been set forth, together with the names of the individuals composing the company. Mr. Hoffman, contra, contended that the act was a public act, if not so in terms, at least from JOHNSON'S CASES, 1. its nature, and had *been frequently [*133 recognized by subsequent acts of Congress, which were public, and was, therefore, to be regarded as such. Per Curiam. On examining precedents, we are satisfied that whether the act of Congress incorporating the Bank of the United States be viewed either as a public or private act, it was not necessary to set forth the act itself, nor the names of the individuals composing the com- pany. Judgment for the plaintiffs. Cited in 14 Johns., 246 ; 5 Wend., 482 ; 4 Johns. Ch., 372; 12 Barb., 575; 28 Barb., 63; 13 How. Pr., 272; !> Bos., 716; 1 Duer, 708; 12 Leg. Obs., 86. VALKENBURGH t. DEDERICK. Insolvent Debtor In Custody Discharge not pleaded. Where the def entant obtained his discharge under the Insolvent Act, pendente lite, in time to plead it or give it in evidence, but neglected to do so, the court, after a judgment by default against him, and a surrender by his bail, refused to discharge him from custody. THIS cause was at issue in July vacation, 1798, and an inquest by default was reg- ularly taken against the defendant early in July, 1799, on which a rule for judgment had been entered at this term. The defendant ob- tained a discharge under the act for giving relief in cases of insolvency, on the 9th Feb- ruary last, and being surrendered by his bail, moved to be discharged from custody, and that the proceedings against him subsequent to his discharge might be set aside. Per Curiam. The defendant has shown no reason why he did not give his discharge in evidence, or plead it puisdar. cont.: and having neglected to make his proper defence, we will not interfere to help him. In an ordinary case, and with a more meri- torious defence, the court would not relieve after so great a laches. Rule refused. Cited in 46 N. Y., 203; 50 N. Y., 595. *IN THE MATTER OF P. GEPHARD. [*134 Mandamus To restore Attorney at Law Affi- davit. A rule to show cause why a mandamus should not issue to a court of common pleas, to restore an at- torney, was refused, bocause the affidavit did not state that the court had improperly removed him. TTOPKINS moved, on an affidavit, stating -TL that Gephard had been removed by the Court of Common Pleas of the County of Delaware, from the office of an attorney of that court, for a rule that the judges of that court show cause, by the first day of the next term, why a mandamus should not issue com- manding them to restore him to his office. 271 184 SUPREME COURT, STATE OF NEW YORK. 1799 Per Curiam. The affidavit is insufficient. It is not shown that the court below acted im- properly, or that the fact charged against Gephard, on which he was removed, was founded in error or mistake. The m( tion must be denied. N. B. The affidavit was afterwards amend- ed, on which the court granted the rule. Cited in-64 Ind., 495. BURNS v. BAKER. Insolvent Debtor Application for Discliurge Stamped Inventory. On application of a prisoner to be discharged un- der the act "for the relief of debtors with respect to the imprisonment of their persons," it was held that the inventory exhibited by the debtor must be stamped. THE defendant being brought up to be dis- charged under the "Act for the relief of debtors, with respect to the imprisonment of their persons," it was objected, 1. That in the schedule annexed to his inventory, his arms were not specified. 2. That the inventory did not specify when the prisoner owned the articles mentioned in it. 3. That the prisoner was in custody in a suit for a breach of promise of marriage, which was a tort. 4. That the inventory was not stamped. Mr. Lee for the petitioner. Mr. Munro contra. Per Curiam. The inventory ought to have been stamped. Though the other grounds of opposition are untenable, that objection is fatal. Rule refused. 135*] *GRISWOLD v. HASKINS. Pleading over after Frivolous Demurrer. If the defendant put in a frivolous demurrer, he cannot afterwards withdraw it, to plead the general issue, though he has merits. BURR, for the defendant, moved for leave to withdraw a demurrer, and plead issuably on an affidavit of merits, which he did not know of at the time the demurrer was filed. Mr. Riggs, contra, objected,thatthe demurrer was frivolous and put in merely for delay. Per Curiam. The demurrer on the face of it is frivolous, and appears to have been put in merely for delay. The defendant now ap- plies for a favor, when his conduct entitles him to no more than the summum jus. The motion must be denied. Rule refused. 272 LE CONTE v. PENDLETON. Inquest Notice of Commission. Where the plaintiff took an inquest by default, after regular notice of an intended application to move at the next term for a commission, it was set aside. B LIVINGSTON, for the defendant, moved . to set aside the inquest taken in this cause for irregularity. Issue was joined on the 9th June last, and on the 19th June, the defendant gave notice to the plaintiff, that he intended to apply at this term for a commis- sion to take the examination of witnesses in Georgia. But the plaintiff afterwards gave notice of trial for the July circuit, and took an inquest by default, Mr. Harison contra. Per Curiam. An issue was not joined in the cause until after the election made as to the plea, in the last 1 vacation; the defendant was in time to apply for a commission, according to the 9th rule of April Term, 1796. The pro- priety of the plea elected by the defendant is not to be examined on this motion. The in- quest must be set aside, and a commission issue. Rule granted. *THE CASE OF HUSTED, a Soldier. [* 136 Habeas Corpus Enlisted Soldier Conclusive Facts. A habeas corpus to bring up a person stated to be a soldier enlisted in the army of the United States was refused. AN application was made for a habeas corpus, to bring up one Husted, detained in cus- tody by a captain in the Army of the United States, who claimed him as a soldier enlisted under the authority of the United States. RADCLIFF, and KENT, JJ., were of opinion that the application ought to be refused, on the ground that if the facts stated were re- turned on the habeas corpus, it would be con- clusive against his discharge. BENSON, J., said the motion ought to be de- nied, because this court had no jurisdiction in the case. LEWIS, J., and LANSING, Ch. J., were for granting the habeas corpus. Motion denied. Distinguished 6 Park., 281, 284. Cited in 9 Johns., 239 ; 40 Barb., 48 ; 107 Mass., 161 : 1 Abb. (U. S.), 145; Hemp., 309. GELSTON, Assignee of the Sheriff, v. SWARTWOUT, Manucaptor. Notice Service on Attorney. A service of notice must be on some person in the office or house where the attorney of the opposite party resides : and it must be shown that everything has been done to bring it home to the party. JOHNSON'S CARES, 1. 1799 THE PEOPLE v. WATERS. 136 "1TTORTMAN, for the defendant, moved to VV stay proceedings on the bail-bond. It .appeared that the attorney for the defendant in the original suit, had given notice of re- tainer and special bail at the same time, by leaving it at the office of the plaintiff's attor- ney in his dwelling-house, when no person was present. Two terms had elapsed before the present suit was commenced. Mr. Coleman, contra. Per Curiam. The notice was not duly served. It should have been given to some person in the house. To make the service of .a notice good, it must be shown that every- thing has been done to bring it home to the party. The service must be on some person in the office, and belonging there. If no per- son is there, it must be on some one in the house where the attorney resides, or where his office is kept; and if there is no person there, it may be left in the office. But as there 137*] has been a negligence on *the part of the plaintiff in not putting the bail bond in suit at the subsequent term, the bail ought not now to be fixed from the irregularity of the notice, which the prevalence of the yellow fever in the city at that time may, in some measure, excuse. Let the proceedings be stayed, on the payment of costs, and the justification of bail if required. Rule granted. THE PEOPLE . WATERS, Sheriff, &c. .Sheriff Contempt Attachment Process given to Deputy. A sheriff is not liable to an attachment for a con- tempt in not acting 1 upon process which does not come to his personal knowledge, or is not lodged in his office, but is delivered to a deputy. rpHE sheriff of Orange was brought up on an J- attachment for a contempt, in not return- ing a. fieri facias directed to him. The plaint- iff in the original suit, having filed interroga- tories, and the sheriff having made answer thereto. The court said a sheriff is not to be considered as in contempt for not acting on an execution which never came to his personal knowledge, nor was lodged in his office. In the present case, it appears that the./?, fa. was delivered to a deputy; and we need not decide whether such a delivery be good, so as to charge the sheriff himself, because, in this case, the sheriff has affirmed the receipt of the execution by acting upon it. He has not returned it within 40 days, and his answers afford no JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. satisfactory excuse. We order that he pay a fine of $20 for the contempt, and also the costs of the rule and attachment, and that he stand committed until the fine and costs are paid. Denied 6 Cowen, 42. Cited in 37 Ind., 462. IN THE MATTER OP M'KINLEY ET AL., Absent Debtors. Surety Right to Existing Attachment. Where an attachment had been obtained by the indorsee of a bill of exchange, against the drawers, as absent debtors, and the indorser afterwards paid the amount, this court reversed the order of a juds*e for a suversedeas, and allowed the attachment to proceed for the benefit of the indorsor or surety who paid the money. Statute continued. Statute of April 14, 1786, 23. MR. MUNRO, indorsee of a bill of exchange drawn by M'Kinley & Co., sued out an attachment against them as absent debtors, *under the "Act giving relief against [*138 absent and absconding debtors," passed the 4th April, 1786, and a vessel belonging to them was seized under the attachment. The indorsor of the bill afterwards paid the amount to the indorsee, but it was agreed be- tween them, that the proceedings should con- tinue on the attachment for the benefit of the indorsor, for whom the indorsee, at whose in- stance the attachment issued, should be a trustee. M'Kinley & Co. afterwards applied to the recorder of the city of New York, for a mpersedeas, by whom it was allowed. An appeal was made from that order to this court. Per Curiam. Although a payment may be equivalent to giving the security required by the 23d section of the act, in order to obtain a mpersedeas, as was insisted on in the argu- ment; yet it must be a payment by the prin- cipal himself, and not by his surety, or one collaterally responsible to the creditor. The 23d section expressly provides that the security shall be given for the benefit of all the creditors. As the indorsor, therefore, who paid the money, must be considered as a creditor, he has a right to avail himself of this attachment, and Munro may be considered as a trustee for his benefit. Besides, if the person who has sued out the attachment has been paid his debt, and the absent debtors wish to avail themselves of this payment, they must resort to their plea in a regular suit. Let the order be reversed. Cited in-16 Johns., 14, 164 ; ION. Y., 67 ; 3 Barb., 13. 18 273 IN THE SUPREME COURT OF JUDICATURE STATE OF NEW YORK, OCTOBKR TKRM, IN THE YTCAR. 1799. 139*] *LODGE v. PHELPS. 1. Contracts Lex Loci Remedy. The indorsee of a promissory note given in Con- necticut, where promissory notes are not negotia- , ble, may maintain an action in his own name in i this State, against the maker. The lex loci contrac- \ tus is not to govern as to the mode of enforcing- the contract. Harg. Co. Litt. lib. 2, n 44., THIS was an action of assumjmt, brought by j the plaintiff as indorsee of a promissory j note, made by the defendant to one Lloyd, and i payable to him or order, dated at Suffield in the State of Connecticut. The plea was the general issue. On the trial, before Mr. Justice Kent, at the sittings in New York, after July Term, 1798, the plaintiff proved the handwriting of the maker and indorser, and there rested his cause. The defendant then prc/ved that by the laws of Connecticut, where the note was made, promissory notes (except bank notes) were not negotiable, so as to entitle the assignee to bring a suit in his own name, and that they remained on the same footing as choses in ac- tion at the common law ; he insisted that the law of Connecticut ought in this respect to govern, and that the plaintiff, therefore, was not entitled to recover in this action. It was admitted, that *the payee of the note [*14O at the time of its date, and the plaintiff at the time of the indorsement, resided in the city of New York. Upon this evidence a verdict was taken by consent for the plaintiff, subject to the opin- ion of the court, reserving also the question as to the admissibility of the evidence on the part of the defendant under the present issue. Three points were made on the argument: 1. By what law the contract was to be gov- erned. 2. If by the law of Connecticut, whether it should affect the form of action. 3. If the court should be of opinion with the defendant on the preceding points, whether the evidence on his part could be admitted under the general issue. Mr. B. Livingston, for the plaintiff. Mr. Harison, for the defendant. Per Curiam : That personal contracts just in themselves and lawful in the place where they are made, are to be fully enforced ac- cording to the law of that place, and the in- tent of the parties, is a principle which ought to be universally received and supported. But this admission of the lex loci can have refer- ence only to the nature and constmction of NOTE. Negotiable paper, law of place. In general rights of original parties to a note are governed by the lex contracts, but if payment is stipulated in another place, then by the law of that place ; each indorsement will be regarded as a new contract, and will follow the same rule. Rase v. Bank, 20 Ind., 94 ; Collins v. Burkam, 10 Mich., 283; Warren v. Lynch, 5 Johns., 239 ; Ballard v. Webster, 9 Abb. Pr., 404 ; Wilson v. Lazier, 11 Gratt. (Va.) 477 ; Kuenzie v. Elvers, 14 La. Ann., 391; Coffman v. Bank, 41 Miss., 212 ; Williams v. Wade.l Mete. (Mass.), 82 ; Aymar v. Shelden, 12 Wend., 439 ; Roe v. Jerome, 18 Conn., 138 ; Musson v. Lake, 4 How. (U. S.), 62 ; Bank v. Brady, 3 McLean, 288 ; Gaylord v. Johnson, 5 McLean, 448; Brabston v. Gibson. 9 How. TJ. S., 263; Evans v. Anderson, 78 111., 558 ; Everett v. Ven- dryes, 19 N. Y., 436 ; Artizans Bank v. Park Bank, JOHNSON'S CASES, 1. | 41 Barb., 599. See Lee v. Selleck, 32 Barb., 522, 33 N. Y., 615. The mode of enforcing payment will lie governed by the Icxfori. Bacon v. Dahlgren, 7 La. Ann., 6(10; Collins v. Burkam, above cited ; Bank v. Donnelly, 8 Pet., 361, R. R. Co. v. Barron, 83 111., 365. By Illinois law a note payable to A or bearer, can- not be transferred by delivery so as to give bearer legal title, and even if the transfer were made in State where delivery passes the title, the same rule will apply. Roosa v. Crist, 17 111., 450. A note may be enforced in the courts of New York, although not stamped according to the law of the place where it was made. Lud'ow v. Van ! Rensselaer, 1 Johns., 94. See Fant v. Miller, 17 j Gratt (Va.), 47. 140 SUPREME COURT, STATE OF NEW YORK. 1799 the contract arid its legal effect, and not to the mode of enforcing it; for every country must and will have modes of redress and judicial proceedings peculiar to its own jurisprudence, and is entitled to administer justice under the solemnity of its own forms. (2 Ersk. Inst., 473, 474, 475; 1 Bro. P. C., 41; 1 Black. Rep., 237, 238, 258; 7 Term, 243; 1 Bos. & Pull., 142; 1 Emerigon, 122; Huberus, lib. 1 tit., 31; Harg. Co. Litt., lib. 2 n. 44.) It is not material, therefore, to decide whether the law of Connecticut, where the contract was made, or the law of New York, where it was to be paid and performed, as has been contended, ought to govern. There can be no good reason why the plaintiff in either case should not be permitted in our own courts to avail himself of a remedy pre- scribed by our laws, and sue directly in his own name, instead of being compelled to use the name of the original payee. If the de- endant had any defense entitled to be made here, as being authorized by the law of Con- necticut, and the contract were to be governed 141*] by that law, he *would still be per- mitted to make it, and would be heard in one form of action as well as the other. There is, therefore, no reason to turn the plaintiff round to another suit; The precedent would lead to nnovation, and to the introduction of a prac- tice wholly unknown in our courts, and not approved by our law. It follows that it is unnecessary to determine whether under the general issue, the defend- ant could avail himself of a defense arising from the law of Connecticut. His objection to the plaintiff's recovery is founded on the mode of redress only, and not on the merits of a just defense. Judgment for the plaintiff. 1 Approved 2 Johns. Cas., 369. Cited in 1 Caines, 412; 14 Johns., 340; 12 Barb., 645; 4 Uerr., 201. GARDNER ET AL. e. SMITH. 1. Marine Insurance Illicit Trade Foreign and Domestic Trade. 2. Id. Policy until floods are landed. 3. Id. Abandonment Agency. 4. Id. Id. Total loss. A policy of insurance against the risk from illicit trade in a foreign country, is valid, though it would be void if intended to protect a trade against our own laws. A policy on goods until twenty-four hours after they are landed, continues until twenty-four hours after all the goods are landed. After an abandonment, the consignee of the goods insured becomes the agent of the insurer, and his acts, if done in good faith, are at the risk, and for the bene- fit of the insurer. Where the goods saved do not amount to half the value of the goods insured, the insured may abandon as for a total loss. THIS was an action on a policy of insurance on goods, "at and from New York to 1. See Nash. v. Tupper, 1 Caines, 412; Hitchcock & Fitch v. Aicken, 1 Caines, 460; Post & La Rue v. Neafle, 3 Caines, 12 ; Van Raugh v. Van Arsdale, 3 Caines, 154 ; Jackson v. Jackson, 1 Johnson, 424 : and the authorities there cited. Smith v. Spinolla, 2 Johnson, 198. NOTE. A policy of insurance against the rink from trade, forbidden by the laics of a foreign country, fo vattd. 3 Kent Com., 263 et seq., and cases ciU-d. 27(5 any port or ports in Jamaica, and twenty-four hours after the goods, as named in the margin, are landed in Jamaica." The policy was against the usual risks, and also against the risk of contraband and illicit trade. The plaintiff declared for a total loss by seizure for illicit trade. On the trial before Mr Justice Radcliff, at the last March Circuit in the city of New York, it appeared that the goods, as mentioned in the margin of the policy, were duly shipped on the voyage insured; that they consisted partly of dry goods which were illicit by the laws of Jamaica, and partly of lumber and provisions which were not illicit; that the vessel and goods arrived at Kingston in Jamaica, on the 12th October; that the vessel was duly entered, and on the 14th of October began to discharge her cargo. On that day she put on shore her deck lading, and *on the day following she dis- [*142 charged part of the cargo from the hold; the next day being Sunday nothing was done, but early in" the succeeding day, to wit: the 17th of October, while proceeding in the further discharge of the cargo, the vessel and the re- maining goods on board, the quantity of which was unknown, were seized by the cus- tom-house officers of the port; the greater part of the dry goods had been landed, and some of them which had been so landed were put into a store, and were also seized, but part of them had been on shore for twenty-four hours. Of the above mentioned goods, there were afterwards libelled in the court of ad- miralty at Jamaica, as having become for- feited, 5,000 pieces of nankeen, 55 pieces of linen, and 74 pieces of painted cloth, and upon computation it appeared that the value of the articles saved was less than half the amount insured. The libel was also given in evidence, but no sentence of condemnation was pro duced. The plaintiff, on receiving notice of the loss, which was accompanied with information of the articles saved, consisting of lumber, pro- visions and some of the dry goods, abandon- ed to the underwriters, and offered the usual proof of loss and interest. The consignee of the goods sold those which were reported to be saved, and rendered to the plaintiff an ac- count of sales, which, however, did not comprise as many goods as would be equal to the differ- ence between those shipped and the articles specified in the libel. The consignee after- wards sent to New York a quantity of rum and sugar towards the payment of the balance of his account, which was partly composed of the proceeds of the articles saved. On the arrival of the rum and sugar, the plaintiff offered to the underwriters, rum at the first cost and charges, equal to the amount of the proceeds of the goods saved, which they re- fused to accept, and the rum was afterwards sold by the plaintiff and sustained a loss. The judge directed the jury, that by the true construction of the policy, the risk contin- ued upon all the goods insured until twenty- four hours after they were all landed; and in- formed *them that in his opinion the [* 1 43 plaintiffs were entitled to recover as for a total loss. The jury found accordingly for the plaint- iffs for a total loss, crediting the underwriters JOHNSON'S CASES, 1. 1799 ENSIGN v. WEBSTER AND WEBSTER,. 143 for the proceeds of the articles saved accord- ing to the account of sales, and debiting them for the loss on the rum. It was agreed by the parties, that if the court should be of opin- ion that the adjustment for a total loss was right, and the debit for the loss of the rum was wrong, then the debit should be deduct- ed proportionably from the amount of the verdict. On the part of the defendant three points were made. 1. Whether the policy ought to be con- strued to protect all the goods until all of them were landed. 2. Whether the plaintiffs were entitled to recover for a total or a partial loss. 3. Whether the loss on the remittance of the rum and sugar was chargeable to the de- fendants. Mr. Harison, for the plaintiffs. Mr. B. Livingston, for the defendant. LANSING, Ch. J. This was a voyage un- dertaken expressly for the purpose of illicit trade in a foreign country. A policy on such a voyage against our own laws would be void, but we are not bound to declare it void when merely contravening the positive regulations of another state. On account of the nature of the voyage, the insurance in point of time was extended to twenty-four hours after the goods should be landed. A protection against the risk of seizure until they should be so landed, was a direct and important stipulation iti the contract, and the insurance being en- tire, we are of opinion that the risk continued on the entire goods until twenty-four hours after all of them were landed. This is the correct sense of the terms of the policy, and it would be inconvenient to admit a different construction. The risk cannot reasonably be divided and applied to separate parcels. It would be difficult if not impossible, under the usual circumstances of such a voyage, to de- scend to the minute details which would be req- 1 44*] uisite, *and to distinguish the precise time of landing eaeh article. As to the second question, it is admitted that, by a computation, the accuracy of which is not denied, the value of the goods saved did not amount to half the value insured. The loss was therefore total, according to the rule which has been established where a moiety is lost. The plaintiffs having abandoned, are therefore entitled to recover for a total loss. The last point respects the conduct of the consignee. After the abandonment he became the agent of the assurer, and the disposition of the goods saved as made by him, while he acted bo na fide, ought to be at the risk and for the benefit of the assurer. The loss on the sugar and rum, in which the proceeds of the property saved were invested, ought, there- fore, to be charged to the defendant. The plaintiffs, on the arrival of these articles, tendered to the defendant the rum only, but it appears that the rum and sugar were part of a mixed cargo, which was the product of differ- ent funds, and difficult to be distinguished; that the sugar was not withheld from an im- proper motive, but omitted to lie tendered through mistake, and that the assurer wholly JOHNSON'S CASES, 1. declined having anything to do with the ship- ment. Under such circumstances attending a commercial transaction, and considering that the defendant refused to accept any part of the shipment, I think the strictness of a com- plete tender may well be dispensed with, and that the plaintiff is entitled to judgment on the verdict generally. The other judges concurred, except on the last point, as to which they were of opinion that the defendant was entitled to a deduction for a proportional part of the rum and sugar, by a calculation to be made on the product of the whole cargo. Judgment for the plaintiffs accordingly. Cited in 2 Johns. Cos., 150, 266; 2CaineCas., 221 ; 8 Cranch, 47 ; 3 Mason, 18, 69. *ENSIGN c. WEBSTER AND WEBSTER. Evidence Receipt. A receipt in full for money, is not conclusive evi- dence, and parol proof of a mistake may be given. Cases cited 2 Term R., 366; 5 Ves., Jr., 87. THIS was an action of asmmpnit for goods sold and delivered. The declaration con- tained also a count upon an insimul compulas- sent. The defendant pleaded non assurnpnt and payment, with notice of a set-off. The cause was tried before Mr. Chief Justice Lan- sing, at the last July circuit in Albany, when plaintiff proved that he and the defendants had been jointly interested in a manufactory of paper and a paper-mill; that on the 20th October, 1795, a settlement took place, when a balance of 126?. Is. Qd. was found due from the defendants to the plaintiff; that the defendants were also partners in other con- cerns generally, and one of them gave the plaint- iff a writing in the following words: "Due Pere Ensign 126?. Is. 9d."and desired him to keep it, and promised that he and the other defendant would give him their note for that sum. The plaintiff also read a letter addressed to him by the defendants, dated 6th June, 1798, in which they spoke of the settlement in 1795, and acknowledged to have seen a memoradum of that settlement in a book of the plaintiff, but expressed a doubt as to the time when the memorandum was made, and referred to one Grant for information, by which they said they would be governed. On the part "of the defendants a receipt signed by the plaintiff was offered in evidence in the words following: "Received from the 30th day of May last to this day, 121?. 8s. Wd. in full for journeymen's wages, and my part, of the profits of the paper-mill from that day, and also in full of all other demands to this day, the journeymen's wages, boys' board, and in fact, of all demands I or they may have on the said mill or the proprietors thereof to this dav. Witness my hand the 14th dav of July, 1798. 277 146 SUPREME COURT, STATE OF NEW YORK. 1799 146*] *The plaintiff then offered to prove that there was a mistake in the general terms of this receipt, and that it was given for monies which had become due for his profits, and ! the expenditures attending the said mill, from ' the 30th May, 1798, until the date of the re- j ceipt only, and that the sum of 126Z. 1*. Qd. [ due to him on the settlement of 1795 had | never been paid. This evidence was over- ruled, and a verdict was thereupon taken for the defendants. The plaintiff moved for a new trial, on the ground that the evidence last mentioned ought to have been admitted. This was opposed by the defendants, who insisted that the plaintiff was concluded by the express terms of his receipt, and ought not to be allowed to contradict it. Mr. Spender, for the plaintiff. Mr. Van Vechten, for the defendants. LANSING, Ch. J., delivered the opinion of the court: On the trial I overruled this evidence on the principle that the plaintiff having delib- erately acknowledged in writing, on the 14th July, 1798, that all the accounts respecting the paper manufactory, subsisting between him and the defendants, had been fully sat- isfied and paid, he ought not to be permitted to destroy the effect of that acknowledgment by parol proof. My reflections on the subject since, have con- vinced me that I was not correct in that opin- ion. A mere receipt for money is not within the rule which prohibits a party from giving evidence by parol, or essentially to vary a written agreement. The application of the rule to this extent would prevent the correc- tion of any mistake, however apparent, and in many cases operate unjustly. We are, therefore, of opinion that the evidence ought to have been admitted, and that a new trial be awarded. Rule granted. 1 Cited in 5 Johns., 72 ; 12 Johns., 531 ; 14 Wend., 118 ; 8 N. Y., 408 ; 37 N. Y., 314 ; 4 Trans. App., 247 ; 1 T. & C., 234 ; 8 Barb., 69 ; 64 Barb., 601 ; *5 How. Pr., 449 ; 4 Abb. X. S., 246; 1 Ware, 183; 3 McLean, 267. 147*] *MUMFORD P. CHURCH. 1. Deposition de bene Special circumstances Notice. 2. Marine Insurance Abandonment Capture Release and Arrival. A deposition taken de bene esse in a cause, after the writ was returned, but before the declaration was tiled, and on the same day that an order of a judge had been obtained for that purpose, was al- lowed to be read, the witness being unexpectedly about to depart from the State, on a distant voyage, under circumstances which did not admit of delay, 1 See 2 Term, 366; 5 Vezey, Jun., 87. NOTE. The doctrine nf the above coxe as to aban- donment hat been xubxtantiallu overruled. The, law is that the state of fact* at the time the offer of aban- donment is made-, and not the information of the in- sur&l, determine* the right to abandon. See Hallett v. Peyton, 1 Caine Cas., 38; Dickey v. Am. Ins. Co., 3 Wend., 658 ; Marshall v. Del. Ins. 'Co., 4 Crunch, 202; Rhinelander v. Penn. Ins. Co., 4 Cranch, 29; Snow v. Union Ins. Co., 119 Mass., 592. 27H and notice having been given to the opposite party to attend his examination. The insured may aban- don on receiving information of the capture of the vessel, and though it afterwards appear that the vessel was restored at the time of the abandonment, but unknown to the insured, the abandonment will be valid ; and when once rightfully made, it is defini- tive, though the vessel was afterwards released and arrived at her destined port in safety. But see 1 Caiues' Cases in Error. 21-43. T'HIS was an action on a policy of insurance I on the brig Betsey, B. Richards master, at and from New York to Petit Goave, a French port in the island of Hispaniola, subscribed by the defendant on the 25th May, 1793, for $1*- 000. The plaintiff declared for a total loss by capture. On the trial before Mr. Justice Kent, at the New York circuit in March last, the defend- ant's subscription to the policy, the interest of the plaintiff, notice of the loss, and proof of loss and of interest, and an abandonment on the 12th June, 1797, were proved or admitted. A witness who had been called to prove the abandonment, in answer to an inquiry made by the defendant's counsel, relative to the in- formation which the plaintiff said he possessed concerning the brig, testified that the plaintiff told him that he had intelligence of her having been captured and carried into Mole St. Nich- olas for trial. The plaintiff proved by the tes- timony of the mate that the brig sailed on the voyage insured on the 12th May, 1798, and on the 16th of the same month was captured by the British cutter Genet, and carried into Mole St. Nicholas, where she was detained three weeks, and restored to the captain on paying charges; that after her release she remained at that port three weeks longer, and that a part of the cargo, consisting of flour, was sold there. A decree of the Court of Vice- Admiralty at Mole St. Nicholas, pronounced on the 19th of June, restoring the brig on the payment of charges, was also read in evidence, and it was admitted that this decree, and the captain's protest against it. were delivered to the defend- ant on or about the 1st of July, 1798, when they were received by the plaintiff. *It was also admitted that the brig [*148 returned to the port of New York in Septem- ber following; that she was there libelled in the District Court of the United States for sea- men's wages, and after the usual proceedings in such cases, ordered to be sold ; that she was accordingly sold for the sum of $2,250, and after paying the seamen's wages and other in- cidental charges, the sum of |931.56 remained in the hands of the proper officer of that court, for the benefit of whom it might concern. The plaintiff then offered in evidence the de- position of B. Richards, the master, which had been taken de bene esse, before the recorder of the city of New York, acting as commissioner of this court, under the following circum- stances: On the arrival of the master in the city of New York in September, 1798, he found the business of the city interrupted by the pes- tilence which then prevailed, and he immedi- ately left it for his place of residence at New London in Connecticut: that he continued there until a few days before the time of tak- ing his deposition, when he set out for Balti- more to take the command of a ship on a voy- JOHNSON'S CASKS, 1. 1799 MUMFORD v. CHURCH. 148 age to the East Indies, and which then lay in readiness and waiting his arrival. On his way to that place, he called on the plaintiff in New York, on the morning of the 20th of Decem- ber last, and informed him of his intention to proceed to Baltimore the next morning by the earliest stage. The plaintiff solicited him to postpone his journey until he should be able to have his deposition regularly taken in this cause, which he absolutely refused, alleging that he had reason to apprehend that he should lose the command of the ship by such delay. Upon this an application was made to the de- fendant's attorney to consent that his deposi- tion should be immediately taken, which be- ing refused, the plaintiff applied to the re- corder for an order to examine the witness at eight o'clock in the evening of the same day, which was immediately served on the defend- ant's atttorney, and the deposition was accord- ingly taken, de bene e-sse, the defendant's attor- ney refusing to attend the examination. At 149*] the time of his examination, the *dec- larution in this cause was not filed, but the writ had been returned served, at the October terra preceding. The defendant objected to the reading of this deposition, which objection was overruled ; the deposition being read, con- firmed the testimony of the mate, and further stated that the brig arrived at Mole St. Nich- olas on the 28th day of May; that she was li- belled by the captors in the Court of Vice- Ad- miralty there; that he (the master) put in a claim to the brig in behalf of the persons in- terested in her; that he was examined in the said court on the standing interrogatories on the 7th of June; that on the 9th of June the brig was decreed to be restored on paying all the costs as above mentioned; that he payed those costs, conceiving it to be for the interest of all concerned, but was compelled to dispose of his flour there by order of the government, and prohibited from proceeding to his port of destination, and could obtain permission to go to an English port only ; that he therefore cleared out for Jamaica, and returned to New York; that on his arrival at New York, he applied to the defendant, among others, by the direction of the plaintiff's attorney, for instructions how to act, and requested him to receive the said brig, which he declined to do; and that the plaintiff had not in any manner, to his knowl- edge, interfered after the capture, either with the brig, her freight or cargo. On this evidence a verdict for the plaintiff was taken by consent, for a total loss, subject to the opinion of the court on the whole case. Mr. S. Jones, Jun., for the plaintiff. Mr. Hamilton, for the defendant. For the defendant three points were made. 1. Whether the deposition of the captain ought to have been read. 2. Whether the plaintiff had a right to aban- don, when the vessel was in fact restored, be- fore the time of making the abandonment. 15O*] *3. Whether the vessel, having re- turned to the port of New York in safety, the plaintiff was not bound to receive her, notwith- standing the abandonment. LANSING, Oh. J., delivered the opinion of the court: Under the circumstances of the case, the deposition of the captain was properly re- JOHNSON'S CASES, 1. ceived. The examination of witnesses who are about to depart from this State, de beneesse, on a proper notice, has already received the sanction, and is established by the practice of this court. If the rule were now to be intro- duced, I should be inclined to exclude such an examination, but the court think it not ma- terial, whether an examination be taken before or after issue joined or the declaration filed. The necessity of this mode of taking testimony may as often occur before as after any plead- ings in the cause. It is always more disad- vantageous to the party who is obliged to have recourse to this expedient, and thereby expose the grounds of his claim or defence, than to his adversary, who has to cross-examine mere- ly, and it may often be essential to the discov- ery of truth and the ends of justice. The no- tice of the examination in this case must also be deemed sufficient. The plaintiff gave all the time in his power; the defendant had an opportunity to attend, and being apprized of the necessity of so short a notice, he ought to have attended, or submit to the examination which was taken. The two remaining points may be considered in one view. The condition of the vessel after the capture no doubt entitled the plaintiff to abandon, and claim a total loss. He did abandon on the first intelligence of her situation, but the vessel, without the knowledge of either party, was then decreed to be restored, which, it is con- tended, changed the total into a partial loss, and deprived the plaintiff of the right to aban- don. The decree was on the 9th, and the abandonment on the 12th of June. Without deciding how far the subsequent prohibition by the British government against the vessel's proceeding to her port of destination would entitle the assured on the ship to abandon and *claim a total loss, we think that the [*151 abandonment ought to be supported, as re- ferring to the condition of the vessel previous to the decree by which she was released. The assured in every case must act according to the information he possesses. For the correctness of that information he is answerable, but he cannot be answerable that the state of things which existed at the period of its date, shall continue. The plaintiff, therefore, had a right to proceed, and make the abandonment upon the information he then possessed; and the abandonment being rightfully made, must be definitive. 1 The contrary idea is inconsistent with a perfect right to abandon, and would render it precarious and uncertain, by being subject to the contingency of intermediate events, and liable to be defeated. To preserve consistency in the law on this subject, and to establish certainty in its rules, it is necessary to maintain the conclusiveness of an abandon- ment when properly made, and to allow the plaintiff to recover for a total loss. Judgment for the plaintiff. Cited in Uohns. Cas., 153 ; 2 Johns. Cas., 363; 3 Johns. Cas., 294 ; 1 Caine Cas., 38 ; 7 Cow., 63, 70 ; 3 Hill, 295 ; 7 Rob., 459. 1. See contra, the cases of Church v. Bedient et al., and Peyton v. Hallett, decided in the Court of Errors, in 1804. Caines's Cases in Error, vol. 1, p. 21-43. But see Marshall, 525 ; Pothier, Cont. d'Inmir., . 138; 2 Emerij?., 195, 197. 279 151 SUPREME COURT, STATE OK NEW YORK. 179> SLOCUM AND BURLING v. THE UNITED INSURANCE COMPANY. Marine Insurance Abandonment Capture Release and Arrival. The Insured may abandon, on receiving informa- tion of the capture of the vessel insured, and may recover for a total loss, though the vessel be after- wards liberated and arrives in safety at her port of destination. An abandonment when once properly made is definitive, and fixes the rights of the parties. Citation 1 Johns. Cases, 147. THIS was an action on a policy of insurance dated the 26th January, 1799, on the car- go of the schooner Goliah. from New York to New Orleans. The cause was tried before Mr. Justice Kent, at the last circuit in the City of New York, when it appeared in evidence that the vessel, on the 14th February, 1799, while proceed- ing on her voyage, was taken by a British pri- vateer and carried into New Providence. As soon as the intelligence of her capture was re- ceived by the plaintiffs, to wit, on the 16th March following, he abandoned his interest to the defendants, offering the usual proofs of interest and of loss. The vessel was liberated on the 12th day of March, which could not have been known to either party at the time of the abandonment, and she afterwards 152*] *proceeded on her voyage with her cargo, and arrived in safety at New Orleans. Mr. Boyd, for the plaintiffs. Mr. Troup, for the defendants. The question submitted to the court was whether the plaintiffs were entitled to recover for a total, or a partial loss only. LANSING, Ch. J., delivered the opinion of the court: We have already decided this point in the case of Mumford v. Church, in the present term. The plaintiffs could only be governed by the information they possessed. On re- ceiving the intelligence of the capture, they were entitled to abandon, and an abandon- ment once properly made is definitive, and fixes the rights of the parties. It may be re- voked by mutual consent, or waived; but otherwise it is conclusive. 1 The plaintiffs are, therefore, entitled to re- cover as for a total loss. Judgment for the plaintiffs. THAYER v. ROGERS. Pleading Payment. Where the defendant pleaded two pleas of pay- ment to an action on a bond, one before the day and the other at the day, the court, on motion, ordered the first plea to be struck out. rPHE plaintiff declared in debt on bond, and -L the defendant, among other things, plead- 1. But see contra, Church v. Bedient et al., in the Court of Errors, Caines' Cases in Error, v. 1, p. 21-28. NOTE. Abandonment, what determines right of. See note to preceding case, Mumford v. Church. ed two pleas of payment, one before the day,, the other, payment at the day. Mr.Riggs,for the plaintiff, moved to strike out one of those pleas, on the ground that it was competent for the defendant, under the last- mentioned plea, to give in evidence payment before, as well as at the day. Mr. Harison, for the defendant, replied that both pleas were consistent, and each depended on a different ground of defence, and were,, therefore, properly pleaded. Per Curiam. Every matter of defense that can be admitted under the first plea, may be- given in evidence under the second. The first is, therefore, useless, and is ordered to be- struck out. NOTE. The defendant also pleaded four other pleas, some of which the plaintiff also- moved to strike out; but *the defense [*153 | appearing to be complicated, and the propriety of the pleas demanding a close examination, the court did not think it a case sufficiently clear to discriminate between them, and inter- fere in this peremptory manner. Rule granted. JACKSON, ex dem. KANE and KANE, v. STERNBERGH. 1. Judicial Sales Surplusage in Fi.fa. Sher- iff's Return. 2. Adverse Possession Tenant at Will. 3. Resulting Trust Sheriff's Salf Parol Evidence. The words in an alias fieri facias, "as before," &c., may be rejected as surplusage, no previous fi. fa. having in fact issued. An incorrect return by a sheriff of the fi. fa. will not defeat the sale, or aftect the purchaser's title. After a sale of land >y the sheriff under a fi. fa. the defendant becomes quasi a tenant at will to the purchaser, and his possession is not deemed adverse. Where a purchase was made at a sheriff's sale by a person as agent for the plaintiff, and the land was conveyed to the agent, it was held that the deed created a resulting trust for the plaintiff, which might be proved by petrol evidence. THIS was an action of ejectment. The cause- was tried before Mr. Justice Lewis at the last Montgomery circuit. The plaintiff offered in evidence exemplified copies of a judgment obtained in this court, in favour of the lessors of the plaintiff against the defendant, and one A. Sternbergh, and of &n alias fi. fa. issued thereon, and directed to the sheriff of Montgomery, with a return of the sheriff indorsed in the words following: "By virtue of the within writ, I have caused to be made of the goods and chattels, land* and tenements of the within named Peter and Adam Sternbergh, $2,062, parcel of the debt and damages within named, which said monies I have ready, &c., in part satisfaction of the said debt and damages, and I do fur-, ther certify, that the said Peter and Adam have no more goods or chattels, lands or tene- ments, in my bailiwick, whereof I can cause to be made the residue of the said debt and damages, or any part thereof." The plaintiff then produced a deed from the sheriff, con- veying the premises in question to one Cox, he JOHNSON'S CASES, 1. 1799 VREDENBEKGH v. WHITE AND STOUT. 153: being the purchaser at the sheriff's sale under the execution, and also a deed from Cox to the lessors of the plaintiff for the same prem- ises, executed on the same day. It further appeared by parol proof, that Cox was the agent or trustee merely of the lessors 154*] of the plaintiff, in *making the pur- chase, and that the defendant was, at the time of the sale, in the actual possession of the premises, and continued in possession until the time of the trial. A verdict was taken for the plaintiff, sub- ject to the opinion of the court, whether he was entitled to recover. On the argument the following points were made: 1. Whether the alias fi. fa. was regular, and ought to have been admitted in evidence, without showing that a fi. fa. had previously issued. 2. Whether the sheriff's return was suffi- cient, as it did not state that he had sold the lands and tenements of the defendant for want of goods and chattels ; and if insufficient, whether the return was essential to the title of the purchaser. 3. Whether parol proof of the trust in Cox could be admitted, and whether the possession of the defendant must not be deemed to have been adverse, and the conveyance by Cox to the lessors of the plaintiff, therefore, void. Mr. Van Vechten for the plaintiff. Messrs. Metcalf and Burr for the defendant. LANSING, Ch. J. The objection to the writ as an alias fi. fa. is merely formal. It is not pretended that any previous execution had issued against the defendant, or that the judg- ment was in any manner satisfied. The cir- cumstance of its being expressed to be an alias could not, therefore, prejudice any right of the defendant, nor could it vary the legal effect of the writ. I think that the clause constitut- ing it an alifts may well be rejected as surplus- age, and ought not to be allowed to defeat a title that was otherwise fairly acquired. If a former execution had issued and a levy had been attempted under the alias, the court would in a summary way have redressed the defendant by setting it aside for irregularity. As to the return of the sheriff, it in effect shows that there were no goods or chattels be- longing to the defendant; for after stating the sum which had been made of the goods and chattels, lands and tenements generally, it 155*] *certifies that the defendant had no other goods or chattels; and the whole sum levied was not sufficient to satisfy the exe- cution. But the sheriff's return, in my opinion, was not essential to the title of the purchaser. That title was not created by, nor dependent on the return, but was derived from the pre- vious sale made by the sheriff by virtue of his writ. It was sufficient for the purchaser that the sheriff had competent authority, and sold and executed a deed to him. The proceedings in the case of an extent upon an degil do not apply to the writ of fieri facias. On the writ of elegit no sale can be had, but the sheriff takes an inquisition by a jury who set off the moiety by metes and JOHNSON'S CASES, 1. bounds. The inquisition is there necessary to be returned, and, together with the return, constitutes the title. Here the sale and the sheriff's deed are sufficient evidence of the title, and if the purchaser can show that the sheriff has authority to sell it is enough, and he need not look farther. With regard to the intermediate conveyance to Cox, it appears that he acted as the agent of the lessors of the plaintiff merely, and re- ceived it as their trustee. The consideration money was not paid by him, but by the les- sors of the plaintiff, and a trust of course re- sulted for their benefit. The statute of frauds does not, therefore, apply; for a resulting trust or trust by the act or operation of law, is expressly excepted by that statute, and remains, as at common law, susceptible of proif by parol. If this were not the case, the trust in this instance was executed and extinguished by the conveyance of Cox to the lessors of the plaint- iff, and Cox could not afterwards defeat it. Considering Cox as a mere trustee, his pos- session was in fact the possession of the les- sors of the plaintiff. This alone is an answer to the argument founded on the idea of ad- verse possession. Besides, the possession of the defendant at the time of the conveyance by *Cox to the lessors of the plaintiff, [*156 can in no sense be deemed to be adverse. Cox held under the title of the defendant, and not in hostility to it; and the latter after the deed to Cox, became quasi his tenant at will, and would be deemed to continue in that character until an actual disseisin or disclaim- er on his part. This was not attempted, and Cox immediately conveyed to the lessors of the plaintiff, who then became lawfully seized. On every ground, therefore, I am of opinion that the plaintiff is entitled to judgment. RADCLIFF, J., KENT, J., and BENHON, /., were of the same opinion. LEWIS, J. I concur in the opinion which has been delivered, and the reasoning on which it is founded, except as to the last point. I do not consider the title of the lessors of the plaintiff as derived from, 'but paramount to that of the defendant. The plaintiff's right to recover cannot, however, be affected by that circumstance, as Cox was a mere agent acting for the lessors of the plaintiff, and it is im- material whether the sheriff's conveyance was made to him, or immediately to his principals. Judgment for the, plaintiff. Cited in 3 Johns., 221 ; 11 Johns., 95, 97 ; 18 Johns., 464 ; 4 Wend., 481 ; 8 Wend., 681 ; H. & IX, 142 ; 1 Johns. Ch., 590; 2 Paige, 238; 2 Barb., 207; 5 Barb.. 568 ; 11 Barb., 407 ; 59 Barb., 615 ; 5 Lans., 162. VREDENBERGH v. WHITE AND STOUT. Assignment for Benefit of Creditors Possession of Debtor. The possession of an insolvent, after a bona Me assignment of all his estate, for the benefit of all his creditors, is not fraudulent when continued at the request and for the benefit of his assignees, who had used reasonable diligence to get the possession. 156 SUPREME COURT, STATE OK NEW YORK. 1799 A JUDGMENT was obtained by the plaint- iff against the defendants, which was docketed, and the roll tiled on the 22d March, 1799. The defendant White, on the 12th of the same month had become insolvent, and on the 23d he assigned and conveyed all his estate, real and personal, to Waddington and others, in trust for the benefit of all his creditors. The conveyance was stated in the case as in- tended to be bona fide, and was executed at the dwelling-house of White, and a silver cup was delivered by him to the trustees in the name of all the property. The trustees did not remove any of the goods so assigned to 1*>7*J them, but advertised them for *sale at auction on the 30th April following, at the hous% occupied by White. On the same day, to wit: on the 30th April, &fi. fa. in this cause was delivered to the sheriff, and before the hour of sale was levied on part of the goods. Upon this, the trustees paid to the sheriff a certain sum of money, and the /. fa. was withdrawn, and they proceeded to sell, sub- ject to an agreement that the money in the hands of the sheriff should be paid to the plaintiff, or returned to the trustees, as the court should direct. Mr. Pendleton, for the plaintiff, contended, that the assignment to the trustees, in contem- plation of law, was fraudulent and void; that the possession of the goods remaining in White was a decisive badge of fraud, and it was not in his power to dispose of his prop- erty to the prejudice of any individual creditor, who had been more vigilant than the others. J/r. Harixon, for the trustees, insisted, that under the circumstances of this case, the pos- session remaining in White was no evidence of fraud. It was a conveyance for the benefit of all the creditors, and no actual fraud is pretended. LANSING, Ch. J., delivered the opinion of the court: The possession of the goods did not con- tinue in White for his own use or benefit. They were left with him for the accommoda- tion of the trustees, who, as representing all the creditors, could have no personal interest in removing them. No false credit was cre- ated, and the sale, which was within a reason- able time, does not appear to have been ac- celerated by the claim of the plaintiff. The possession of White was therefore not material, and was consistent with the real intent of the assignment. It is admitted that there was no intention of fraud, and the assignment being for the benefit of all the creditors, ought to be considered as valid. Let the money in the hand* of the sheriff be repaid to the trustees. 1 :>8*] *DENN, ex dem. WILKINSON, v. DODDS. Usury Deals upon Trusts. An absolute deed of conveyance of reul estate upon trusts, was not allowed to be act aside on the ground of usury. 2S2 THIS was an action of ejectment, for a lot of land in the city of New York. The cause was tried before Mr. Justice Kent, at the New York Circuit, in March last. The plaintiff proved that his lessor was in possession of the premises for one year and upwards, before the defendant came into pos- session, and that the defendant claimed to hold under or through the lessor. Upon this evidence the plaintiff rested his cause; and the defendant moved for a nonsuit, insisting that he ought not to be put on his defense; which motion was overruled. The defendant then produced and proved a certain indenture, bearing date the 7th day of February, 1797, made between the lessor of the plaintiff, and Elizabeth, his wife, on the one part, and William Fosbrook on the other part, purporting to be a deed of trust, and re- citing three several mortgages, one bearing date the 5th January. 1796, made by the lessor of the plaintiff to the defendant, of the prem- ises, for securing the payment of 400 and interest, on the 15th day of May next, one other mortgage bearing date the 14th June, 1796, of the premises, for securing the pay- ment of the further sum of 600 and interest, on the 4th of December then next, and another indenture of mortgage bearing date the 18th day of August, 1796, for securing to the de- fendant the further sum of 300 with the interest, on the 4th day of December next, as well of the premises as of twenty-five feet square, adjoining the rear end thereof, as also of the equity of redemption of another lot of land, which was subject to the payment of 500 by a prior mortgage to William Alex- ander. * "In consideration of which said seve- ral mortgages, and of the sum of 10*. by the said William Fosbrook to the said lessor of the plaintiff paid, fec., the said lessor of the plaintiff did, by the said first mentioned in- denture, grant, "release, and convey to the said William *Fosbrook, forever (subject, [*15O nevertheless, to the mortgage aforesaid to the said William Alexander), all and singular the premises, &c., in the said several mortgages described, upon trust; and that Fosbrook, his heirs and assigns, should permit and suffer the lessor of the plaintiff (by and with the ap- probation and consent of the defendant, his heirs and assigns, in writing, but not other- wise) at any time before the 1st day of May then next, to contract and agree with any per- son or persons whomsoever, either publicly or privately, for the sale in fee-simple (subject to the said mortgage debt of 500 and interest, so due to the said William Alexander as afore- said), of all the premises aforesaid, or any part thereof, for cash; and that the said Fos- brook, his heirs and assigns, should and would ratify and confirm such contract and agreement, on receipt of the purchase money. And in case the lessor of the plaintiff should not make and conclude any such contract for the sale of the whole of the said premises be- fore the said 1st day of May then next ; then upon trust that the said William Fosbrook, his heirs and assigns, at any time thereafter, and on or before the 20th dav of May then next, should sell and dispose of the said premises, or such part thereof as should not be contracted for as aforesaid, subject to the said mortgage JOHNSON'S CASK*, 1. 1799 SPALIJERG v. WALROD. 159 debt of 500 and interest so due to the said William Alexander, at public vendue, for the best price or prices that could be had for the same, and the moneys arising from the sale of the premises aforesaid, either by the contract of the lessor of the plaintiff or otherwise, after satisfying t the costs of the same indent- ure, and of such sales, he, the said William Fosbrook, his heirs and assigns, should and would apply in the first place to the payment of the three several mortgage debts first men- tioned, and the interest thereon, unto the de- fendant, his executors, administrators and assigns, and in the next place to the payment of the sum of 206 15s. due to the defendant on a, judgment, and of a sum of 25 due to John Sleght & Co. for shingles; and after payment of the said several sums respectively, the sur- 16O*] plus money, if *any, arising from such sales, should be paid to the lessor of the plaintiff, his executors, administrators, or assigns." It was again moved by the counsel on the part of the defendant, that the plaintiff should be called to produce further evidence, or be nonsuited. The plaintiff then called on the defendant to produce the three several mortgages made by the lessor of the plaintiff and recited in the aforesaid deed of trust,' and the defendant having refused to produce the same, the plaintiff offered William Alexander as a wit- ness, to prove that the mortgages, which were part of the considerations of the said trust deed, were usurious, and made to secure the payment of money lent to the lessor of the plaintiff at usurious interest; and also to prove that the trust to pay John Sleght & Co. 25 for shingles (which it was admitted was not a usurious debt), was fulfilled by the trustee. The plaintiff also offered to prove that all the premises mentioned in the trust deed had been sold and conveyed by the trustee, in pur- suance of the trust to Quinten Millen, who had become a nominal purchaser, but in fact had purchased for the benefit of the defend- ant and had accordingly conveyed the premises to the defendant; to produce which conveyance the plaintiff had given the defendant notice. Upon this the judge at the trial ruled that admitting the proofs offered by the plaintiff, the considerations expressed in the deed of trust were sufficient to sustain it, and showed a title out of the lessor of the plaintiff, and, therefore, ordered the plaintiff to be called, and a nonsuit to be entered. Mr. Evertson, for the plaintiff, moved to set aside the nonsuit, on the ground that the considerations of the conveyance to Fosbrook, except as to the debts due to Sleght & Co., were usurious, and the conveyance therefore void, and that the debt to Sleght & Co. had been paid, and the trust being so far executed, no legal consideration remained to uphold the conveyance. 161*] *Mr.f}t/rr,for thedefendant, contend- ed that the conveyance was valid and not within the statute against usury.but that if it were with- in that statute, the consideration, so far as it was founded on the debt due to Sleght & Co., was not usurious, and being good in part, it was sufficient to support the conveyance, which could not be avoided by a partial and subse- quent execution of the trust. JOHNSON'S CASES, 1. Per Curiam. We are of opinion that the consideration of the deed of trust was suffi- cient, and that it was not a conveyance within the statute against usury. That statute ap- plies to contracts and assurances by way of security for existing debts only. This was not a security, but an absolute conveyance upon trusts, and operated as a payment or satisfaction of the debts mentioned in it, which debts, upon the performance of the trusts, would be discharged and extinguished. It was an act done in execution of the previous con- tracts by which the usurious debts were cre- ated, and nothing but the trusts remained for the benefit of the grantor. An act of this nat- ure cannot be rescinded on the ground of usury. If that were permitted in the case of an absolute conveyance, or a conveyance upon trusts, the consequences would be extensively injurious. No man could be safe in his title to real property, if the question of usury might at any time be opened to impeach the consideration and validity of the deeds under which he claimed. It is obvious that the doctrine to this extent could not be tolerated. Motion denied. Cited in-2 Hill, 524; 6 N. Y., 113; 89 N.Y., 276; 5 Barb., 302; 11 Barb., 88. *SPALBERGH o. WALROD. [*1O2 Costs Trespass Verdict far ten dollars. In an action of trespass quare domum fregit, and for assault and battery, &c., and a general verdict for the plaintiff for $10 damages, the plaintiff was allowed to recover costs. THE plaintiff declared in trespass quare d*>- murnfrefftt,and for an assault and battery on his daughter and debauching her, per quod servitium ammt, &c. On the trial the plaintiff obtained a verdict with $10 damages. Mr. Gold, for the defendant, moved for costs against the plaintiff, on the ground that this was, essentially, an action on the case, and not within the spirit or intent of the act allowing costs in actions of trespass quare dausumfrcgit, or in assault and battery, where the recovery exceeds forty shillings. (10 Sess., c. 14.) Mr. VanVechten, for the plaintiff, contended that this was properly an action of trespass for entering the plaintiffs house, and this alone, without regarding the other charges laid in the declaration, was sufficient to entitle the plaintiff to costs. LANSING, Ch. J., delivered the opinion of the court: The application respects the costs only; we are, therefore, not now to consider whether the declaration contains separate counts or blends in the same count different causes of action which cannot be joined. One of tilt- injuries complained of is the breaking the plaintiff's house, and of this the defendant is found guilty by the verdict, which is general, and applies to all the matters charged in the 283 162 SUPREME COURT, STATE OF NEW YORK. declaration. The plaintiff is therefore en- titled to costs, instead of being liable for costs to the defendant. Rule refused. Cited in -18 Wend., 618 ; 10 How. Pr., 408. 163*]* JACKSON, ex dem. COODER ET AL. 0. WOODS. Witts Husband or Wife as Witness Letters on Beneficiary. If either husband or wife be a witness to a will containing' a devise or legacy to either, such devise is void by the statute concerning- wills ; and the de- visee or lagatee thereby becomes a competent wit- ness to the will. Citations Ld. Raym., 505; Carth., 514; 2 Stra., 1253 ; and see 1 Burr., 414 ; note to Day Cas. in Error (Conn.), 41-48. THIS was an action of ejectment. The jury found a special verdict which in substance stated that S. Ellis died seized of the premises in question; that the lessors are his heirs; that the said Ellis, in the year 1794, made his will and devised the premises to a person under whom the defendant claims ; that he also thereby devised tooneRiley a lot of land, not part of the premises, for life, and bequeathed to him a legacy of 100, and devised another part of his estate to the lessors of the plaintiff, and shortly thereafter died; that the said Riley also died soon after the testator; that the will was exe- cutec in the presence of three witnesses, one of whom was the wife of Riley; that the will was proved on the trial by one of the other sub- scribing witnesses, and they found a verdict for the plaintiff ,if the court should be of opin- ion that the will was not duly executed, other- wise for the defendant. Mr. Troup,iov the plaintiff, contended that the wife of Riley was not a competent witness to establish the will, which contained a devi.se and bequest to her husband, and that without her the will did not appear to be duly exe- cuted in the presence of three witnesses, as is required by the statute. Mr. C. I. Rogert, contra, insisted that thedevise and bequest to the husband were void within the 6th section of the statute concerning wills (Stat. 3d March, 1787, which in this respect is the same as the Stat. 25 Geo. II., c. 6), and that the wife was therefore a competent wit- ness. LANHENO, Ch. J. The decision of this cause depends on the single point whether the wife of Riley is a credible witness, within the in- tent of the statute concerning wills. On the question whether a credible witness means a competent witness, since the statute, and whether his credibility or competency shall relate to the time of attestation, or to the time lO4*]of his examination, much *learningand ingenuity have been formerly displayed. The arguments of Lord Mansfield and Lord Cam- den, both deservedly celebrated for their legal discernment, have so fully developed the 2*4 principles which bear upon this point, as to- leave only the alternative of adopting one or the other of their opinions on their own rea- soning, if the question cannot be determined on authority. The 6th, 7th, and 8th sections of our statutes are transcripts from the 25 Geo. II., chap. 6, sec. 1, 2, 3, 4, 5 and 6. The 6th section provides, " that if any per- son hath attested the execution of any will or codicil, after the 1st day of March, 1753 or shall attest the examination of any will or codicil thereafter to be made, to whom any beneficial devise, legacy, estate, interest, gift or appointment of, or affecting any real or personal estate (other than for payment of debts), shall be thereby given, such devise, legacy, estate, interest, gift or appointment, shall, so far only as concerns such person at- testing the execution of such will, or any per- son claiming under him, be utterly null and void, and such person shall be admitted as a witness to the execution of such will or codi- i cil." The 7th section directs that creditors may I be witnesses in cases where real estate is charged by the will with the payment of debts, and that any person having attested the exe- cution of a will or codicil, on or before the 1st day of March, 1753, to whom any legacy or bequest is thereby given, whether charged upon lands, tenements, or hereditaments or not, who has been paid, accepted or released, or refused to accept such legacy or bequest upou tender, shall be admitted as a witness to prove the execution of such will or codicil, and if he died in the testator's lifetime, or be- fore he received, released, or refused on ten- der, he shall be a legal witness. In reviewing these different provisions, it is obvious that the English statute which we have literally adopted in our revised laws, did not originally lay down an uniform rule by which to test the cases which had*aris-[*l<55 en before and subsequent to the period men- tioned in the statute. This variance was evi- dently dictated by motives of expediency. It evinced a disposition in the Legislature by posi- tive provision, to remove doubts which exist- ed as to the true construction of the statute of 29 Car. II., c. 3, but to adapt these pro- visions as nearly as possible to the situation in which the subject had been placed by the collision of judicial opinions. This is to be traced from the different and discordant remedies ; for in all cases which occurred before the 1st of March, 1753, an ex- tinguishment of the legacy constituted the legatee a credible witness, but in cases which occurred after that day, the absolute and un- conditional avoidance of the devise or legacy placed him in the same situation as to credi- bility ; thus in the one case permitting the legatee to avail himself of the bequest, and imposing it on the party who was interested to procure his testimony, to provide for ite ! satisfaction ; in the other, creating an insur- | mountable obstacle to its enuring to his bene- i fit, by completely disqualifying him from taking under it. From these provisions no satisfactory infer- i onoe can be drawn of the sense of the British '. Parliament, as to what was the law before the JOHNSON'S CASES, 1. 1799 JACKSON, EX DEM. COODER ET AL., v. WOODS. 165 passing of the statute. This may, in some measure, be accounted for from the nature of the subject. The requiring of witnesses with certain qualifications, was novel in the Eng- lish law. To guard effectually against fraud, by removing the semblance of temptation to commit it, was a desirable object. The doc- trine of the common law, that the credibility of the witness must be determined at the time of his production, from his then actual situ- ation, might expose him to be practiced upon. These considerations dictated the expediency of applying a radical cure to the evil. But the remedy has as little analogy to the one as to the other opinion, which seems to have ob- tained before the statute, the one holding that a release, &c., would make the witness com- petent, and restore his credibility if he was a devisee ; the other merely including the lega- 166*] tee as a witness, *and leaving him to seek satisfaction from the personal assets of the testator, by the aid of the testimony of other witnesses, which his own incompetency would preclude him from effecting. The statute, however, avoided both devise and legacy. In "the case of Billiard v. Jennings (Ld. Raym., 505 ; Garth., 514), it was held that a devisee was not a credible witness within the purview of the statute. In the case of Holdfast, ex dern. Anstey, v. Dowsing (2 Stra. , 1253), John Hailes was one of the witnesses to the will of James Thomp- son, by which an annuity of 20 per annum, charged on the real and personal estate of the testator, was given to Elizabeth, the wife of John Hailes, for her life, and to her separate use ; and to Hailes and his wife, each a lega- cy of 101. Twenty pounds was tendered to Hailes, for the legacies to him and his wife, which he refused to accept. Chief Justice Lee, and the other judges of the K. B., ruled that Hailes was not a credible witness within the intent of the statute of frauds. From the case of Brinee v. Lloyd (1 Vesey, 503), it appears that the case of Anstey v. Dorr- xitig was brought into the Exchequer Cham- ber, where there was a difference of opinion among the judges, but the parties having com- promised, it was not determined. After the stat. of 25 Geo. II. was passed, the first case found in the books was deter- mined in the Court of K. B., (28 Geo. II). It was the case of Wyndluimv. Chetwynd (IBurr., 414), on the will of Walter Chetwynd, dated the 14th day of May, 1750, and consequently prior to the statute of 25 Geo. II. This will contained a devise subjecting the testator's real estate to the payment of his debts, and three of his creditors were witnesses to its exe- cution. The clause in that statute respecting credit- ors who were witnesses, has fully established their credit ; for the statute, as far as it re- lates to creditors, has a retrospective effect, and was evidently intended as declaratory. This renders the ground the Court of C. B., took on that occasion, an unaccountable cir- 167*] *cumstance ; for instead of deciding the case on the positive provisions of the stat- ute, Lord Mansfield resorts to a train of reason- ing, as if that statute did not exist, and dis- cusses the doctrine of the competency and JOANSON'S CASES, 1. credibility of the witnessess in a very clear and elaborate argument. His argument, how- ever, throughout is intended as a vindication of the point that an interested witness at the time of attestation may, by being devested of his interest at the time of his examination, be- come credible. The case of Doe, ex dem. Kindson, v. Ker- sey, 1 arose on a will of John Knott, which took effect before the statute of Geo. II. By the will an estate was devised to trustees for the use of the poor of the town of Maulsmeaburn. Two of the witnesses were trustees, and all were seized of land in fee-simple in the town- ship. The two trustees had, before the trial, released all their interest under the will to their co-trustees, and had devested themselves of their estates. It was held by Clive, /. , Bathurst, J., and Gould, J., against Pratt, Oh. J., that the release and devesting themselves of their interest had made them competent witnesses. From this it appears that both in the K. B. and C. P., in England, the same doctrine has been supported by the last adjudications on the point, to wit, that the credibility of the witness is to be tested from his situation at the time of examination, and not at the time of his attestation. These opinions have been acquiesced in; they govern as authority; they had the force of authority before our rev- olution, and I think as far as they apply to the present case, they ought to be conclusive. In the present case the evidence of the interest of the witness, which is only conse- quential, cannot operate to affect the interest of the devisee, her husband. It is, therefore, not a case within the statute, and she has not even an interest of any kind at present. Her husband's estate, which he took as devisee, ex- pired with his life; and it does not *ap- [*168 pear that he has any interest in the pecu- niary legacy. She is, therefore, in my opinion, a credible witness within the intent of the statute. I cannot discover that the unity of person, in legal construction, attributed to the husband and wife, brings this case within the purview of that part of the statute which avoids the legacy; for I think that the statute, which is intended to derogate from a common right, is not to be extended by construction beyond the precise object described in it. The husband and wife, with respect to legacies, are consid- ered as distinct, each possessing the power of acquiring property in that mode; and if she is a legatee, and her husband does not obtain satisfaction of the legacy in his lifetime, it survives to her. Several other cases might be put to show that the legal existence of the wife is not so completely merged in that of her husband as the generality of the doctrine respecting it seems to import. Upon the whole, I am of opinion that judgment should be rendered for the defendant. LEWIS, J., concurred. BENSON, J. I agree to the result of the opinion delivered by the Chief Justice, but for 1. Decided in Easter Term, 1765, and published separately in 1766, in 4to. It is printed in a note, in Day's Cases in Error. (Connecticut), p. 41-S8.) 168 SUPREME COURT, STATE OF NEW YORK. 1799 different reasons. My opinion is founded solely on the ground that the unity of husband and wife, in legal contemplation, is such, that if either be a witness to a will containing a devise or legacy to the other, such devise or legacy is void within the intent of the statute. This is a simple rule dictated by common sense. The reason of the provision contained in the statute, applies equally to the present case, and I think it ought to receive a liberal construction in support of a will. I consider, therefore, both the devise and legacy to Riley as void; that his wife is thus a competent wit- ness, and that the will, as to the other dispo- sitions in it, was duly executed. KENT, J., and RADCLIFF, J., were of the same opinion. Judgment for the defendant. Cited in 2 Johns. Cas., 315. 169*] *SHELDON v. M'EVERS. Practice Rule to join in error Sri. fa. ad. and convey. In error from a court of common pleas, the plaintiff may proceed by a rule on the defendant to join in error, or by a sctre facias ad audiendum errorea. IN error from the Court of Common Pleas, of the County of Albany. Mr. Yates, for the plaintiff in error, pro- duced an affidavit of the due service of a rule requiring the defendant to join in error, or that the defendant be heard ex-parte, and he moved to be heard accordingly. The only question was, whether this pro- ceeding by rule was regular. Per Curiam. The plaintiff may proceed by rule to join in error only, or by set. fa. ad. and. errores, and as the defendant does not appear, let the judgment be reversed of course. Judgment reversed. PRIOR v. JACOCKS. Set-off Plea Payments to Payee Action by Indorsee. In an action on a promissory note by the indorsee against the maker, the defendant pleaded non as- sumpxit, and payment as to all, except 40 cents, and payment of the 40 cents to the payee of the note be- fore it was indorsed, and gave notice of a set-off of large sums of money paid to the payee, and other sums due to him from the payee for goods sold and delivered, it was held that the defendant cannot set off more than the sum pleaded ; and that payments made to the payee of a note cannot be set up against t tic indorsee in an action against the maker. THIS was an action brought by the plaintiff as indorsee of a promissory note made by the defendant to one Clark, dated 5th Decem- ber, 1796, and payable to him or order, in three months. The declaration was in the usual form, and the defendant pleaded: 1st. Non assumptdt generally; 2d. Non assumpsit, as to all the sum contained in the note, except 40 cents, 286 and payment of the 40 cents to Clark before the indorsement to the plaintiff, with a notice subjoined to the last plea, that he would give in evidence, and set off several large sums of money paid to Clark, and other sums for which Clark was indebted to him for goods sold and delivered, &c. The plaintiff replied that the defendant had not paid the said 40 cents, &c., and, there- upon issue was joined. *On the trial the plaintiff proved the [*1 7O note and indorsement, and admitted the pay- ment of the 40 cents. The defendant then offered to prove further payments to Clark, which evidence was ob- jected to by the plaintiff and overruled by the judge. A verdict was found for the plaintiff, for the amount of the note, deducting the 40 cents. The defendant applied for a new trial, on the ground that evidence of further payments to Clark ought to have been admitted. Mr. Henry for the plaintiff. Mr. Spencer for the defendant. BENSON, J., delivered the opinion of the court: Admitting the payment of the 40 cents to Clark to have been properly pleaded, the defendant could not, under this notice, prove a payment beyond that sum. If the action had been in debt, the plaintiff as to that plea might have entered a notte prosequi as to the 40 cents, and prayed final judgment for the residue. In the present case, he might have made the like entry, and then prayed in- terlocutory judgment, and he would have been equally entitled to the residue on an assessment of damages. Besides, the defendant could not, under this notice, set off any demand founded on mutual dealings between him and the payee of the note, who is not a party to the suit. The act allowing a set-off in such cases, applies only to the parties themselves. Independent of the pleadings, the indorsee of a negotiable note cannot be affected by any dealings between the original parties. This rule is essential to the credit of such paper. There are exceptions to the rule, where a note has been unfairly obtained, or dishonoured, or indorsed when overdue. In such cases, the holder stands in the place of the antece- dent parties, and is liable to meet every de- fence which might equitably be made against him. But in general, he is not liable to such defence. Judgment for the plaintiff. Cited in 5 Wend., 350; 7 Wend., 224. *ENSIGN v. WANDS. [*171 Partnership Limitation by Liability Creditors. Where there is a special and limited partnership, and persons deal with it knowingly as such, they are bound by the terms of such copartnership, and cannot hold the parties beyond them. NOTE. Agreements between partners, when third parties bound thereby. See Hastings v. Hopkinson, 28 Vt., 108 ; Gallway v. Matthew, 10 East., 264. JOHNSON'S CASES, 1. 1799 WlrtTE V. DE VILLIERS AND WILLIAMS. 171 THIS was an action of assumpsit for goods sold and delivered. The defendant pleaded in abatement that the plaintiff and C. R. Webster, and G. Webster, were partners in trade at the time of making the supposed con- tract, and that the promises charged in the declaration were made by the defendant to the said partners jointly, and not to the plaintiff severally. On this plea issue was joined, and the cause was tried before Mr. Chief Justice Lansing, at the Albany circuit, in July last. It appeared in evidence that the goods for which this action was brought consisted of several quantities of paper which were sold to the defendant, by the plaintiff, at a paper-mill owned by the plaintiff and the Websters joint- ly, who were concerned together in the man- ufacture of paper at the mill; that the Web- sters were in the habit of taking paper from it and selling it on their separate account, and the plaintiff did the like on his account; that this was understood between them to be the right of each owner, and the course of the business; and no paper was sold on their joint account; that at different times they accounted to each other for the value of the sales so made, without any reference to the purchasers or to outstanding debts, which were not con- sidered to be due to them jointly, but for which they were separately held accountable to each other according to their sales, and that the plaintiff had accounted to and satisfied the Websters for all the paper sold by him, in- cluding the parcel sold to the defendant. It further appeared, that after a considera- ble part, and before the whole of the paper for which this action was brought had been de- livered to the defendant, he informed the plaintiff that he wished to consider the sale as made by the plaintiff solely, and independent- 172*] ly of the other *owners, to which the plaintiff replied that he considered it as made in that manner. On this evidence, the Chief Justice was of opinion that the plaintiff was entitled to re- cover, and a verdict was found accordingly. Mr. Bird, for the defendants, moved for a new trial, on the ground that this was strictly a partnership debt, and could not, from its nature, be severed by the acts of the parties, so as to entitle one of them to maintain this action. Mr. Van Vechten, contra, insisted that the partnership was special, and the course of its dealings was understood by the defendant, and in this instance particularly assented to by him. He was therefore precluded from making his objection. Per Curiam. The partnership between the plaintiff and the Websters was special. As between themselves it was certainly competent to make it so. The moment a sale was made by one of them he immediately became charge- able with the amount, and the profits accrued with certainty to the others, who were no longer subject to the general risk of loss. The de- fendant understood this to be the course of their dealings, or at least requested that the sales to him might be considered as made with the plaintiff solely, to which the latter as- sented. It was, therefore, not a sale as from joint partners, either in respect to the plaint- JOHNSON'S CASES, 1. iff's situation with the Websters, or to the con- tract as made with the defendant, and we think that the plaintiff may well maintain thia action. Judgment for the plaintiff. Cited in 9 Johns., 485. *WHITE 0. DE VILLIERS AND WILLIAMS. Indemnity Against Mortgage Bond. On a sale of lands, a bond was given by the grantee to save the grantor harmless against a cer- tain mortgage, which was an incumbrance on the land; it was held that by the fair construction of the condition, the grantor was to be indemnified against the bond accompanying the mortgage, and for which the mortgage was given merely as collateral security. THIS was an action of debt on a bond, con- ditioned as follows: " Whereas the above named James White did, on the 19th day of September, in the year of our Lord 1792, pur- chase of Michael Gratz, of the city of Phila- delphia, a certain tract of land situated in the County of Otsego, for the sum of 1,162. Ite. lawful" money of the State of New York, and for securing the payment thereof, mortgage the said premises to the said Michael Gratz. And whereas the said James White hath this day conveyed the said land to the said Lewis De Villiers and Rensselaer Williams, Jun. Now, the condition of this obligation is such that if the above bound Lewis De Villiers and Rensselaer Williams, Jun. , their heirs, execu- tors and administrators, shall and do save and keep harmless, and indemnified the said James White and his assigns, of and from all suits, costs, damages, and expenses whatsoever, which shall and may happen or come to him or them, for or by reason of the said mortgage, then the above obligation to be void, or else to remain in full force and virtue." The defendants, after craving oyer of the bond and condition, pleaded non damnificatus. The plaintiff replied that he was damnified, &c., in being obliged to pay a large sum of money, by reason of the said mortgage, &c. The defendant rejoined, traversing that fact, and issue was taken thereon. The cause was tried before Mr. Justice Lewis, at the last circuit in Otsego County. The plaintiff proved that he had been com- pelled to pay the amount due on the bond ac- companying the mortgage above mentioned, which bond was referred to in the mortgage, and for the payment of which the mortgage was given as a collateral security. The judge at the trial ruled that the plaintiff was en- titled to recover the amount he had so paid on the bond. *A verdict was thereupon taken by [*174 consent for the plaintiff for the amount so paid, subject to the opinion of the court, and if the court should be of opinion in favour of the defendant, it was agreed that a nonsuit should be entered. Mr. Burr, for the plaintiff, contended that the 287 174 SUPREME COTTHT, STATE OF NEW YORK 1799 condition of the bond on which this action was brought, could rationally admit of no other interpretation than that it was intended to in- demif y the plaintiff against the debt which the mortgage was given to secure, and of course equally to indemnify him against the bond which accompanied it. Mr. Van Vechten, for the defendant, argued that the bond was not within the tenor of the condition, which was expressly confined to the mortgage, and that the court could not by con- struction extend the sense of the contract. Per Curiam. The land mentioned in the condition was sold by the plaintiff subject to the incumbrance of the mortgage, and under n agreement to be indemnified against it. The amount due on the mortgage must there- fore have entered into the price, and according to the spirit of the contract, was to be paid by the defendant. The bond and mortgage could not have been considered as separate debts. They were con- current securities for the same demand, and the idemnity against one includes an idemnity against both. We are therefore of opinion that the plaintiff is entitled to recover according to the verdict. 4 Judgment for the plaintiff. -Cited in 63 N. Y., 615. LAWLER, Administratrix of LAWLER, v. KEAQUICK. Negligence Consignment No Sale Storage of Goods. Goods were shipped on board of a vessel and con- signed to the master, to be sold at Bourdeaux. The master not being able to find a purchaser, left the goods at Bourdeaux, and returned to New York. It was held that having acted bona fide, he was not liable to the owner. was a special action on the case in J_ which the plaintiff declared as follows: "1. For that whereas on the 3d of July, in the year of our Lord 1795, at the city of New 175*] York, and in the fifth *ward of the said city, and within the County of New York, in consideration that W. L. in his life- time, at the special instance and request of the said defendant had caused to be delivered to the said defendant, divers goods, wares and, merchandises of him, the said W. L., to be transported, carried, and conveyed by the said defendant, in a certain ship or vessel, whereof the said defendant was then master and com- mander, from the port of New York to Bourdeaux, in the republic of France, and there, to wit, at the port of Bourdeaux afore- said, to be sold by the said defendant for the said W. L. (the perils and dangers of the seas only excepted), for a certain price or reward therefor, to be paid by the said W. L. to the said defendant, he, the said defendant, then and there undertook and faithfully promised the said W. L. in his lifetime, safely and 288 surely to transport, carry and convey the said goods, wares and merchandises, from the said port of New York to Bourdeaux, in the repub- lic of France, and there, to wit, at the port of Bourdeaux, in the republic of France, to sell and dispose of the said goods, wares and mer- chandises, to and for the use of the said W. L. ; and although the said defendant after- wards, to wit, on the same day and year afore- said, at New York, at the city, ward and county aforesaid, had and received the said goods, wares and merchandises; and although the said defendant did afterwards, to wit, on the 1st day of October, 1795, arrive with the said goods, wares and merchandises, on board the said ship, whereof the said defendant was then master, at Bourdeaux, in the republic of France; yet the said defendant, not regarding his said promise and imdertaking, did not sell or dispose of the said goods, wares and mer- chandises, for the said W. L. in his lifetime, though often requested so to do by the said W. L. in his lifetime, and by the plaintiff since his death, afterwards, to wit, on the 1st day of May, 1797, at the city, ward and county aforesaid; but the defendant always refused and still refuses so to do. "2. And whereas, the said W. L. in his lifetime, to wit, on the 3d day of July, 1795, at the city, ward and county *af oresaid, [*1 76 at the special instance and request of the said defendant, shipped in good order, and well conditioned, in and upon the good ship called the Iris, whereof the said defendant was then master, then riding at anchor in the harbor of New York, the goods and merchandises following, to wit, sixty boxes of turpentine soap, of the value of *1,000 dollars, current money of New York, from thence to be trans- ported in like good order and condition, by the said defendant, to the port of Bourdeaux, in the republic of France (the dangers of the seas only excepted), he, the said W. L., paying therefor at the rate of six pounds sterling (which is equal to 26 dollars and 66 cents, cur- rent money of New York), by the ton, with primage and average accustomed; and there to be sold by the said defendant for the said W. L.,the said defendant receiving for his trouble the usual commissions in such case; the said defendant, in consideration of the premises, afterwards, to wit, on the same day and year aforesaid, at the city, ward, and within the county aforesaid, assumed upon himself arid to the said W. L. in his lifetime, then and there faithfully promised that he, the said defendant, the said goods and merchan- dises last mentioned, from thence, would transport in like good order, and well condi- tioned (the dangers of the seas only excepted), and on his, the defendant's arrival at Bourdeaux, in the republic of France, would sell and dispose of the said goods and mer- chandises last mentioned, and account with the said W. L. for the same: and although the ship aforesaid, with the goods and merchan- dises aforesaid therein loaded, afterwards, to wit, on the first day of October, 1795, at Bourdeaux, in the republic of France, to wit at the city, ward, and within the county aforesaid, safely arrived, and although the dangers of the seas did not hinder; and JOHNSON'S CASES, 1. 1799 THE PEOPLE v. THE JUSTICES, ETC. 176 although the said W. L. in his lifetime, and the plaintiff, always since his death hitherto, were ready to pay the said defendant, accord- ing to the rate aforesaid, and his said commis- sions, with primage and average for the trans- portation and selling of the goods and mer- chandises. Nevertheless the said defendant contriving and intending the said W. L. in his lifetime, and the plaintiff, after the death of 177*] the said W. L., to deceive *and de- fraud, the goods and merchandises aforesaid did not sell or dispose of, nor did he account to the said W. L. in his lifetime for the same, or to the plaintiff after the death of the said W. L., although the said defendant was often requested by the said W. L. in his lifetime, and by the plaintiff since his death, to wit, on the first day of May, 1797, but to account for the same the said defendant hath hitherto .altogether refused, and still doth refuse," &c. The third count varied from the second only in stating that the defendant undertook to in- vest the proceeds in the article of brandy, and to remit the same to the plaintiff. To these the common money counts were added. Plea, the general issue. The action was tried before Mr. Justice Ho- bart, at a circuit court held in the city of New York in December, 1797. On the trial the plaintiff gave in evidence a bill of lading signed by the defendant, in the words following: "Shipped in good order and well condition- ed, by Wm. Lawler, in and upon the good ship called the Iris, whereof is master, for the pres- ent voyage, John Keaquick, now riding at anchor in the harbour of New York, and bound for Bourdeaux, to say, sixty boxes turpentine soap, No. 1 to No. 60, being marked and num- bered as in the margin, and are to be delivered in like good order and well conditioned at the aforesaid port of Bourdeaux (the danger of the seas only excepted), unto the said John Kea- quick, or to his assigns, he or they paying freight for the said sixty boxes soap at the rate of .six pounds sterling per ton, with primage and average accustomed. In witness whereof, the master or purser of the ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplish- ed, the others to stand void. Dated in New York the 3d day of July, 1795. "Signed JOHN KEAQUICK." The plaintiff then produced a witness who testified that the defendant had told him that 178*] he arrived in safety, *with the soap mentioned in the bill of lading, at Bourdeaux, but could not sell it there, and therefore left it for sale with a Mr. Jones, a merchant at that place. The plaintiff then offered to prove the price of soap of the like quality at the city of New York at the time of the shipment, as the meas- ure of damages which he was entitled to re- cover; which evidence was objected to on the part of the defendant, but was admitted by the judge, and the value in the market at New York was accordingly proved. The defendant moved for a nonsuit on the general ground that the evidence did not sup- port any of the counts contained in the declara- tion, which motion was overruled; and the JOHNSON'S CASES, 1. N. Y RKP., BOOK 1. judge charged the jury that the defendant, having accepted the office of factor generally, was guilty of a default in not disposing of the goods at Bourdeaux or returning them to the plaintiff; that he was properly chargeable in this form of action, and that the price of the article at the port of New York was the just criterion of damages. The jury found accordingly for the plaintiff, with damages equal to the value of the article in the market at New York, without any de- duction. On a motion for a new trial, the following points were argued: 1st. Whether the defendant had incurred any default so as to render him at all liable to the plaintiff. 3d. Whether the value of the goods at New York or Bourdeaux ought to constitute the rule of damages. 3d. If the value at Bordeaux be the proper rule, whether primage, average and freight, ought not to be deducted. Mr. Troup for the plaintiff. Mr. Hoffman for the defendant. Per Curiam. We are of opinion, on the first point, that the plaintiff is not entitled to re- cover. The defendant, in his capacity of master, has clearly performed his duty. In his char- acter of bailee or consignee of the goods, *nothingrnore, under the circumstances [* 1 79 in which he was placed at Bourdeaux, could be reasonably required than what appears to have been done. He could not sell without a purchaser, and considering his double capacity of ma-iter and consignee, of which the plaintiff was fully apprised, he was not obliged to wait an indefinite period to effect a sale. He would no doubt have been liable for fraud, or gross neglect, crastta neglige /ilia,, but acting with good faith, he was bound to exercise ordinary at- tention and diligence only, which he appears to have done. The parties submitting to this opinion, a judgment of nonsuit was directed to be en- tered. Cited in 1 Cow., 659 ; 6 Cow., 134 ; 83 N. Y., 608. THE PEOPLE v. THE JUSTICES OF THE SESSIONS OF THE COUNTY OF CHENANGO. New Trial By Court of Sessions Judgment Mandamus. The Court of Sessions being a court of inferior ju- risdiction, has no power to grant a new trial, after a verdict on the merits ; and a mandamus was award- ed, to compel them to enter judgment. HOFFMAN, Attorney-General, at a former term obtained a rule that the justices of the General Sessions of the Peace of the County of Chenango, show cause why a mandamus should not issue, commanding them to pro- ceed to judgment against one Noah Taylor, who had been convicted before them of a felony. 19 28 179 SUPREME COURT, STATE OF NEW YORK. 1799 The justices showed for cause that they had awarded a new trial on the merits, the convic- tion, in their opinion, being against evidence. Upon this the court directed an argument on the following points: 1st. Whether the sessions have power to grant a new trial in any case, except for ir- regularity. 3d. If they have such power, whether it ex- tends to a case of felony. These questions were argued by the Attor- ney-General for the people, and Mr. Riggs on the part of the sessions. Per Curiam. We are clearly of opinion that the General Sessions of the Peace is in every 18O*] respect to be considered *as a court of inferior jurisdiction. In its original organiza- tion it was created an inferior court, subordi- nate to this court, and subject to its controul. In the colonial system it had no other preten- sion, and nothing in our constitution or laws has given it a different character. New powers have been granted to it; but they were express- ly granted by statute, and do not change the essential nature and constitution of the court. It is still limited in its jurisdiction both as to local extent and the nature of the offenses it is empowered to try. Its very constitution shows that it was designed and ought to be regarded as an inferior court. It is generally composed of justices who, from the manner of their ap- pointment and the tenure of their offices, can- not be expected to devote themselves to the science of the law, and do not feel that high responsibility which is attached to courts of general jurisdiction. It has always been considered and treated as an inferior court, subject to the general super- intendence of this court. Writs of error, certio- rari, msindamu8,&nd attachment, issue to it from this court. These writs conclusively show it to be subordinate, and prove the authority which has always been exercised over it. It is fit and proper that the courts of general sessions of the peace in the different counties should be under the control of a superintend- ing jurisdiction. These courts are wholly in- dependent of each other, and if their proceed- ings were not subject to be here reviewed, we might find different rules of law and of justice in almost every county. This would introduce disorder and "confusion, and be inconsistent with a regular and uniform administration of justice. The power of granting new trials can only be applied in a manner which precludes the possibility of its exercise being reviewed in this or any other court. It is a power of a very delicate nature, exercised on the motion of the party only. Its exercise in practice does not, and frequently from its nature and difficulty 181*] could not, be made *to appear on the record. If this power, therefore, did exist in an inferior court, it would exist without regu- lation or control, and the idea of an uncon- trolled power residing in an inferior jurisdic- tion is absurd. The jurisprudence of every country requires a regular gradation of courts and a common centre of judicial power. This is essential to its existence, and to preserve consistency and harmony in the administration of justice. 290 The general sessions in this State are more analogous to the sessions in England than to any other courts. These are considered as in- ferior courts, and denied the power of grant- ing new trials. Indeed, no inferior jurisdic- tion can possess this power without an express authority. It can derive nothing by inference or implication. Besides, this is a case of felony in which considerations of policy and expediency would prevent this court from granting a new trial. In such cases, the usual course is to recom- mend the convict for pardon. It is, therefore, an instance to show that the power of grant- ing new trials, if vested in an inferior court, would probably be often very indiscreetly ex- ercised. We are therefore of opinion that a manda- mus ought to be awarded. Rule made absolute. S. C., 2 Caines* Cas., 319. Approved 18 Wend., ft5. Limited 5 Wend., 39 ; 12 Wend., 272.. Cited in 3 Johns. Cas., 287 ; 17 Wend., 494 ; 20 N. Y.. 549 ; 2 Barb., 288 ; 16 Abb. N. S., 447 ; 1 Park., 370, 829 ; 1 Wheel., 497. THE PEOPLE v. THE JUSTICES OF THE DELAWARE COMMON PLEAS. Mandamus To Common Pleas To restore Attorney. The courts of common pleas in the several coun- ties are courts of inferior jurisdiction, and a manda- mus lies to such a court to restore an attorney who- had been removed from his office. TTOPKINS, at the last term, obtained a rule 11 on the judges and assistant justices of the Court of Common Pleas of the County of Del- aware, to show cause why a mandamus should not issue, commanding them to restore Philip Gephard to the office of an attorney of that court, from which he had been removed by them. The judges and assistant justices at this term showed for cause certain charges of mal- conduct against Mr. Gephard in his official situation, and the proofs by which *they [* 1 82 were supported. These proofs they had deemed sufficient, and thereupon had pro- ceeded to remove him from his office. Two questions were made: 1. Whether the charges exhibited against Mr. Gephard were supported by the proofs. 2. Whether the Court of Common Pleas possessed the exchisive power of determining on the conduct of its own officers, or whether this court could interfere. On the first point many affidavits were read, the contents of which, relating to matters of fact only, it will be unnecessary to state. Per Curiam. We are of opinion that the affidavits do not sufficiently support the charge of malconduct, but are rather to be considered as evidence of mistake than of intentional error. At least, the ground of removal was- too slight for a punishment so severe. JOHNSON'S CASES, 1. 1799 SILVA v. Low. 182 As to the second point. Before the revolu- tion, the power of appointing attorneys was exercised by the governor of the colony, whether justifiably or not it is immaterial to inquire. His power was recognized by the courts, and the attorneys admitted to practice. By the constitution of this State, the power of appointing attorneys was transferred to the respective courts. The constitution did, however, no more than to transfer or vest in the courts the power of appointment. The expression that they shall be governed by the rules and orders of the court, gives no addi- tional authority over them, and they would have been equally subject to those rules and orders if the constitution had been silent in this respect. In like manner, the power of this court is not affected by the terms used in the constitution. The constitutional objection being removed, the general question remains, whether this court possesses the power of superintending and correcting all the judgments and proceed- ings of the courts of common pleas in the re- spective counties. If so, it must have the power of correcting any abuse or injustice 183*] towards their officers. Most *of the reasoning on the subject of the powers of the courts of general sessions of the peace in the case already decided from Chenango, will apply to the courts of common pleas, and equally shows that they are properly inferior courts, and subject to the controul of this court. The origin of the courts of common pleas and the history of their powers show that they come within the same description. They were originally constituted by the style and title of "inferior courts," and were in all re- spects considered as such. The amount of their jurisdiction was limited to 20. In local extent, their jurisdiction was limited, as they could try no action arising out of the county. It is true that these powers have since been enlarged, but this has been done by express statutes, which do not alter the essential char- acter of those courts : all their proceedings are still equally liable to be revised and corrected by this court. A writ of habeas carpus to re- move actions before them, a writ of error, and of certiorari in some cases, a mandamus, pro- hibition and attachment may still issue from this court, which they are bound to obey. In short, they still retain almost every character- istic of an inferior court. On the argument they were compared to the common pleas in England, but the resemblance is in name only, and were they considered in the same light, all the difficulties and incon- sistencies with regard to our jurisprudence, and the administration of justice which were mentioned in the case of the sessions, would equally apply to them. In the present case, a striking instance of such inconsistency would appear. By the act of the Legislature of this State, if a court of common pleas remove an attorney from office, he cannot be admitted to practice here, although he should also be an attorney of this court. If, therefore, we could not revise the proceedings of the courts of common pleas in this respect, they might dis- qualify any attorney of this court, and how- ever unjust it might be, it would not be in our JOHNSON'S CASES, 1. power to afford relief. *This would [*184 indirectly give them the power of superin- tending and controlling the officers of this court. We are therefore of opinion that we have the power to interfere, and considering it a proper case for the interference of this court, it is ordered that a mandamus do issue. Rule made at/solute. l Questioned 18 Wend., 95. Cited in 17 Wend., 484 ; 22 N. Y., 90 ; 20 How. Pr., 12; 11 Abb., 332; 7 Wall., 379. SILVA v. LOW. 1. Marine Insurant*, Warranty Seaworthi- ness Competent Crew. 2. Witness Credi- bility Deliberate Contradiction. 3. Errors and Appeals Verdict Weight of Evidence. 4. Shipping Deviation. Goods were insured on board a vessel, "on a voy- age from Wilmington, in North Carolina, to Fal- mouth, and at and from thence to a port of dis- charge in Great Britain." The vessel sailed from Wilmington, with a crew consisting of ten persons, and with the avowed intention of touching at the Hook, off the port of New York, to procure seamen; she foundered, however, in a gale of wind, and be- fore she arrived at the dividing point between a direct course to Falmouth, and the course to New York. It was held that a vessel must not only be seaworthy, but be duly equipped and manned with a competent crew, engaged for the voyage insured; and that in case the intention to stop at New York for seamen was sufficient evidence, either that the crew was not competent, or that they were not en- gaged for the voyage insured. Whether the voyage on which the vessel actually sailed in this case, was distinct or different from the voyage insured, qitwre. A witness who deliberately contradicts himself with respect to any fact, ought not to be credited, unless supported by other proof, to establish that fact in any way whatever. It is not a sufficient reason for setting aside a verdict, that the weight of evidence, in the opinion of the court, was on the opposite side. Cases cited- 7 Term R., 160. 3. Doug., 52 ; Cowp., 601. Marshall, 407; 2 Str., 1249; Cowp., 601; Doug., 344 ; Doug., 16 ; 2 Term, 30 ; 2 H. Black., 343 ; 7 Term R., 162. THIS was an action on a policy of insurance on goods, on board the vessel called the Hull Packet, on a voyage from Wilmington, in North Carolina, to Falmouth, and at and 1. In the case of The People, ex rel. Strong, v. The Justices of the Common Pleas of Otsego, the same questions arose, and were decided in the same manner. NOTE. Manna Insurance, seaworlhiness,warranty of, implied in contracts of insurance. Barnewall v. Church, 1 Caine, 217; Talcot v. Com. Ins. Co., 2 Johns., 124 ; Draper v. Com. Ins. Co., 21 N. Y., 378; Patrick v. Hallett, 3 Johns. Cas., 76; Hazzard v. New England Marine Ins. Co., 8 Pot., 581 ; Starbuck v. New England Marine Ins. Co., 19 Pick., 198. Seaworthiness includes competent crew of sufficient numbers (Dow v. Smith,! Caine, 32; Treadwell v. Union Ins. Co., 6 Cow., 270; U. S. v. Hunt, 2 Story C. C., 120; The Gentleman, Olc. Adm.,110), properly officered. Draper v. Com. Ins. Co., above cited. See,nowever, as to some particular questions, Tread- well v. Union Ins. Co., above cited ; Keeler v. Firemen's Ins. Co., 3 Hill, 250, and Copeland v. New England Ins. Co., 2 Mete. (Mass.), 432. As to time policies, see, further, Jones v. Ins. Co., 2 Wall.. Jr., C. C., 278; Am. Ins. Co. v. Ogden, 20 Wend., 287 ; Hoxie v. Pacific Ins. Co., 7 Allen, 211. As to Imrden of proof, see, in addition to above cases, Tidmarsh v. Wash. F. & M. Ins. Co., 4 Mason, 439; Paddock v. Franklin Ins. Co., 11 Pick., 227; Capen v. Wash. Ins. Co., 12 Cush., 517. 291 184 SUPREME COURT, STATE OF Naw YORK. 1799 from thei.oe to a port of discharge in Great Britain. The sum insured was $5,500, and the U>ss was averred to have happened by the perils of the sea. The cause was tried before Mr. Justice Kent, at the sittings in August, 1798, in the city of New York. The policy and the interest of the plaintiff were admitted; and it was proved on the part of the plaintiff, by a deposition of the mate of the ship, that she foundered at sea in a hard gale of wind, the 7th of September, 1797, on her direct voyage to England; that the vessel was well manned and found, and had ten hands on board; that he saw one of the mari- ners sign the shipping articles, which were to go to Falmouth, and that the orders were to 185*] keep *a due east course; that the crew who signed the articles left the vessel at Wil- mington, and that the captain and seven of the men on board were drowned. On the part of the defendant, a certificate of the officer of the customs at Wilmington was produced, dated the 3d day of January, 1798. stating that the vessel cleared for New York, and also a protest made by the mate of the vessel, and " one or more seamen" at Charles- ton, on the 26th of September, 1797, in which the}' swore that the vessel sailed from Wil- mington, on the 6th of the same month, bound for New York, and that she foundered the next day, and that they escaped on the wreck. The defendant also produced in evidence a letter from the agent of the plaintiff to the de- fendant, dated the 28th of August, 1797, stat- ing that the captain said he feared he should be obliged to touch at the Hook for seamen, and another from the same to the same, dated the day following, stating the captain's reso- lution to touch at New York for seamen, and another from the same to the same, stating that the captain said that he had cleared for New York. It was further proved that the vessel was about 13 years old, and was built in Connecticut. No objection was made to any part of this testimony. The plaintiff then produced his instructions to the captain, dated the 14th of July, 1797, directing him to sail from North Carolina to Falmouth, and also the invoices and bills of lading, signed by the captain, and dated the 20th of August following, stating that he was bound for Falmouth; and also a letter from a Mr. Ross, the consignee of the cargo at Fal- mouth, in which he acknowledged his advice from North Carolina of the destination to Fal- mouth. It was further proved, on the part of the plaintiff, that the ten hands on board were equal in number to the usual complement for the vessel; that the course from Cape Fear, in North Carolina, to England, was usually east, until they passed the gulph stream, and the 186*] course to New York northeast, *after passing Cape Hatteras; that no vessel passed the gulf stream in coming to New York; that the loss happended in lat. 33 51 long. 74, and that if the wind had been favorable, a more northerly course would have been steered for London; and it was also proved that the vessel had been well repaired for the voyage. The judge submitted two questions to the jury. 1. Whether the vessel was sea worth}'; 25)2 and he expressed his opinion that the weight of evidence was in favor of her seaworthiness. 2. Whether the voyage on which she sailed was different from the one described in the policy, with directions that if the vessel was unsea- worthy, or the voyage was different from that described in the policy, they should find for the defendant; otherwise, their verdict should be for the plaintiff. The jury found for the plaintiff, with dam- ages as for a total loss. In January Term last, a motion was made for a new trial, on the general ground that the verdict was against evidence. The motion was argued by Mr. B. Living- ston and Mr. Burr for the plaintiff, and by Mr. Riggs and Mr. Lush for the defendant. In April Term, the court ordered a further argument on the following questions, which were argued in July Term, by Mr. B. Living- ston and Mr. Burr for the plaintiff, and by Mr. Troup, Mr. Harrison, and Mr. Hamilton for the defendant. 1. Admitting the voyage on which the vessel sailed was ultimately for Falmouth, but circuitous by the way of New York, was it for that reason to be considered a distinct voyage from the one described in the policy? 2. If not, and the only object in going to New York was to procure seamen for the re- mainder of the voyage to Falmouth, and the vessel was lost before she came to the point of departure from a direct voyage to Falmouth, would these circumstances affect the plaintiff's right to recover? *The court now delivered their opin- [*187 ions as follows: RADCLIFF, J. By the case, it appears that E. Seits, the mate of the vessel, was the only witness whose testimony, as delivered at the trial, went to prove that the loss happened on a direct voyage from Wilmington to Falmouth. In support of the opinion which I shall give, it will be material to show that no other evi- dence sufficient to establish the fact, that the loss happened on a direct voyage to Falmouth, was offered by the plaintiff, and that the dep- osition of their witness, contrasted with the other evidence in the cause, ought not to gov- ern its decision. The other evidence to prove the loss, and the circumstances attending it, is in these words: " That the course from Cape Fear, in North Carolina, to England, was usually east till they passed the gulph stream, and to New York was northeast after passing Cape Hat- teras; that no vessel passed the gulph stream in coming to New York; that the loss hap- pened in lat. 33 51, and long. 74, and if the wind had been favourable, a more northerly course would have been steered for London." It does not appear from any part of the testimony that the vessel had entered or passed the gulf stream, nor at what particular place the loss happened. The latitude and longi- tude, as given, can furnish no satisfactory fuide. The best calculations of longitude are nown to be uncertain, and were they capable of certainty, it cannot be supposed, under the circumstances of this loss, occasioned by a tempest, that an accurate calculation could have been made. The vessel was the sport of JOHNSON'S CASES, 1. 1799 SILVA v. Low. 187 the winds, the captain and seven out of ten of the crew were drowned, and every consid- eration but that of personal safety must have been lost in the common danger. From the course, under such circumstances, or the place to which the vessel was driven, if these were known, it cannot be ascertained whether she sailed from Wilmington directly to Falmouth, or for New York. The proof of her actually sailing on a direct voyage to. Falmouth (for I do not now speak 188*] of the previous intent), *is therefore confined to the mate. But on this point his testimony, at different periods, is in direct hostility to itself. In his deposition read by the plaintiff, he swears that the vessel was on a direct voyage to Falmouth. In the protest produced on the part of the defendant, he swears that she sailed from Wilmington, bound for New York.- The meaning or force of terms, so opposite and contradictory, cannot be mistaken. According to common acceptance and their obvious import, I think this witness stands self-convicted of a falsehood, contained either in his deposition or protest, and I adopt the principle that a witness who deliberately contradicts himself, with respect to any fact, ought not to be credited, unless supported by other proof to establish that fact, in any way whatever. Testimony derived from so impure a source, and standing alone, cannot be ad- 1 matted, If we could suppose, as has been suggested, j that this witness was not aware of the force of the terms used in his deposition, and that he did not intend to testify to a direct but a circuitous voyage to Falmouth, by the way of New York, his testimony might be reconciled. But rejecting this hypothesis, his deposition that the vessel was on her direct voyage to Eu- gland,is not only contradicted by himself , but by 'one or more seamen," who in the protest unite with him in swearing that she sailed from Wilmington, bound for New York. These seamen stand unimpeached, and are strongly supported by the presumption arising from the three letters written by the plaintiff's agent to the defendant, shortly before the vessel sailed, which successively state, the first that the captain said he feared he should be obliged to touch at the Hook for seamen; the second, that the captain had resolved to touch at New York for seamen, and the third, that the captain said he had cleared for New York. In opposition to this, the plaintiff produced his instructions to the captain, directing him to Falmouth, the bills of lading signed by him, stating him bound for Falmouth, 180*] *and a letter from the consignee at Fal- rnouth, acknowledging advice of the destina- tion to that place. These documents show the original intent of a voyage to Falmouth, of which I have no doubt, but they do not show the performance of that intent, nor that the voyage was actually undertaken for Falmouth. They relate to a period anterior to the com- mencement of the voyage, and, therefore, can- not impeach the positive testimony of the sea- men, as to the subsequent destination. Nor are they at all inconsistent with the letters written by the plaintiff's agent, the first of which was nearly two months subsequent in \ date to the instructions, and eight days subse- ! JOHNSON'S CASES, 1. quent to the bills of lading. The captain, be- tween those dates, might from necessity, or for sufficient reasons, have changed his reso- lution, and sailed, as he said he had cleared, for New York. From the whole of this evidence, therefore (excluding that of the mate), I think it de- cisively appears that the vessel actually sailed from Wilmington for New York, and that there was no testimony sufficient to warrant a verdict on the supposition that she sailed immediately for Falmouth. At least the evi- dence, if there be any to this effect that ought to be received, is so dubious and suspicious, that in a case of so much value, I think it ought to be reconsidered, and the fact more- fully ascertained. The jury may have been incautiously governed by the deposition of the mate, without adverting to its inconsistency, and without giving effect to the other proofs in the cause. From this examination of the evidence, I shall assume the fact to be, that the vessel sailed from Wilmington for New York, but no doubt with an intent subsequently to pro- ceed to Falmouth. With a view to the second question stated by the court (which I shall first dispose of), it becomes, then, important to consider for what purpose she sailed for New York. The avowed and only probable purpose was for seamen. The captain declared in two of his letters *that this was the object. It is, [*1OO therefore, necessarily to be inferred, that he had not a sufficient number of seamen engaged for the voyage to Falmouth, or that they had de- serted, or were not qualified for such a voy- age. In'either case, the policy was discharged ; for every contract of insurance implies a war- ranty not only that the vessel is seaworthy, but that she shall be duly equipped, and manned with a sufficient number of seamen of com- petent skill and ability to perform the voyage insured. This point does not appear to have been attended to at the trial, nor submitted to the jury, and on this ground alone I think the present motion might be disposed of, and a new trial awarded. But the more important-question, and which, probably, is necessary to be decided, in order to a final determination of the cause, is, whether the voyage to Falmouth, by the way of New York, ought to be considered as a distinct voyage from the one described in the policy. If in determining this question we are free from the control of authority, it becomes in- teresting to establish a just and rational rule, consistent with itself, and which may not lead to future embarrassment. If authority alone is to govern, and some of the late decisions in England are deemed to apply and to prescribe the rule, there can be no use in further discus- sion. We must then pursue the beaten path, however crooked it may be. I entertain a high respect for the decisions of the English courts, but I do not feel myself, in this instance, shackeled by their authority. All the decisions in England which are supposed to touch the question, have been made subsequent to our revolution, except the two cases briefly report- ed in Strange. Besides, this being a question of commercial concern, the determination of which can have no retrospective influence, nor 298 190 SUPREME COURT, STATE OF NEW YORK. 1799 affect pre-existing rights, I consider myself less restrained by the authority of existing cases. Should we implicitly follow precedents, on occasions like the present, we must hope for little improvement in our commercial code. 191*] A. single decision, *though founded on mistake, would become of binding force, and by repetition, error might be continued, or heaped on error, until the common sense of mankind, and the necessity of the case, oblige us to return to first principles, and abandon precedents. These considerations, I think, are sufficient to authorize a freedom of opinion. In the first place, to consider the question independent of authority. The insurance was from Wilmington to Fal- mouth. The vessel, as I conceive the evidence to be, sailed from Wilmington, bound for New York, in order to procure seamen for the voy- age to Falmouth. She was lost before she came to the point of departure for New York. It has been argued that there was only an in- tention to deviate, which not being carried into effect, the insurers remain liable. I admit that a mere intention to deviate will not vitiate a policy, but I cannot perceive how the just sense of this rule can apply to the present case. Deviation is a relative term. To constitute an actual deviation, the real voyage insured must have commenced, and there must be a subse- quent departure from that voyage. There can be no deviation from what does not exist. Did the voyage described in this policy, or any part of it, ever exist ? The voyage insured was from Wilmington direct to Falmouth. This direct voyage was never undertaken; it never com- menced; it had no existence; and of necessity there could be no deviation from it. If the course in this instance, from Wilmington to New York, had varied from the very port or wharf from which the vessel sailed, could she with any propriety be said to have commenced her voyage to Falmouth, or to have deviated from it ? There could, then, clearly have been no inception of the voyage to Falmouth, and of course no deviation. If so, can the acci- dental circumstance of the iter being the same for a short distance, alter this case in princi- ple, or essentially change the character of the voyage? I think not. It was still a separate and equally distinct voyage. If the voyage, 192*] then, *was distinct, and there could be no deviation from it, there also could be no in- tention to deviate. An intention to deviate from a voyage on which there was no intention to sail, is a contradiction in terms. The rule, therefore, that a mere intention to deviate shall not vitiate a policy, can have no application to the case. Wherever that rule applies, whether the intention to deviate be conceived before or after the commencement of the voyage, the real voyage insured has al- ways been entered upon, and at least partially performed. In the present case it was not performed; the voyage had no inception; it did not exist. The risk, therefore, never com- menced, and the policy never attached. "This reasoning to me is satisfactory, and there is no authority of decisive force and ap- plication to the question, to induce me to adopt a different opinion. The first case which has been considered as maintaining a contrary po- sition, is that of Carter v. The Royal Exthange 294 Insurance Company (Marshall, 407; 2 Str., 1249), and seems to have been the foundation of some of the late determinations on this sub- ject. "The insurance was from Honduras to London, and a consignment to Amsterdam; a loss happened before the vessel came to the di- viding point of the two voyages, which the in- surer was held to pay for." This is the whole report of the case, and from the naked facts we are left in a great de- gree to conjecture the ground of its decision. It is implied that the vessel had actually sailed on the voyage insured. There was a consign- ment to Amsterdam, but whether of the whole cargo, whether the rest of the ship's papers were for Amsterdam or London; whether there was any other evidence of an intention to deviate; whether the captain 1 had determined first to sail for the one place or for the other, does not certainly appear. Yet this seems till lately to have been cited as the principal author- ity on the subject, in the English courts. It was determined at an early period, and I think is too loose and uncertain to control our decision. *The next case is that of Foster v. [*193 Wilmer (2 Str., 1249; 13 Geo. II., 1746), which is connected in the same report with the last. "The insurance in that case was from Caro- lina to Lisbon, and at and from thence to Bristol. It appeared that the captain had taken in salt, which he was to deliver at Fal- mouth before he went to Bristol, but the ship was taken in the direct road to both places, and before she came to the point where she would turn off to Falmouth. And it was held that the insurer was liable, for it is but an in- tention to deviate, and that was held not suf- ficient to discharge the underwriter." In this case the real voyage had actually commenced and had been partly performed from Carolina to Lisbon, and the captain in- tended to deviate on his way to Bristol. He must have taken in the salt at Lisbon, and there,, probably, first formed his intention to deviate. In the case before us, the voyage insured had not commenced, and there could be no deviation, or intention to deviate. The next case is that of Bond v. Nutt (Cowp. , 601; Doug., 344; S. C., 1777), in which the argument of the court, in my opinion, sup- ports the doctrine I have advanced. That was an insurance at and from Jamaica to London. The ship being completely laden for her voy- age to London, sailed from St. Ann's, in Jamaica, to Bluefields, for a convoy which lay ready there. The greater part of the way was a different course from that to England. * The court held that the going to Bluefields was neither a deviation nor a distinct voyage, but a proper precaution in a state of war, fdr the interest of all concerned, and was therefore to be considered as part of the voyage from St. Ann's to England. But they at the same time declared that if she had gone to Bluefields for any purpose independent of her voyage to England, as for water or letters, or to wait in hopes of convoy, none being ready, that would have given it the condition of one voyage to Bluefields, and another from thence to En- gland. This reasoning is decidedly in favor of the defendant in the case before us, and shows that the voyage from Wilmington *to [*194 JOHNSON'S CASES, 1. 1799 SII/VA v. Low. 194 New York, for the purpose of obtaining sea- men, cannot be considered as part of the voy- age to Falmouth. The object of procuring seamen at New York was as independent of the voyage to Falmouth as the going for water, or letters, or to wait in hopes of convoy, would have been at Bluefields, and gives it as much the character of a distinct voyage. The case of Woolbndge v. Boydell (Doug. , 16, 1778), as far as it bears upon the question, I also consider in favor of the defendant. There the insurance was from Maryland to Cadiz. The vessel was captured in the Chesa- peake, on her way to Europe, but it appeared that she never intended to go to Cadiz. On the argument the two cases from Strange, above mentioned, were cited, and it was con- tended that there was a mere intention to de- viate. But the court unanimously determined in favor of the underwriters, on the ground that although the vessel was taken before she arrived at the dividing point, "it was not the voyage intended, and not what they meant to insure." The principle of the decision thus stated, instead of denying, rather supports the posi- tion I maintain. It is true, Lord Mansfield says, that in all the cases where a mere inten- tion to deviate will not vitiate the policy, the terminus a quo and ad quern were certain and the same. There the terminus ad quern was not the same. The vessel had no intention to go to Cadiz. But it does not follow that where the termini are the same, the voyage is always the same, and cannot be distinct. In the case of Way v. Modigliani (2 Term, 30, 1787), the termini were the same, and yet an intermedi- ate voyage to the Banks of Newfoundland was held to be distinct. The whole extent of the rule, as stated by his lordship, and which .appears to have led to some difficulty on the subject, is confined to this, that where the intention to deviate will not vitiate, the termini must be the same. The criterion thus far was proper, and, ap- plied to the case before him, was sufficient to decide it, but it does not serve to designate every case of a separate or distinct voyage, 195*] *and I apprehend the correct ground of the decision still was, as is expressed in the case, that "it was not the voyage intended, and not what the underwriters meant to in- sure." In the case of Way v. Modigliani, it will be sufficient further to state that the same general position was confirmed. A part of the iter was the same, but the court, nevertheless, de- termined that the voyage was distinct, and that the policy never attached ; and Mr. Justice Buller observed, in order that the policy may attach, "the vessel must have sailed on the voyage insured, and not on any other." On the part of the plaintiff, the case of Kewley v. Ryan (2 H. Bl., 343, 1794) has been principally relied upon. In that case the termini of the voyage seem to have been the ground of decision. It was an insurance from Grenada to Liverpool. The ship sailed from Grenada, bound for Liverpool, but with a de- sign formed before the commencement of the voyage to touch at Cork, and she was lost before she came to the dividing point. The court, in delivering their opinion, said, that JOHNSON'S CASES, 1 where the termini were really the same, it was to be considered as the same voyage, and a design to deviate not effected, would not vitiate the policy. If the voyage insured in the present case had really commenced when the vessel left Wilmington, and the purpose for which she sailed to New York did not give it the char- acter of a different voyage, I admit that this would be an authority on the side of the plaintiff. But if I am right in considering the voyage as not being commenced, then the terminus a quo did not exist ; then the vessel can never be considered as having entered on the voyage described in the policy. It is ob- servable, that in the case just mentioned, the counsel for the defendant stated another which had been tried before Lord Kenyon at Guild- hall, in Hilary Term, 1794, in which his lord- ship nonsuited the plaintiff in an action on a policy on the same ship, being of opinion that the case fell within the decisions of Woold- ridge v. Boydell, and Way v. Modigliani, above cited ; and that there was no inception of the voyage. Nothing more is to be found of the, case, nor of the opinion of Lord *Ken- [*1O6 yon, except what appears in Middlewood v. Blakes (7 Term, 162, 1797), in which all the authorities on the subject were adduced, and admitted to be law; but the cause was decided on a ground wholly different, and his lordship intimated, that were this question res integra, he might be of a different opinion. If this view of the cases on the subject be correct, I do not consider myself as opposing the whole current of the English decisions. Some of them, I think I have shown, plainly support the doctrine I maintain, and if others oppose it, they are of a recent date, and seem already to be regretted in their courts. With us it is fairly vexata questio, and the reason and principle of the case carry to my mind the fullest conviction that the voyage from Wil- mington to New York, notwithstanding the final destination to Falmouth, ought to be deemed a distinct voyage from the one de- scribed in the policy. Indeed, it appears to me repugnant to common sense, and scarcely possible to suppose that either party ever im- agined the voyage to Falmouth could be con- strued to embrace the one to New York. On this ground I am also of opinion that a new trial ought to be granted. KENT, J. The two material points are, 1st. Was the voyage insured altered, and was a new voyage to New York pursuing at the time of the loss? 2d. Was the vessel, when she sailed from Wilmington, competently equipped for the voyage to Falmouth? Upon the first point it appears to me evident from the case, that the vessel, when she sailed, took her departure for Falmouth, as the ulti- mate place of destination, and that the port of New York was intended only to be touched at in the course, of the voyage. The voyage originally in contempla- tion was for Falmouth, and the subsequent determination of the captain to touch at New York, did not arise from any new commercial speculation. It was not to take in new or ad- ditional cargo at New York, nor to sell, ex- 196 SUPREME COURT, STATE OF NEW YORK. 1799 change, or divert the destination of the cargo 197*] already *received and consigned to Falmouth. It was simply to touch at the Hook or at New York for seamen. This was the only motive avowed, and the original in- tention of going to Falmouth with the same cargo, by the same party, and under the same consignment, appears not to have been altered or abandoned. This resolution of the captain to touch at New York for the purpose declared, was not the substitution of a new voyage. It was the substitution only of an indirect instead of the direct iter or route to the ultimate place of destination. The courts have gone a considerable length towards giving us a precise and definite crite- rion by which we can test the identity of a voyage. Where the terminu* a quo, or com- mencement of the intended voyage, and the ter- minus ad quern, or conclusion of it, be tne same with the termini of the voyage described in the policy, the voyage intended, and the voyage insured are the same, notwithstanding any proposed deviation, or the touching at any intermediate port out of the usual and direct course of the voyage. The cases of Carter v. The Royal Exchange Insurance Company (Str., 1349), of Tliettuson v. Ferguson (Doug. , 346), Of Kewley v. Ryan (2 H. Black., 344), and of Mid- dleicood v. Blake* (7 Term, 162), have fully es- tablished these principles, and have put the the question at rest in their courts. It is not unusual, before the commencement of a voyage, to contemplate deviations from the direct course for the sake of convenience, or for the attainment of objects incidental to the voyage. But to guard against the conse- quences of an actual deviation, it is customary to mention in the policy the places out of the course at which it is intended that the vessel shall have liberty to touch. In the present case there was no such liberty inserted in the policy, and had an actual deviation without necessity taken place, from the usual and di- rect course from Wilmington to Falmouth, the defendant would have been discharged. No such actual deviation is pretended here. 198*] *The vessel foundered in a gale of wind the day after she left port; and if the testimony upon this point is to be credited, she was in the direct course to England. Considering, however, the distress and sudden loss, I in- cline to think that no permanent course, either to the one port or to the other, had been taken. I am accordingly of opinion with the ver- dict upon the first point, because there was no alteration of the voyage insured, and the de- termination of the captain to touch at New York was only an intended deviation. The second point in the case is, whether the vessel was competently equipped for the voy- age insured. This competency must consist not only in a sound vessel, but in everything requisite for the voyage, in a master of due skill, and in a sufficient crew. (7 Term, 160.) The intention of going to New York for sea- men is proof in the present case that the ves- sel had not a sufficient crew. And if we should give credit to the testimony of Seitz, the mate (which is, however, so contradictory as to ren- der it of little weight), and admit that the usual complement of seamen was on board, we 296 must take it for granted that they were engaged only for New York, and that the captain could not, in that case, without a breach of faith, carry the vessel directly to England. He was under a moral inability to go to Falmouth for want of seamen, and this was equivalent, in force and effect, to a physical incompetency to perform the vovage. (Middleton v. Blakets, 1 Term, 160.) On this second point, therefore, I am or opinion that the verdict is against the weight of evidence; and when we take into considera- tion the amount of the sum in controversy, and that this was not made a direct point upon the trial, I think that there ought to be a new trial. BENSON, J., was of opinion that a new trial ought to be granted on both points, in which he concurred with Mr. Justice Radcliff. *LEWIS, J. In the exercise of the [*199 power of granting new trials, courts of justice, in my opinion, ought studiously to avoid the least infringement of the legal and constitu- tional rights of juries. To examine facts, and to determine the preponderance of testimony, belongs exclusively to them, and it is not a sufficient reason for setting aside a verdict, that the weight of evidence, in the opinion of the court, was on the opposite side. There is- a clear distinction in the books between ver- dicts against evidence, and such as are against the weight of evidence only, where there has been a contrariety of testimony. Not one in- stance, I believe, is to be met with, where the English courts have granted a new trial in a case of the latter description, unless where some additional strong ingredient has entered into the consideration of it, such as suspected fraud, perjury, or fqrgery, which there was good ground to believe might upon a second trial be brought to light; or where the verdict has been in consequence of the misconception and misdirection of a judge, as was the case in Bond v. Nutt(Doug., 352; Cowp., 601). If the case under consideration shall, on examination, be found to fall within the above rule, uncon- nected with any such additional circumstances, and we are to be governed by authority, no- new trial ought to be granted. To ascertain the fact, it will be necessary to- examine the evidence as stated in the case. That on the part of the plaintiff was: 1. The deposition of the mate "that the vessel found- ered at sea in a gale of wind on the 7th Sep- tember, 1797, on her direct voyage to England; that she was well manned and found, having ten hands on board; and the orders were to- keep a due east course; that the captain and seven hands were drowned." 2. The captain's instructions from his owner, dated 14th July, 1797, directing him to go from North Carolina to Falmouth, in England. 3. Invoices and bills of lading, dated 26th August, 1797, signed by the captain, for Fal- mouth, in England. *4. Letter of John Ross, consignee [*2OO of the cargo at Falmouth, acknowledging the receipt of advice from North Carolina, of the consignment to him. 5. That the ship's complement was ten hands. 6. That the course from Cape Fear, in North JOHNSON'S CASES, 1.' 1799 SILVA v. Low. 200 Carolina, to England, was nearly east till they passed the gulf stream, and to New York, northeast, after passing Cape Hatteras. 7. That the loss happened in lat. 33, 51, long. 74, and that had the wind been favora- ble, a more northerly course would have been steered for England ; that no vessel crosses the gulf stream coming to New York, and that the vessel was well repaired. The testimony on the part of the defendant was: 1. A certificate from the officer of the customs at Wilmington, dated 3d January, 1798, that the vessel cleared for the port of New York. 2. A protest of the mate and one or more seamen, made at Charleston, 28th September, 1797, stating the vessel to have sailed from Wilmington the 6th of the same month, bound for New York, and that she foundered the next day. 3. A letter to the plaintiff of the 28th August, 1797, from his agent, stating that he feared lest he should have to touch at the Hook for seamen. 4. A letter from the same to the same, dated the day following, stating the captain's resolu- tion to touch at New York for seamen. 5. A letter from the same to the defendant, dated 3d January, 1798, stating that the cap- tain said he had cleared for New York. 6. That the vessel was built 13 years ago. On this state of the evidence, two questions of fact arose, which the judge reports were given in charge to the jury. 1. Was the vessel seaworthy? 2. Was she on a different voyage, when lost, from that stated in the policy? And the judge directed the jury, that if they 20 1*] were of *opinion, either that she was not seaworthy, or was not sailing on the voy- age insured, when lost, their verdict must be for the defendant. The seaworthiness of the vessel has not been contested. The second question alone fur- nishes the ground for the present application. On the first argument it was contended in support of the motion, that the plaintiff ought to have shown with certainty that the vessel sailed on the voyage insured, and if so, that she made no material deviation. On the opposite side it was insisted that, ad- mitting the captain's intention of going to New York, it was only for an incidental ac- commodation, beneficial to all parties; that at the least, Falmouth was the place of her ulti- mate destination, and having been lost previous to her arriving at the dividing point, it could amount to an intended deviation only, which did not vitiate the policy. On the second argument, a new position was assumed by the defendant's counsel, that in every contract of insurance, there is an im- plied engagement on the part of the assured, that his vessel is in every respect competent to the voyage; that from the clearance, the protest, and the captain's declaration of his in- tention to go to New York for seamen, it was evident such was not her situation, and that, therefore, there was a deceit or concealment of a fact enhancing the risk, and a manifest breach of contract on the part of the assured; that there was a moral necessity for her going to New York, and that, therefore, it was a fair JOHNSON'S CASES, 1. inference that she was bound on a voyage different from one insured at the time of the loss. To this it was replied that had the vessel gone to New York, and then to Falmouth, it would have been at most a deviation'; that being lost before she came to the dividing point, it could be only an intended deviation, and the case of Foster v. Wiimer was relied on; that there was, however, no evidence of an actual intention to go to *New [*2O2 York. The ostensible motive was to procure seamen. This was removed by the captain's having been able to procure the necessary complement of men ; and that the jury must have been of that opinion. From this view of the case, it appears that there was evidence on both sides; that it rested altogether on matters of fact, which were ex- plicitly submitted to the jury ,who have de- cided on them, and their decision, under the circumstances of the case (there having been no misdirection of the judge), by the estab- lished rule of law, ought to be final. , But admitting the discretion of the court to extend to a case circumstanced like the present, the question then results, is there sufficient evidence to warrant such a verdict? There is great force in the observation, " that as the only motive for the captain's intention of going to New York was for seamen, and as he actually had his complement of men when he sailed, the inducement ceased, and it is a fair presumption that the intention was laid aside. It is worthy of remark, that nine days intervened from the 28th August to the 6th September, between the captain's declaration of his intention, and of his actual sailing. When the clearance was taken out we do not know; the jury, who probably saw the docu- ments, must have been better informed on this point than we are. It is probable, however, that it was taken out on, or, perhaps, before the 28th August, in which case he would have had nine days at least to have completed his complement of men. The mate has declared that he had such complement; that seven of them were drowned, and the jury have believed him. But it is said they ought not to have believed him, on account of the sup- posed contradiction between his affidavit and protest. They appear, however, to have found no great difficulty on this subject, nor do I perceive any. It is a rule of law, that appar- ent contradictions in testimony are to be reconciled if possible, for perjury is not to be persumed. If we attend to the objects of the two documents, the task of reconciling will be *easy. That of the protest is [*2O3 merely in exculpation of the master and mariners, by showing the time, place, and manner of the loss. It is like protests in many other cases, to exclude unfavorable conclusions. The voyage to this effect being immaterial, the protest is made correspondent to the clearance; but when the real destination of the vessel becomes the object of inquiry, and the mate is examined as a witness to that point, he declares according to the truth of the fact; that although she cleared for New York, she was in reality bound for Falmouth, and on her direct voyage thither. It is diffi- cult to believe a perjury, without showing an 297 303 SUPREME COUKT, STATE OF NEW YORK. 1799 inducement. Where is the inducement in the present instance? It does not appear that this man continued, after the loss of the vessel, in the employ of the plaintiff, and if we look for the means of dependence they will be found much greater in the hands of the body of mer- chants, composing the insurance company, than in those of a solitary individual. Besides, the plaintiff's conduct precludes the idea of subornation, for the most important docu- ments of the defendant, viz. : the letters of the plaintiff from his agent, must have been fur- nished by himself. Hence, it appears to me, there was sufficient ground for the jury to believe that the intention of going to New York was wholly abandoned. But admitting the mate intended to convey, .and that the jury actually conceived the idea that the vessel was on her direct voyage to England, though with the intention of touch- ing at New York, it was for them to decide whether she wassailing on the voyage insured or on a different voyage. What constitutes a distinct voyage is always a question of fact, resting on the particular circumstances of the case, and is of course for the decision of the jury, and so was the de- termination in Bond v. Nutt. To fix a crite- rion that shall determine, in all cases, between & contemplated deviation and a distinct voyage is difficult, if not impossible. This was at- tempted by one of the counsel on the 2O4*] *last argument, but there appeared to me much more of fancy and ingenuity in his physical and moral necessities, than of real solidity. His moral necessities fail when tested by the case of Foster v. Wilmer; and his physical, in every exemplification of them, amount to deviations exjusta causa, which are always excusable. Intended deviation finds no place under this distinction. In Foster v. Wilmer, the insurance was from Carolina to Lisbon, and at and from thence to Bristol. At Lisbon the captain took in salt for Falmouth; the ship was taken before she reached the dividing point, and it was held an intentional deviation only. So in the case of Carter v. TJie Royal Exchange Insurance Company, the insurance was from Honduras to London, and a consignment for Amsterdam, a loss happened as above, and the decision was the same. In both these cases, the deviation was in- tended previous to the ship's leaving port. The moral necessity of touching at the inter- mediate ports existed in each, yet the court were of opinion that it was the same voyage. If there is any general distinction, the only one which occurs to me is, where the vessel has an object in going to a different port dis- tinct from, and independent of the voyage in- sured. In the present instance, if she was going to New York, it was not for a purpose distinct from the voyage to England, it was for the purpose of procuring seamen for that voy- age. Falmouth was her place of ultimate destination, it was the terminus ad quern, and her going to New York could have been but a deviation. In Pond v. Nutt, the insurance was at and from Jamaica to London, warranted to sail on or before the first day of August. The vessel sailed from St. Ann's, in Jamaica, on the 26th day of July, for Bluefields, in the same island, 298 to join a convoy. She arrived there on the 28th, and was detained by an embargo till after the 1st August. One question was, did the policy ever attach, which depended on the fact whether her departure for London was her sailing from St. Ann's or from Bluefields. The other was, whether, if the voyage com- menced on her sailing *from St. Ann's, [*2OS her deviation wasexjuxta causa, and excusable, or such as vacated the policy. The court de- cided that the voyage commenced on the vessel's leaving St. Ann's, and of course that the policy attached; and the reason assigned is, that she left St. Ann's with her cargo, papers, master, &c., on board, and did not go to Bluefields for any purpose independent of the voyage. So in the present case, if there was really an intention of going to New York, it was not for a purpose independent of the voyage to Falmouth; but, on the contrary, it was for a purpose connected with that voyage; she also had her cargo on board ; all her docu- ments (the clearance excepted), invoices, bills of lading, and consignment were for Falmouth. This, then, was the place of her ultimate des- tination, and the intention of touching at New York was at most a contemplated deviation. Thus, in every view in which this question is susceptible of being placed, I think the ver- dict right, and that it ought to stand. But it is principally on the ground that it was a question exclusively for the jury, and that it was fully and properly submitted to them by the judge who tried the cause, that I found my opinion that the defendant ought to take nothing by his motion. LANSING, Ch. J., declared himself to be of the same opinion. New trial granted. See Post, 336. Cited in-83 Caine's, 277 ; 4 Johns.,449 ; 11 Johns.,261 ; 3 Rob., 476 ; 8 Daly, 393 ; Olcott, 115 ; 3 Wood & M., 447. NEILSON v. BLIGHT. 1. Trust Knowledge of Cestui que trust. 2. Debtor and Creditor Creditor First in Pos- session. Where an agent received goods upon condition to pay B. a certain sum out of the first proceeds there- of, which acceptance so made was afterwards ap- proved by the principal, the agent was held bound to pay B. the sum stipulated, notwithstanding 1 the goods had been previously assigned by the princi- pal to C., but without the knowledge of the agent. Where a trust is created for the benefit of a person, though without his knowledge at the time, he may affirm the trust and enforce its execution. Citations Pothier Oblig., n 73; 2 T. B., 63. THIS was an action of assumpsit for money had and received by the defendant to the use of the plaintiff. Plea non assumpsit. *The cause was tried at the last [*2OO March Circuit in the city of New York, before Mr. Justice Kent, when a verdict was taken for the plaintiff, subject to the opinion of the court, on the following case, with liberty for either party to turn the case into a special verdict. JOHNSON'S CASES, 1. 1799 NETLSON v. BLIGHT. 200 Dixon, Williams & Co., merchants, of Exe- ter, in England, purchased goods of the plaint- iff to a considerable amount, with orders to have them shipped from New York to Madei- ra; and they appointed one Green as their agent to receive the goods, and see them shipped. Green, in March, 1791, went from New York to Madeira, and soon after his arrival there, disposed of two cargoes, on account of Dixon, Williams & Co. , which were shipped by the plaintiff, and delivered to him (Green) as the agent of Dixon, Williams & Co. Dixon, Williams & Co., being largely in- debted to Barings, Short & Collyns, bankers in Exeter, on the 4th June, 1791, made an as- signment of all their wines, goods, wares and merchandizes in Madeira, and the proceeds thereof to C. Baring, towards payment of the debt due to Barings, Short & Collyns. In consequence of this assingment, C. Baring fitted out a vessel, called the Minerva, and appointed one William Raddon master, with orders to go to Madeira, and receive the wines so assigned, and carry them to Jamaica or to Philadelphia, for the account of C. Baring. Raddon, before he sailed from England, re- ceived a power of attorney from Dixon, Will- iams & Co. , to act for them according to cir- cumstances, as he should think fit. Raddon arrived at Madeira, received the wines from Green, and shipped them on board of the Minerva for Jamaica. Previous to the delivery of the wines to Raddon, it was agreed and stipulated between him and Green, that the wines should not be delivered by Raddon, unless upon condition that the sum of 1,500 sterling should be paid to the plaintiff out of the first proceeds of the wines, and thereupon Raddon executed a bond or instrument in writing, dated the llth July, 1791, by which, 2O 7*] after reciting *that he acted in behalf of Dixon, Williams & Co. of Exeter, being by them fully empowered and authorised by letter of attorney to do and act as to him might ap- pear necessary for their interest, and setting forth the particular inducement to execute the bond, he promised and covenanted, in behalf of Dixon, Williams & Co., not to deliver the wines under his care, until the payment of 1,500 sterling to the plaintiff or his order, was first satisfied or directed out of the first pro- ceeds of the wines, either at Jamaica or Phil- adelphia. Raddon proceeded with the wines to Jamai- ca, where he delivered them to the defendant, who was also the agent of Dixon, Williams & Co., to whom Raddon showed a copy of the instrument or paper he had executed. Sixty pipes of the wines were landed at Jamaica, and the residue sent to the brother of the defend- ant at Philadelphia, who, the defendant in a letter to the plaintiff, dated the 22d October, 1791, said was by the nature of the bond, to pay the plaintiff out of the first proceeds, if his whole demand was not satisfied in England; and the defendant in his letter, added, "that he had promised Raddon to hold the wines until accounts were received from England; that Raddon's conduct in signing the paper was approved, which accounts he had received a few days since." The defendant, afterwards, acknowledged the receipt of an order from Rad- JOHNSON'S CASES, 1. don, in favor of the plaintiff, but said that he had orders from Dixon, Williams & Co. to hold the wines subject to the order of Charles Baring, and that he understood that his brother in Philadelphia had settled the demands of the plaintiff, and that by the orders of Baring he had already sent him a great part of the pro- ceeds of the wines, and that he should pay them to no other person. The brother of the defendant at Philadelphia wrote to the plaint- iff on the 21st October, 1792, that he (the plaintiff) need not fear eventually getting his 1,500 sterling, and that he might depend that he, and his brother (the defendant), would detain so much that the plaintiff should be no loser. * 'Messrs. Harison, Hamilton, and.Z?7T,[*2O8 for the plaintiff. Messrs. Troup and B. Livingston for the defendant. RADCLIFF, J. Here was no lien on the part of the plaintiff; the delivery was complete to Green, the agent of Dixon, Williams & Co., and the property was thereby fully changed. A part of it was converted into wine, the sub- ject over which the lien contended for could only be exercised, and the residue was other- wise disposed of. Green, as the friend of the plaintiff, stipu- lated with Raddon, that he should not part with the wine, till the sum of 1,500 was first paid or secured to the plaintiff. For that pur- pose Raddon executed a bond or covenant to the plaintiff. Raddon was at this time the agent of Dixon, Williams & Co. , and the per- son to whom C. Baring also had entrusted the care of his interests. Whether Raddon had authority from his principals to make the stip- ulation above mentioned or not, is perhaps im- material. That was a question between him and them only, and could not affect the plaint- iff. By making the stipulation, and receiving the wines as he did, a trust was created for the benefit of the plaintiff, which the plaintiff had a right to affirm, and avail himself of. This trust was transferred to the defendant, who became equally responsible with Raddon, by receiving the wines on the same terms. That he so considered himself is evident, since he wrote to the plaintiff to that effect, and in- formed him that his brother, by the tenor of the bond, was to see him paid, and afterwards, that he always sxipposed his brother had paid him. The brother acted only by authority from the defendant, and as his sub-agent. The first of those letters imports a promise, and if it did not, there was an implied assumpsit in law, the fund being in the defendant's hands, and received by him, for the benefit of the plaintiff, as to 1,500 of the first proceeds. The plaintiff affirmed the trust, relied upon this source of payment, and was thereby lulled into security, and probably prevented from taking a different remedy. It appears, too, that the defendant received the approbation of Dixon, Williams & Co. for the *payment [*2O9 of this sum to the plaintiff, and I think he was completely authorised so to do. From the facts in the case, it may also be inferred, that the assignment to Baring was secret and fraud- ulent, but it is unnecessary to resort to that 29 209 SUPREME COURT, STATE OF NEW YORK. 1799 Around, for I adopt it as a maxim, that when a trust is created in any manner, even without the knowledge of the cextui que truM, he may affirm it and enforce the trust. I am therefore of opinion that the plaintiff is entitled to judgment. KENT, J. The leading facts on which I form my opinion are these: The plaintiff sold goods to Dixon, Williams & Co., to the amount of his present demand and more. Green & Raddon, as agents of Dixon, Williams & Co., agreed and took measures together, to secure the plaintiff his demand out of the proceeds of wine in their possession, as agents, and Rad- don, in pursuance of their mutual agreement, delivered the same to the defendant, who was also an agent of Dixou, Williams & Co., on condition that the plaintiff should be paid out of the first proceeds. The defendant, it is to be inferred from the case, accepted of the wines so delivered, upon the condition annexed, and the acceptance upon that condition, received the approbation of Dixon, Williams & Co. The defendant having thus received the wines upon that con- dition, and with the sanction of his principal, became bound in good faith to perform that condition, and to pay the plaintiff out of the proceeds. And what does he accordingly do? fie writes to the plaintiff and acknowledges the receipt of the wines, and that the condi- tion on which Raddon had undertaken to de- liver the wines to him had received the appro- bation of his principal in England, and says, that his brother in Philadelphia was to pay the plaintiff out of the first proceeds. The de- fendant's brother in Philadelphia, to whom the plaintiff was referred by the letter of the defendant, afterwards writes to the plaintiff that he need not fear, for that he and his brother would detain the money for him. 21O*] *From these facts, the law will infer a promise by the defendant to pay the money, because in justice and good faith he was bound to do so, and gave the plaintiff reason to ex- pect it. On the receipt of the proceeds, he ought instantly to have charged his principal with the payment of the money to his order, and to have credited the plaintiff with it. All that was done, for aught that appears to the contrary, was without anv knowledge of the claim of Baring, and being done by the defendant with the funds in liis hands, and without notice of such claim, that of the plaintiff became the paramount claim. But Raddon was the agent of Baring also, and if he really acted with candor and good faith, then all 'this was done with the concur- rence of Baring, and the approbation that Rad- don sought for and received in England, must have proceeded from Baring. If the assign- ment to Baring was in construction of law to be adjudged fraudulent, and many circum- stances in the case will lead to such a conclu- sion, then his claim is wholly without founda- tion, in reference to the other creditors of Dixon, Williams & Co. If the assignment be admitted as valid, yet as the property specified in it did not pass by actual delivery, then, of two innocent creditors who are struggling de dnmno ecitando, he who obtains the first pos- session, or what is equivalent to it, the first 300 promise from the part}' having possession of the subject, ought, perhaps, to be preferred. 1 I am, therefore, of opinion that the plainttff ought to have judgment. LANSING, Ch. J., was of the same opinion. LEWIS, J. It was contended for the plaint- iff that the delivery of the goods by him to Green, on account of Dixon, Williams & Co., was qualified with a condition that his debts should be first paid out of the proceeds at Madeira; that his right to stop the goods in transitu gave him the right to require such a stipulation; that Green was, therefore, his agent as well as the agent of Dixon, Williams & *Co., that Green's stipulation with [*211 Raddon, therefore, gave the plaintiff a lien on the wines shipped to the defendant, and that the disclosure of the fact to him made it obli- gatory upon him to secure payment to the plaintiff. If this were really the language of the trans- action. I should have little doubt of the plaint- iff's right to recover. But it appears to me to be very different. The case states, that the contract for the goods was made between the plaintiff and Dixon (in behalf of Dixon, Will- iams & Co.), and that the latter being obliged to leave New York, Green was left by him as his agent, to receive and ship the goods for Madeira. Green, in his affidavit, does not state any condition annexed to the delivery of the goods by the plaintiff; but merely a request of the plaintiff (though when it was made does not appear), that he would secure to him part, of a debt due to him from Dixon, Williams & Co., and that in consequence of such request, and to secure to him part of the debt, he took from Raddon the instrument mentioned. The contract, then, between the plaintiff and Dixon, Williams & Co., was completely executed by the unqualified delivery of the goods to Green. This vested the property in the vendees; they became actually possessed of them ; they were not ambulatory, and of course, a right to stop in transits did not exist. Such is flic doctrine laid down in the case of Lickbai-roic v. Mason (2 T. R., 63). Green further states, that he sailed with the goods some time in March, 1791, to the island of Madeira, where they were sold, and the pro- ceeds invested in wines, which, together with other wines he, as agent for Dixon, Williams & Co., shipped in a vessel commanded by Rad- don, to the defendant in the island of Jamaica. On the fourth June, 1791, Dixon, Williams & Co., assigned to Barings & Co., all their wines, goods, wares and merchandises in the island of Madeira, and the proceeds thereof. Barings & Co., sent Raddon out, with instructions to receive the wines, and to transport them to Jamaica or Philadelphia, for the account of Charles Baring. Raddon was also appointed an agent for Dixon, Williams & Co., but it does not *appear to have been with the [*2 1 2 knowledge of Barings & Co. He arrived at Madeira, and there received the wines under the stipulations contained in the instrument already mentioned, and proceeded with them to Jamaica, where he delivered 60 pipes to the 1. See Pothler, Oblijra. n. 73. JOHNSON'S CAHKS, 1 . 1799 JACKSON, EX DEM. RENSSELAER AND RENSSELAER, v. WHITLOCK. 212 defendant, showing him a copy of the paper, and contenting himself with a promise from the defendant that he would hold the wines until accounts were received from England, that Raddon's conduct in signing the said paper was approved of; which accounts he received in October. Raddon proceeded with the resi- due of the wines, amounting to 137 3-4 pipes, to Philadelphia, where he delivered them to Peter Blight, the brother of the defendant. It was observed by one of the counsel for the plaintiff, that the outward cargo was in the hands of Green till the llth July; that the wines were purchased out of the proceeds, at a period subsequent to the assignment to Bar- ings & Co. , and, therefore, not affected by it. But the assignment is not confined to the wines; its terms are sufficiently general to em- brace every species of merchandise which the assignors had at the time in the island of Madeira. And with respect to the outward cargo being there at the time of the assignment, the court must, like jurors, be determined by the probability. From March until June, then, there was time amply sufficient for a voyage from New York to Madeira. But were the fact other- wise, I should doubt whether the plaintiff's right to recover, in this form of action, was strengthened by weakening the title of Bar- ings & Co. The conduct of both Green and Raddon ap- pears to me censurable, because it is calculated to defraud Barings & Co. How far Raddon may have been liable on his stipulation is im- material. He certainly broke his engagement, inasmuch as he exacted no promise from the defendant to pay the plaintiff out of the pro- ceeds of the wine. The promise to retain them until Raddon's conduct should he ap- proved of in England, does not amount to an assumption to pay. Nor is the approbation he 213*] acknowledges to have received, *in my opinion, to be intended an approbation from Barings & Co., for in all probability, from the conduct of Raddon, the defendant was' ignorant of their interest in the wines. Being an agent for Dixon, Williams & Co., he wanted their approbation of the preference which would be thereby given to this appropria- tion. Had he received that of Barings & Co., he could not have hesitated in making the stipulated payment. But on the contrary, previous, perhaps, to a sale of the wines, he received orders from his principals, to hold them subject to the orders of Charles Baring. From all the facts disclosed by the case, I can discover no principle on which the plaint- iff can be entitled to recover. He had no lien on the property, nor is there any assumption on the part of the defendent, on which this ac- tion can be supported. My opinion, therefore, is, that the postea ought to be delivered to the defendant. BENSON, J., having formerly been con- cerned as counsel in the cause, gave no opinion. Judgment for the plaintiff. Cited in 12 Johns., 281 ; 10 Wend., 345 ; 24 Wend., 263; 5 Hill, 615; 1 Johns. Ch., 129; 3 Johns. Ch., 261 ; 46 N. Y., 317 ; 25 Barb., 393 ; 3 Bos., 515 ; 3 Bradf ., 390 ; 1 Hilt., 464. JOHNSON'S CASES, 1. I JACKSON, ex dem. RENSSEI,AEB, AND RENSSELAER T. WHITLOCK. Infancy Ditxeixin Limitation. Whether an infant can be disseised, and Is then bound to bring his action within 10 years after com- ing of aare. THIS was an action of ejectment for lands lying in the County of Columbia, in which, by consent of parties, a verdict was taken for the plaintiff, subject to the opinion of the court on the whole of the evidence. The case briefly stated is, that a certain farm, of which the premises in question are parcel, was in the seisin and possession of one Richard Moore, upwards of 60 years before the trial; that he died seised and possessed, and on his death the farm descended to and vested in John Moore, his eldest son and heir at law, who entered, &c., and was also seised and pos- sessed thereof, upwards of 60 years before the trial, and so remained and continued until the year 1743, when he died, leaving *issue [*214 Richard, his son, an infant two years old, and two daughters, one of them three, and the other four years old. That Eytie Moore, the widow of John Moore, and mother of his in- fant children, remained with his children on said farm, and improved and manured it. That Richard Moore died under age, and un- married. That some time in the year 1750, or 1751, Eytie Moore was in possession of the premises, and some dispute having arisen be- tween her and John Van Rensselaer about the same, it was referred to the decision of Judge De Lancey; and after his determination, Mrs. Moore agreed with Van Rensselaer to hold the premises as his tenant, at a rent of 31. per annum, with a right of common in the com- mon lands of his manor of Rensselaer. That she never would accept a lease from him, but had a paper under his signature promising her the premises during her life; and that she had actually, in consequence, paid him rent. That one of the daughters became of age, on the 28th day of August, 1760, and married one Kittle on the 12tii of December following, and that the other became of age on the 8th of December, 1761, and married one Miller on the 17th of December, 1763. That Miller and his wife lived on the farm with the widow, and worked on shares, until the year 1774, I when they moved away, and the widow re- ! mained solely possessed until the time of her death. After her death, in the year 1785, Kittle and Miller, and their wives, entered and conveyed to the defendant. John Van Rensselaer died in February, 1783, and by his last will devised certain lands, comprehending the premises in question, to John I. Van Rensselaer, one of the lessors of the plaintiff. KENT, J. The material facts on which I found my opinion in this case, are the follow- ing: About the year 1750, Eytie Moore was in possession of the premises, and there arose a dispute respecting the same, between her and the ancestor of the lessor of the plaintiff. It was settled by reference, and Judge De Lancey was the referee. In consequence of this 301 215 SUPREME COURT, STATE OF NEW YORK. 1799 215*] reference, *Mrs. Moore surrendered the premises to the ancestor of the lessor of the plaintiff, and acknowledged him as her land- lord. This I do not regard as a fraudulent pro- ceeding on her part, but as a prudent act, and for the best interest of her daughters, who who were infants and heirs at law, and of whom she was the natural guardian. It was a fair and amicable settlement of a question respect- ing the premises, and preferable, perhaps, to taking other steps which would involve her and her children in an expensive lawsuit. None of her acts, however, could destroy or weaken the rights of her children, but I con- sider them as dispossessing the infants of the premises, and transferring that possession to the ancestor of the lessor of the plaintiff, and who afterward devised the premises to one of the lessors. These daughters had their elec- tion on coming of age, to disaffirm all these proceedings, to recover the possession back, and call on Van Rensselaer to account to them for the rents and profits. 1 They came of age about 10 years after the reference, and conse- quent acts of their mother, to wit: in 1760 and 1761, and they married shortly after they respectively came of age. No act was done by them after they came of age, nor by their hus- bands after their marriage, that showed a dis- sent from what their mother had done; on the contrary, it appears that their respective hus- bands offered to purchase of Van Rensselaer. Miller and his wife worked on the premises for the widow, on shares, and then moved away in the year 1774, and left her in sole occupa- tion. She continued, from time to time, to acknowledge herself tenant, and to pay rent to the ancestor of the plaintiff. This acknowl- edgment she made in 1773, and paid rent as late as the year 1783. Here was, I consider, a possession of the premises by the ancestor of the lessors for upwards of 30 years, and which continued for more than 10 years after the daughters came of age, and with the knowledge and assent of them and of their husbands. They were, therefore, barred of their right of entry by not bringing their suit, according to the directions of the statute of limitations, within 10 years next after their respectively 216*] *coming of age. I am, therefore, of opinion, that their subsequent entry in 1785, was tortious ; that the ancestor of the lessor had acquired a right of possession, which he devised to one of the lessors before his ouster, and consequently, that the plaintiff is entitled to recover. BENSON, J., was of the same opinion. RADCLIFF, J. , not having heard the argument in the cause, gave no opinion. LEWIS, J. The question is whether John I. Van Rensselaer, or the ancestor under whom he claims, ever had such a possession of the premises as will entitle him to recover in this action. It was admitted by his counsel, that Mrs. Moore could do nothing to prejudice the 1. See 3 Wils., 523, 524, 527. If a person jointly in- terested with an infant, renew a lease to himself, the infant, if the lease prove beneficial, may hold him to have acted as trustee. 1 Bos. & Puller, 376. 302 inheritance, but it was insisted that her daugh- ters ought to have entered within the ten years, after they came of age, being the time allowed by the statute, and that having neglected so to do, they are barred of their remedy, and that John Van Rensselaer, deceased, thereby ac- quired such a right of possession as will be sufficient for his representative, John I. Van Rensselaer, to recover in the present action. These conclusions appear to be deduced from false premises. They are founded on the sup- position that Mrs. Moore had an independent possession of the premises, at the time of her agreement with John Van Rensselaer. But the fact is not so. If she had a possession, it must have been as tenant to her sort, and her attornment to a stranger was void by the stat- ute; for it was not in consequence of a judg- ment at law, or a decree of a court of equity, nor by consent of her landlord, who was an infant. Nor could the mere receipt of rent by Van Rensselaer, independent of the statute, have given him a possession, so as to take it out of the person in whom the right was, without an actual entry. (Bui. N. P., 102.) And according to 1 Rol. Ab., 659, pi. 12, he must actually put the tenant out of possession. The fact, however is, that Mrs. Moore was neither a tenant, nor had any trans- ferable possession of the premises during the infancy of her children, and therefore John Van Rensselaer could acquire none from her. Whether she acquired a possession *sub- [*2 1 7 sequently to the year 1760, the period at which her eldest daughter arrived at age, is not ma- terial to inquire; because, between that period and the year 1785, when her daughters came again into possession, there was not, deducting the period of the war, a possession of 20 years in the widow. In strictness, she acquired no possession until Miller and his wife quitted her in 1774. To establish this position we must examine the relation in which Mrs. Moore stood, at the death of her husband, to his children, and the estate that descended from him to them. She was at first guardian in socage to her infant son, and at his demise became so to her daughters, who were his heirs. She was the person on whom, by law, this species of guardianship devolved; and had she even been a stranger to them, so careful is the law to protect the rights of infants, that it is in their election, at any time, to consider her such or not. "If a stranger entereth into the lands of an infant within the age of fourteen and taketh the profits of the same, the infant may charge him as guardian in socage, and after the age of fourteen years he shall be charged as bailiff at any time before or after his age of twenty-one years." (Co. Lit., 89 b. and 90 a. See also, Cro. Car., 229, Cro. Jac., 219, and Fitzh., 118 ft.) The same rule, in effect, obtains in equity. "If a stranger enters and receives the profits of an infant's estate, he shall, in the consideration of the court, be looked upon as a trustee for the infant." It was so ruled by Ld. Chan. Jefferies, in the case of Lord Falkland. (2 Vern., 342.) In the case of Dormer v. Fortescue (3 Atk., 130), Lord Hardwicke establishes the rule agreeably to the authority of Lord Coke. "Every person (says he) who enters on the estate of an infant, enters as a guardian or bailiff for the infant." JOHNSON'S CASES, 1. 1799 HEERMANCE v. DELAMATER. 217 As far as respects the case before the court, the difference between a guardian and a bailiff is in name only. Each is liable to account, and neither can do any act to prejudice the in- fant. As to . the guardian's interest in the estate of the ward, there is some diversity of sentiment, which will be found, however, not 218*] to affect this *case. He can make leases and grant copies; hence some have held that he had an interest; but the better, and more general opinion will be found to be, that the demise is, in the one case, to be considered as the act of the infant by his guardian.and much that the copyholder in the other is in by the custom. The advocates of the former opinion, however, admit that his interest is not f orf eita- ble or transferable. In the case of Shoplane v. Boydle (Cro. Jac., 98), three of the judges, against Walmsley, insisted that a guardian in socage had an in- terest; and they inferred it from his having power to make leases, and to make avowry in his own name and right, and they referred to the case of Osborn v. Garden & Joy (Plowd, 293), in which case the estate and interest of the guardian is spoken of as enuring to the use of the infant; and it is expressly adjudged, that the use shall be required by the infant of every one who has the land, and that the guar- dian shall oust every one that holds the land to another purpose; and in respect to leases, they are said to be, in effect, the acts of the infant by his guardian. The estate and interest here spoken of clearly mean not a beneficial or transferable interest. In Witti* v. Whitewoods (1 Leo., 312), it is ad- judged by Anderson,/., and Windham, J. , that a guardian has no interest whereby he can ac- cept a surrender, but has only power by law to take the profits to the use of the heir, and if he enter for a condition broken, it must be in the name and right of the heir. In Fitz- herbert, 118 h., it is said that a guardian in socage hath no right unto the land but as bail- iff. In equity, guardianship in socage is a trust, and not a profit. (1 P. Wms., 704, 721.) But whether he has or has not an interest, is not material in the present case, since his in- terest is not transferable, and he can do no act but such as is for the infant's benefit. In Har- grave's 13th note on Coke's Commentary on the 123d sec. of Lit. , it is said to be settled, that a guardianship in socage is wholly for the in- fant's benefit, and is not a subject of alienation, forfeiture or succession; and in the Commen- tary, the reason assigned why such guardian 219*] shall not present toa*benefice, in right of the heir, is, because he cannot account there- for, as he can make no benefit thereof, the law abhorring simony; thus clearly establishing what was before observed, that his powers ex- tend to such acts only as shall benefit the es- tate, and for which he can account. From these several authorities and the state of the evidence, the following conclusions ap- pear to me satisfactorily to result: 1. That the possession of a guardian, if any he has, is of a special and qualified nature, recognized only where it is to benefit the estate of the heir, but in no instance where it may injure it. 2. That it appears to be the better opinion, that the possession of the estate is, in law, in JOHNSON'S CASES, 1. the infant; and that the guardian has only an authority over it in regard to the rents and profits. 3. That, in the present case, the infants were in the actual possession; for if their guardian could transfer an interest to John Van Rensselaer, it must have been one held adversely to the in- fants; and as they were living on the farm, they would be adjudged in possession, accord- ing to the rule, that "where two are in pos- session, the possession is to be judged in him that hath the right." (Hob., 322.) 4. That the mere receipt of rent by John Van Rensselaer, without an actual entry, did not give him a possession, so as to take it out of those in whom the right existed. 5. That if John Van Rensselaer had been actually in possession, as between him and the grantors of the defendant, he would have been a mere trustee, and accountable to them as. guardian or bailiff, until they arrived at age, when they defeated the trust by taking the management into their own hands, and so in- capable of maintaining this action against their representative. My opinion, therefore, is, that the verdict ought to be entered for the defendant. LANSING, Ch. J., was of the same opinion. [As RADCLIPF, J., gave no opinion, and the other judges were equally divided, no judg- ment was rendered.] *HEERMANCE [*22O DELAMATER. Amendment. Jurata and digtringas may be amended after ver- dict, without costs. MR. BURR moved to amend thejurata and distringas, in several particulars, so as to correspond with the actual proceedings in the cause. Mr. Metcalf, contra. Per Curiam. It being after verdict, the amendment may be allowed of course, and without costs. Rule granted. CATHCART . CANNON, Manucaptor, &c. Bail Exonereter Costs Demand. Where bail are relieved, on payment of costs, this is a condition which they must offer to perform, without waiting for a demand from the plaintiff, or a tender of a bill of costs. AT the last January Term, the defendant was exonerated as special bail, on payment of costs, which not having been paid, the plaint- iff proceeded. Mr. Burr now moved to have the proceedings stayed, on the ground, that as the costs had never been demanded, nor any bill exhibited. 808 230 SUPREME COURT, STATE OF NEW YORK. 179* there was no neglect on the part of the defend- ant. Per Curiam. The rule for the relief of the bail, in January Term, was conditional, and it was the duty of the defendant to have sought the plaintiff, and paid the costs to him, with- out waiting for a demand, or tender of a bill. He can only be relieved now, on paying instnnter the costs, ordered at the last January Term, and also the costs of the subsequent proceed- ings, and of resisting this application. 221*] *SALTONSTALL v. WHITE. Ejectment Vacant Possession English Rules. The rules as to proceedings in ejectment, as for a vacant possession in England, do not apply to the new or unsettled lands of this country. THIS was an action of ejectment for lands belonging to "The Holland Company," in the County of Ontario. The proceedings were as for a vacant possession. It appeared that the company had surveyed the lands, and erected buildings on some part of the tract. Mr. D. A. Ogden (Mr. Troup and Mr. B. Liv- ingston on the same side) moved that William Willinck and three others, commonly called "The Holland Company," be put in the place of the present defendant. Mr. E. Livingston, contra. ( Pei- Curiam. The strict principles applica- ble to proceedings in ejectment as for a vacant 304 possession in England, cannot, without mani- fest hardship and inconvenience, be applied to the unsettled lands of this country. Besides, the tract has been surveyed, and buildings have been erected on some part. Rule granted. TOWERS v. VIELIE. Costs Trespass Certificate given after Circuit. In actions of trespass and assault and battery, a certificate of the judge before whom the cause was tried, to entitle the plaintiff to full costs, may be given after the Circuit. THIS was an action of assault and battery, in which a verdict was found for the plaintiff, at the Circuit, for six cents damages and six cents costs. A certificate was given by the judge before whom the cause was tried, to entitle the plaintiff to full costs, but it was not given at the trial. Mr. Woodivorth moved to vacate the certifi- cate, contending that it ought to have been given according to the act, by the judge of the trial, sedente curia. Per Curiam. The 5th section of the Act of February 12, 1787, if reasonably interpreted, means only that the certificate should be given by the judge who presided at the trial, not that the act of making out the certificate should be performed at the time. Rule refused. JOHNSON'S CASES, 1 . [END OP OCTOBER TERM.] CASES ARGUED AND DETERMINED SUPREME COURT OF JUDICATURE STATE OF NEW YORK, TKRIVI. iisr THE YKA.R isoo. 223*] *VREDENBERGII v. MORRIS, Sheriff, &c. Lien Judgment Leasehold. A judgment is no lien on the estate of a lessee for years. Citations 8 Co., 171; 2 Roll., 157; 3 Atk., 739. THE plaintiff obtained a judgment against White & Stout, which was docketed, and the roll filed, on the 22d March, 1799. On the 12th of the same month, White became insol- vent; on the 23d, he assigned and conveyed in due form of law, and bona fide, all his estate, real and personal, to trustees, for the benefit of all his creditors. At the time of docketing the judgment, White had a leasehold estate for the term of 14 years, in the city of New York, into which the trustees entered by virtue of the assignment to them, and which, 224*] on the 15th April *they sold, in execu- tion of their trust, to one Seton for $1,900. On the 13th May, 1799, a fi. fa. issued on the judgment above mentioned, which was delivered to the defendant, as Sheriff of New York, with directions to seize and sell the leasehold estate of White. The defendant re- turned on the execution nulla bona, conceiving that he had no power to sell the leasehold es- tate, and there was no other property. Mr. Pendleton for the plaintiff, and Mr. Mtinro, for the defendant, submitted the ques- tion, whether the leasehold estate was bound by the plaintiff's judgment, and liable to be sold on the execution, and if so, it was agreed that the defendant should immediately pay the debt due to the plaintiff. LANSING, Ch. J., delivered the opinion of the court: The determination of this question depends upon the construction of the statute of this State, passed the 19th March, 1787. The second section provides that no judgment shall affect any lands or tenements, as to purchasers or mortgagees, but from the time of filing the JOHNSON'S CASES, 1. N. Y. REP., 1 roll; and the third section extends the provis- ion to the time of docketing. These sections are transcripts of the statutes of 29 Car. II. ch. 13, 14, and 4 and 5 Wm. and Mary, ch. 20. ; but the section which precedes them, subjecting all lands, tenements, and real estate of debtors, to be sold for the satisfaction of their debts, or execution, is a departure from the English law. When this question was first presented, I had doubts whether the docketing of the judg- ment did not bind the interest of the tenant for years, as comprised within the terms, lands, tenements, or hereditaments. If it did, the delivery of the fi. fa. in this instance could only operate upon White's remaining property, the mere personal chattels. The word tene- ment in legal signification, is appropriate to real estate and imports everything that may be *holden, if it be of a permanent nat- [*225 ure; hence it is construed to be a term more comprehensive than land. This, however, is merely a restraining statute. It creates no positive rule on the subject. It purports to re- strain the operation of the law already in ex istence; and to enable us to give it a proper inter- pretation, it is necessary to examine what was held to be the law, before the passing of the statute of 29 Car. II. This appears from Fleetwood's case, 8 Co., 171, in which it is laid down, that a bona fides&le of a term for years, after a judgment, is good; but not after execution awarded, and for this is cited 2 Roll. , 157, and several cases from the Year Books. (2 Hen. IV., 14; 11 Hen. IV., 7; 9 Hen. VI., 58.) This shows how the law stood before the statute. In the case of Burden \. Kennedy (3 Atk., 739), Lord Chancellor Hardwicke held that a leasehold estate was affected by a fieri facia* lodged in the sheriff's office. This was a long- time after the English statutes first above men- tioned were passed, and it shows that the same doctrine as to this point, had prevailed both before and after the passing of those statutes. We are, therefore, of opinion that the docketing of the judgment does not bind a 20 305 225 SUPREME COURT, STATE OK NEW YORK. 1800 term for years, and that the plaintiff take j nothing by his motion. i Rule refused. Cited in 19 Johns., 75 ; 2 Cow., 498; 7 Wend., 466; 17 Wend., 675; 20 Wend., 420. 226*] *LE ROY, BAYARD AND M'EVERS c. GOUVERNEUR. Marine Insurance "Free from average, unless general " Actual Total Loss. On a policy of insurance containing the usual warranty " that corn, &c., shall be free from aver- age under seven per cent, unless general," the in- sured can only recover for general average, or for an actual as distinguished from a technical total loss. Citations 3 Burr., 1550; Park, 114, 116; Millar, 359; Marsh., 138-155. THIS was an action on a policy of insurance on goods shipped on board the Anne and Mary, at and from New York to Maderia. The plaintiffs declared for a total loss, by the perils of the sea. On the trial before Mr. Justice Kent, at the last March circuit, in the city of New York, a special verdict was found, which, as far as the facts are material to be noticed, stated that the policy was subscribed by the defendant, on the 10th September, 1798; that it was accom- panied with the usual memorandum in car^o policies, by which, among other things, gram of all kinds was warranted by the assured, " free from average under 7 per cent, unless general;" that the ship was laden with corn and staves, to wit: 5,514 bushels of Indian corn, of the value of $2,983, and staves to the value of near $300; that she proceeded on her voyage on the 16th September, 1798, and was overtaken by a storm on the 21st of the same month, and on the 27th became so much in- jured that she was obliged to seek a port, and on the 17th October arrived at New Castle, on I he Delaware, where she could get no repairs, and could find no stores in which to put her rargo; that the yellow fever raged violently at Philadelphia at that time, and she remained at New Castle until it abated; that on the 30th October she proceeded to Philadelphia, and on unlading her cargo there, all the corn was found to be so much damaged as to be un- merchantable, and unlit to be re-shipped; that a considerable quantity of the lumber had been thrown overboard during the storm, for the preservation of the ship and the residue of the cargo; that the plaintiffs received intelli- gence of the loss on the 24th November, and on the same day gave notice thereof and made 227*] due proof *of the loss and their interest and abandoned to the defendant and the other insurers. The question which arose on the special verdict was, whether the plaintiffs were en- titled to recover for a total loss, or for a general average only. Mr. D. A. Of/den and Mr. Harison for the plaintiffs. 806 Mr. Trovp and B. Livingston for the de- fendant. Per Caria-m. There is no doubt that the plaintiffs are entitled to recover a proportion of the general average occasioned by the jetti- son. The ship, freight and cargo must con- tribute to this loss. The claim for a total loss depends on the construction to be given to the exception in the memorandum, " free from average unless general." The French writers Valin, Emerigon and Pothier, consider it as protecting the underwriter from every partial, but not against any total loss. The English construction is, that the pro- tection extends to all losses except an actual, as distinguished from a technical total loss. (3 Burr., 1550: Park, 114, 116; Millar, 359, S. C.) The clause appears to have been introduced in the year 1749, and the English decisions upon it recognize a usage comformable to this con- struction, coeval with the introduction of the clause. We are, therefore, of opinion that the rule must be the same with us, and of course, that the plaintiffs can recover for the general average only. (Marshal, 138-155.) Judgment accordingly. Approved 1 Caine, 211-13. Distinguished 3 Rob., 543. Cited in 2 Johns. Cas., 247 ; 14 Johns., 145 ; 4 Wend., 43; 19 N. Y., 277; 44 N. V., 19; 9 Hun., 386; 17 Barb., 307; 1 Rob., 499; 12 Leg. Obs., 76: 7 How. 236 SUPREME COURT, STATE OF NEW YORK. 1800 but there is nothing in the contract between the parties in the present case, or in their sub- sequent conduct, which can afford any ground for that purpose. No rent is reserved; no pe- riodical services are to be performed; no act by which the original contract can be supposed to have been varied; it presents simply the stipu- lation, that the land shall be held by the one party for the other. The defendant appears in this instance to re- sist the performance of the only service for which his enjoyment was permitted, the pres- ervation of the land he possessed for the heirs and devisees of Sir Peter Warren; he has entered 237*] *into a deliberate contract to perform this service; he was to hold it as their servant or bailiff, and to the performance of that duty, we think, under all the circumstances, he ought to be strictly held. The bringing of this action was a legal de- mand, which could not have subjected the de- fendant to any inconvenience if he had dis- claimed. He might have discharged himself from the mesne profits and costs, by showing the manner and condition of his occupancy. We are, therefore, of opinion on both points, that the defendant must take nothing by his motion. Rule refused. THE FREEHOLDERS AND INHABITANTS OF GRAVESEND, Demandants, T. VOORHIS ET AL., Tenants. Writ of Right View. In an action on a writ of right, the tenants are en- titled to a view of the premises as a matter of right, in all cases, except those in which it is restrained by the statute. HARISON, for the tenants, demanded a view of the premises. Mr. Riggs, contra, for the demandants, ob- jected, on the ground that, from the descrip- tion of the premises in the count, and other circumstances shown to the court, a view could not be necessary for any beneficial purpose to the tenants. Per Curiam. The tenants are entitled to have the view as a matter of right,, and we cannot refuse it, except in the cases restrained by the statute. Rule granted.^ 238*] *THOMPSON . TOMPKINS. Reference Report Motion to set oxide Re- port in Defendants Possession. A motion to set aside the report of referees will be heard, though it is not tiled, it having been de- livered to the defendant's attorney, who kept it in his pocket. THIS cause had been referred to referees, who reported in favor of the defendant, 1. See Revised Laws, vol. 1, p. 89 and 383. 310 and delivered their report to the defendant's attorney, which was not yet filed. Mr. Riggs applied for leave to bring on the argument of a motion to set aside the report. Mr. Colernan, for the defendant, submitted whether the motion to set aside the report could be heard before the report was filed. Per Curiam. It does not lay in the mouth of the defendant to make this objection. If the report be not filed, it is his own neglect, and we will not delay the motion for that reason. Rule granted. SMITH AND SMITH t>. BLAGGE. Evidence Of Foreign Record Attestation. The record of a court in another State will not be received in evidence, unless the attestation be certi- fied by the presiding judge, in the manner directed by the act of Congress. Laws of U. S., Vol. I., p. 115. THE plaintiffs brought an action of debt on a judgment obtained in the Superior Court of the State of Connecticut. The de- fendant pleaded mil tiel record, on which issue was joined. A day having been assigned for the trial, Mr. Hamilton, for the plaintiffs, produced a copy of the record, which was authenticated in the mode directed by the act of Congress, except that the presiding judge did not certify that the attestation of the clerk of the court in Connecticut was in the usual form prescribed by the laws of that State. Mr. B. Livingston, for the defendant, relied on this, and other objections, against the com- petency of the proof of the record. Per Curiam. Without meaning that any inference shall be drawn from the opinion now delivered, as to the propriety of the present plea, which is conceded by the issue, *we think the copy of the record is not [*239 well authenticated. We cannot officially know the forms of another Slate, and therefore they ought to be proved. The act of Congress directs the mode of proof, and requires that the presiding judge of the court from which the copy is obtained shall certify that the at- testation is in due form. This not being done, the record is not sufficiently proved. On the application of the plaintiffs, the court assigned another day to produce a copy duly authenticated. Cited in-18 N. Y., 94; TJ4 N. Y., : Hemp., 540. S; 45 N. Y.,32; VAN RENSSELAER r. DOLE. Case Made Judgment Stay. The court will not set aside a judgment entered on a verdict, where a case is made, nor hear the motion for a new trial, unless an order to stay proceedings has been obtained. A FTER verdict for the plaintiff, a ca.se was -LA. made on which to found a motion for a new trial, but the defendant omitted to ob- JOIINSON'S CASES, 1 . 1800 BENTLEY v. WEAVER. 239 tain a certificate that there was probable cause to stay the proceedings, and the plaintiff entered judgment on the verdict. Mr. Van Vechten moved to set aside the judgment as irregular, and to be heard on the motion for a new trial. Mr. Woodworth, for the plaintiff, insisted that the defendant had been guilty of neglect, in not obtaining a certificate to stay proceed- ings, and that the judgment was regular. Per Curiam. It was incumbent on the de- fendant to obtain a judge's certificate to stay the proceedings, which is expressly required by the fourth rule of January, 1799. Not having done this, nor accounted for the neg- lect, we cannot interfere. Rule denied. N. B. The case was afterwards argued and decided on its merits, by consent of parties. See post, 279. Cited in-37 Ind., 80. ;24O*| *BENTLEY v. WEAVER. Change of Venue Witnesses Stipulation to Give Material Evidence. When the defendant moves to change the venue, on the ground that the cause of action arose in another county, &c., the venue will be changed, un- less the plaintiff will stipulate to give material evi- dence in the county where it is laid. T?MOTT, for the defendant, moved to change -C^ the venue from the City and County of Albany to the County of Chenango. The motion was founded on an affidavit of the de- fendant, stating that the action was brought on a special agreement made in the latter county, and that the cause of action, if any, arose in that county, and not elsewhere, and .also stating that eight or ten witnesses, whose testimony would be material on the trial, re- sided in that county. Mr. Woodworth, for the plaintiff, opposed the motion on two grounds. 1. That the declaration contained no other than the common money counts, and that, therefore, the action could not be founded on a special agreement, and the plaintiff was en- titled to retain the venue where it was laid. 2. On an affidavit of the plaintiff, stating that the cause of action arose in Saratoga, and that two of his witnesses resided there. LANSING, Ch. J., delivered the opinion of the court: The affidavit of the defendant as to the place where the cause of action arose, is in the NOTE. Change of venue on ground that cause of action arose in another county. Compare N. Y. Code Civil Procedure, sections 218, 983,990; Gen'l Rules Pr., 47, 48 ; Woodsy. Van Rankin, 1 Caines, 122 ; Clinton v. Crosswell,2 Cames,245 ; Frank- lin v. Underbill, 2 Johns., 374 ; Manning v. Downing, 2 Johns., 453 ; Tillinghast v. King, 6 Cow., 591 ; Seri- ally v. Wells, 1 Cow., 196 ; Vanderzee v. Van Dyck, 1 Cow., 600. Change of venue because of residence of witnesses. See Gourlay y. Shoemaker (post, 392). When motion should he made. See Delavan v. Baldwin, 3 Caines, 104 ; Rules Pr., above cited. JOHNSON'S CASES, 1. usual form, and instead of the plaintiff's meet- ing the application by stipulating to give evi- dence arising in the county where the venue is laid, he has sworn that the cause of action arose in another county (Saratoga), and that two of his witnesses resided there: at the same time cautiously avoiding the negative, that the cause of action did not arise elsewhere. This was irregular, and cannot assist him to retain the venue in Albany. As to the other objection, although the dec- laration contains the money counts only, yet the special agreement may still come in ques- tion, and, therefore, unless the plaintiff *will stipulate that he will give no evi- [*24 1 dence of a special agreement, or that he will give material evidence arising in the City and County of Albany, the venue ought to be changed. Rule granted. See 2 Johnson, 453, 481. WEAVEL . LASHER. Mandamtis To Enter Judgment Nonuit on New Trial. Where a party submits to a new trial on the merits, in a court of common pleas, and is non- suited at the trial, it is too late to apply to this court for a mandamus to compel the court below to enter judgment on the verdict given on the first trial. MR. METCALF moved for a mandamus to the Court of Common Pleas of the County of Montgomery, commanding them to proceed to judgment on a verdict obtained by the plaintiff against the defendant, in June Term, 1796, of that court. He founded his motion on a copy of the minutes of that court, cer- tified by its clerk, by which it appeared that the verdict was set aside in the same term, on the merits, and that in February, 1798, a new trial was had, and the plaintiff was nonsuited. Per Curiam. The plaintiff, by submitting to the new trial, has waived his right to the interposition of this court. Rule refused. *TORREY c. MO-REHOUSE. [*242 1. Nonsuit Trial not had Notice Counter manded Epidemic. 2. Motion Absent At- torney Later Hearing. 3. Costs Motion to set aside Proceeding. Where the plaintiff was under a stipulation to try a cause, but countermanded the notice of trial, on account of an epidemic prevailing in the city of New York, where the cause was to be tried, which prevented his being prepared for trial, the court re- fused to grant the rule for a nonsuit. The plaintiff's attorney residing in New York, and not having time to prepare, in order to oppose a motion to be made at Albany, on the first day of term, of which six days notice had been given, was held a sufficient excuse for not opposing the motion on the first day. THE plaintiff was under a previous stipula- tion to try this cause at the last sittings in New York. On the first day of the present term, Mr. 311 343 SUPREME COURT, STATE OF NEW YORK. 1800- Riggs, for the defendant, moved for a rule for judgment as in case of nonsuit; having given six day's notice of the motion, and no pefson appearing to oppose it, it was granted of course. Mr. Coleman now moved to set aside the judgment, on an affidavit, stating that the cause was noticed for trial at the last sittings in New York, and countermanded, because the plaintiff had every reason to expect that he could not then be prepared for the trial on ac- count of the interruption to business occasioned by the epidemic which prevailed in the city. It was also shown that the plaintiff had offered to try the cause, and would probably have done so after the sittings commenced, if he could regularly have brought on the trial. Mr. Biggs, for the defendant, farther ob- jected, that if the excuse were otherwise suffi- cient, which he did not admit, it ought to have been made on the first day of the term, and could not now be received to set aside the judgment then entered. Mr. Coleman answered that the distance of his residence in New Y'ork, and the short notice of the motion prevented him from being in readiness to oppose it on the first day. Per Ouriam. We think the reason for countermanding the notice of trial, under the circumstances of the case, was sufficient, not- withstanding the plaintiff's stipulation; and considering the shortness of the notice of the motion for a nonsuit, and the distance of the residence of the plaintiff's attorney at New York, we also think the excuse for not oppos- ing it on the first day ought to be admitted. But the judgment being regular, it is set aside on payment of costs by the plaintiff. Rule granted, on payment of costs. 243*] *CASE v. VAN NESS. Certiorari Judgment Court not held as stated in Summon*. On a return to a certiorari to a justice, it is error, if it appear that the court was not held at the place mentioned in the summons, and a judgment was given by default. N certiorari from a justice's court. The exception relied upon for the plaintiff in error was, that it did not appear from the jus- tice's return that he held his court at the place appointed in the summons. Mr. Emott for the plaintiff. Mr. Woodworth for the defendant. Per Curiam. This exception is fatal, as the defendant below did not appear, and the judg- ment against him was given by default. Judgment reversed. Cited In 12 Johns., 417; 1 Cow., 113. 312 FORD v. GARDNER. Judgment Summons Declaration Variance.. In an action before a justice, the plaintiff declared by a different name from the one mentioned in the summons, but the identity of the person was ascer- tained; the defendant did not appear, but suffered judgment by default; it was held that he should have appeared and taken the advantage of the variance before the justice, but could not avaft himself of it afterwards. N certiorari from a justice's court. Mr. Emott, for the plaintiff in error, relied on the objection that the plaintiff below de- clared before the justice by a name different from that in the summons, to wit, by the name- of Carner. Mr. Woodworth, for the defendant, answered, that it appeared by the return that the plaintiff below, as named in the declaration, was in fact the same person named in the summons,, and that the return described him as such. Per Curiam. The defect is thereby cured. The identity of the plaintiff below being as- certained, it was the duty of the defendant there to have availed himself of the variance before the justice, instead of which he did not appear, and suffered judgment by default. Judgment affirmed. Cited in 18 Abb., 78. SALTER AND STEELE [*244 c. BRIDGEN. one of the Attorneys, fcc. Service On Attorney. Service of a copy of a bill against an attorney, on- a person in his office, who appeared to be one of his family, was held not sufficient where the receipt of it was denied, and no reason shown why a better service was not made. MR. TROUP moved to set aside a default entered in this cause for not pleading, on an affidavit by the defendant, that a copy of the bill filed therein had not been served on him, nor had at any time come to his hands. Mr. Evertson opposed the motion, and offered affidavits on the part of the plaintiffs, showing that a copy of the bill had been served by de- livering the same to a person who appeared to be one of the defendant's family, at his office; but it was not proved to have been served either on the defendant, personally, nor on any clerk or person employed in his office. Per Curiam. The service by delivering copy to one of the defendant's family, although at his office, is not of itself -sufficient, especially when it is denied to have been received by him, and no reason is shown why a better ser- vice could not have been made. Let the de- fault be set aside with costs. Motion granted. JOHNBOU'S CASES, 1. 1800 DOYLE, SHERIFF, &c., v. MOCLTON ET AJL. 245- 245*] *CASE v. SHEPHERD. 1. Case made Judgment Verdict Stay. 2. Judgment Setting aside Stay Certificate. After a verdict, unless a certificate or ofder of a judge to stay proceedings be obtained, the party in whose favour the verdict is given, though a case be made, may proceed to enter up judgment. After judgment entered, the court will not hear a motion to set aside a verdict, unless there has been a certifi- cate of a judge, or an order to stay proceedings. A party who is dissatisfied with the refusal of the judge to grant an order to stay proceedings, may apply at the next term to the court for that purpose. MR. SPENCER, for the defendant, moved to bring' on the argument for a new trial in this cause. Mr. Van Vechten, contra, objected, because a judgment had been regularly entered, and no order had been obtained to stay proceedings after the verdict. Per Ouriam. The true construction of the 4th rule of January Term, 1799, is, that the notice with a judge's order to stay proceedings, is a substitute for the former practice of a rule to show cause; and, therefore, if the party neglects to obtain, or cannot obtain, an order to stay proceedings, the consequence is, that if, when the hearing of the motion is to come on, a judgment has been duly entered, he can- not be heard on the motion ; for we will not hear an argument to set aside a verdict, default, or inquisition, after a judgment has been duly entered. There is nothing in the rules of the court to prevent a party, who is dissatisfied with the refusal of a judge to grant a certificate, or order to stay proceedings, from applying to the court for that purpose. Though the defendant is not, therefore, strictly entitled to be heard, yet, as there ap- pears to have been a misconstruction of the rule, we will, in the present instance, hear the motion. Cited in 1 Johns., 139 ; 4 Hill, 556 ; 45 N. Y., 324 ; 5 Bos., 682; 4 Rob., 640. 246*] *DOYLE, Sheriff, &c. ( MOULTON ET AL. 1. Pkdding Election Demurrer. 2. Id. Demurrer New plea Amendment. After a demurer is put in, and withdrawn, it is too late to move that the defendant elect one of several pleas, and abide by it. Before a default for not joining in demurrer, a party may amend the pleading demurred to ; but he cannot add a new plea. THIS was an action on a bond given to the sheriff, pursuant to the Act of the 5th April, 1798, for regulating the liberties of gaols. The defendant pleaded five pleas. 1. Non estfactum. 2. Performance of the condition. 3. That the escape was by casualty, and there was a return of the prisoner before the action was brought. ' JOHNSON'S CASES, 1. 4. That the penalty of the bond was for more than double the amount for which the prisoner was confined, and so not agreeable to the act. 5. That the condition of the bond does not conform to the act. There was a demurrer to the second and 1 third pleas, after which and before a default or rejoinder in demurrer, the fourth and fifth pleas were added. Mr. Henry, for the plaintiff, withdrew the demurred, and moved that the defendant should elect one of the three first pleas and abide by it, and that the fourth and fifth pleas should be struck out for irregularity. Mr. Woodworth, contra, contended that the pleas ought to stand, though apparently in- compatible, and cited 2 Black. Rep., 1093; and that under the 8th rule of April Term, 1796, it was regular to add the two last pleas. Per Guriam. The plaintiff, after a de- murrer, comes too late to compel the defendant to elect his plea. As to the other part of the motion, the rule referred to merely says, that before the default for not joining in demurrer is entered, the party may amend the pleading demurrer to. It does not extend so far as to allow the party to add new pleas. Let tlie fourth and fifth pleas be struck out. Distinguished 4 Johns., 50. *CUYLER v. VANDERWERK. [*247 Stay of Proceedings Costs Nonsuit Second Trial. If a plaintiff voluntarily suffers a nonsuit, and then brings a second action without paying the costs- of the first, the defendant may, at any time before trial, move for a stay of proceedings until the costs of the first suit are paid. A JUDGMENT as in case of nonsuit had been entered in a fprmer cause, for not proceeding to trial. The plaintiff then com- menced a second suit, for the same cause of action, without paying the costs of the first. A plea was put in, and the cause noticed for trial. Mr. Emott, for the defendant, now moved that all proceedings be stayed until the costs of the first suit be paid. He cited 1 Term Rep., 511. Mr. Wood/worth, contra, cited 2 Black. Rep., 741; 3 Wilson, 149; 2 Burr., 1025. Per Curiam. The plaintiffs having volun- tarily suffered a nonsuit in the first suit, the second is to be deemed vexatious; and the de- fendant is never too late, pending the second suit, before trial, to make his application to stay the proceedings. Rule granted. Approved 27 How. Pr., 156. Cited in 2 Cow., 503 ; 64 Ind., 20. 315 241 SUPREME COURT, STATE OF NEW YORK. 1800 BARRETT v. FORRESTER. Nonsuit Trial not had Replevin. In replevin both parties are actors, and a judg- ment as in case of nonsuit for not proceeding to trial, is never granted. THIS was an action of replevin, and the plaintiff having neglected to bring his cause to trial, Mr. Burr, for the plaintiff, now moved for judgment as in case of nonsuit. He cited Barnes, 317. Mr. Harison, contra, cited Buller, 65; 3 Term Rep., 661; 1 Black. Rep., 375. Per Curiam. In an action of replevin, both parties are considered as equally actors, and either may carry down the cause to trial. A judgment, therefore, as in case of nonsuit, is never granted in* an action of replevin. Rule refused. Cited in-1 Code Rep., N. S., 37. 248*] *HOLMES v. LANSING. Amendment After Plea Owls Imparlance. The plaintiff cannot amend his declaration after plea pleaded, without paying costs, and giving an imparlance. MR. EMOTT moved to amend the declara- tion after plea pleaded, which was granted. A question then arose whether the defendant was entitled both to an imparlance and to costs. The following cases were cited: 1 Str., 950; 1 Dallas, 494; 2 Black. Rep., 785. Per Curiam. There seems to be some di- versity of practice in the English courts in this respect. This court will, therefore, establish a rule of its own. As the amendment is a benefit to the plaintiff, it is reasonable that he should pay the costs; and it is equally reason- able that the defendant, after an amendment, should be allowed to .plead de novo. We are, therefore, of opinion that the amendment be allowed, on payment of costs, and giving an imparlance. Rule granted. McEVERS v. MARKLER. Motion To set aside Proceedings Term. A motion to set aside proceedings for irregularity must be made at the next term after the irregularity happens. T?IGHT days notice of trial was given in this -Cj cause, for the last circuit in New York. The defendant being more than 40 miles from the place of trial, considered the notice given as void, and paid no regard to it. An inquest was taken by default, and the defend- ant now moved to set aside the verdict. entitled to 14 days notice of trial, yet the notice that was given was sufficient to put him on inquiry, and he ought to have made his appli- cation at the last term. Having suffered a term to intervene since the verdfct was taken, he comes too late with the present motion. Rule refused. *FERRIS t. PHELPS. [*24 Bail Special Bail Exception. After special bail is put in, the plaintiff must ex- cept to the bail, and cannot proceed on the bail- bond. O PECIAL bail was put in, in this cause, and O the plaintiff neglected to enter any excep- tion on the bailpiece, but brought an action on the bail-bond. A motion was now made to set aside the judgment on the bail-bond, on the ground that the plaintiff, by not excepting to the special bail, was precluded from an action on the bail- bond. Per Curiam. The plaintiff ought to have excepted to the special bail. Take your rule. Rule granted. SACKET, Demandant, LOTHROP, Tenant. Writ of right Return Default Ne recipiatur. If a writ of right be not returned on the quarto die post, and the tenant means to put the demand- ant out of court, he should enter a ne recipiatur. Citation Booth, 93. THE writ in this cause was not returned on the quarto die post, and the demandant ob- tained a rule, that the sheriff return the writ sedente curia, or show cause why an attach- ment should not issue against him. On the service of this rule, the writ was returned. Mr. Bogardus,forthe demandant, now moved that the tenant be called. Mr. S. Thompson, contra, contended, that the demandant, not having, on the quarto die post, obtained a day further, must be consid- ered as out of court; that the rule on the sheriff was a nullity, instead of which the de- mandant should have taken out a second sum- mons. He cited 1 Reeves, 119-121. Per Curiam. The tenant, if he meant to put the demandant out of court, should have en- tered a ne recipiatur on the quarto die post. As he has not done so in the present case, his neg- lect must be considered as a *waiver. [*25O By the rule requiring the sheriff to return the writ, sedente curia, the demandant is to be deemed as continuing in court from day to day during the term. (See Booth, 92.) So the tenant must be called. Per Curiam. Though the defendant was ' Rule granted. JOHNSON'S* CASES, 1. 1800 GOODRICH v. WALKER. 250 GOODRICH v. WALKER. 1. Release Delivery. 2. New Trial Charge on weight of evidence Right of Party. A formal delivery of a release is not essential; it is sufficient if such acts appear as showed an intention to deliver it. Where a judge charg-ed the jury, that in his opinion the weight of evidence was in favor of the defendant, and the jury found a verdict ac- cordingly, a new trial on account of the misdirec- tion of the judge was refused, the court being sat- isfied that the plaintiff ouarht not to recover. 'PHIS was an action of assumpsit, for work, JL labor and services. The defendant pleaded the general issue, and gave notice with his plea, that he would offer in evidence, on the trial of the cause, an instrument in writing, under the hand and seal of the plaintiff, bearing date the 24th day of May, 1796, whereby, in considera- tion of forty pounds to him in hand paid, by David Meachum and David Osborn, overseers of the church at New Lebanon, the plaintiff released and discharged the said overseers and community of the said church, jointly and severally, from any further charges and de- mands whatsoever; and that the defendant would also give in evidence that he was at that time a member of the said church, and one of the said community. The cause was tried at the sittings after January Term, 1799, at the city of Albany, before His Honor Mr. Chief Justice Lansing. On the trial, it appeared in evidence that the defendant, at the time the labor was performed for which the action was brought, was a mem- ber, and one of the principal directors of the church and community at New Lebanon, called the Society of Shaking Quakers; that the labor was performed for the common benefit of the said church and community: that the period of service was upwards of eight years, and during four or five years the labor was performed under the immediate direction of the defendant; that the plaintiff was nineteen 25 1*] years old when he entered *the society; that the property of the church, together with the product of the labor and profits of the members thereof, were, during the time the labor was performed, held, and afterwards continued to be held and enjoyed in common among them. After this evidence on the part of the plaint- iff, the defendant's counsel moved for .a non- suit, which was overruled by the judge. The defendant's counsel then produced the discharge set forth in the notice subjoined to the defendant's plea, as above mentioned. The plaintiff's counsel objected to the valid- ity of the discharge, if proved; which objec- tion was overruled by the court. To prove the execution of the discharge, the defendant offered one Joseph Markum as a witness. The plaintiff's counsel . objected to this wit- ness, on the ground of interest, and in support of the objection, proved, that at the time the labor and services were performed, Joseph Markum was a member of the church, and one of the community. The witness upon this executed to the society and to the defendant a NOTE. As to delivery. See note to Jackson v. Dunlap, ante 114. JOHNSON'S CASES, 1. general release, and the defendant executed to the witness a similar release, after which the judge permitted the witness to be sworn, who thereupon deposed, that he saw the plaintiff execute the discharge, by signing and putting something as a seat for "his deed; that David Meachum was present, and took it up in presence of the plaintiff, after the witness had attested it as a subscribing witness. That the plaintiff did not appear to be under any re- straint at the time of such execution, and that he expressed himself satisfied with the settle- ment; that he had seen the plaintiff the morn- ing of the day when the discharge was executed, and before its execution, walking in front of the house in which it was executed, apparently at his liberty. Upon this evidence, the dis- charge was read to the jury. *On the part of the plaintiff , Ezekiel [*252 Goodrich was produced as a witness, who tes- tified that in the winter of 1*97 and 1798, he, together with Elihu Goodrich, went, at the re- quest of the plaintiff, to confer with the Quak- ers at New Lebanon; that the plaintiff entered into a conversation with the defendant Meachum and Osborn, in the course of which the plaintiff alleged that he had been kept in a room all night, and until next day at noon; and that they had forced him to sign a release; that after some hesitation, one of them replied, that they had orders for what they had done from headquarters; and they had a right to do what they did. In this testimony Elihu Goodrich concurred. Samuel Chapman also testified that he heard some persons in a room talking to the plaintiff, and persuading him to settle, saying that they would not agree to his going away until he had settled. The defendant then produced Eleazer Grant, who deposed, that the plaintiff informed him, after he left the society, that he had settled with them; that he had got a horse, saddle, bridle, and some money; that the witness asked how it came about that he had settled so reasonably; to which the plaintiff answered, that it was because he could do no better. George Darrow also deposed that he lived about a mile from New Lebanon; that the morning after the plaintiff left the society, he had a conversation with him; that the plaintiff told him he had left the society, and in answer to the witness's inquiry whether they had set- tled with him, he said they had; that the wit- ness then inquired whether he had been in- timidated or compelled to settle, to which the plaintiff answered, no, that they had acted honorably, and settled without difficulty; that the reasons he had for making these inquiries, were some reports that the plaintiff had settled with them under constraint. Roswell Goodrich also deposed that he ac- cidentally met the plaintiff the same day the settlement was made; that the plaintiff said he had settled with David Meachum *and [*253 David Osborn, and that he had received more from them than he deserved, for he knew on what conditions he engaged with them; that three months afterwards he heard him again repeat that he was satisfied; and he then said, he had gone to the society without wages; that he was neither to have debt nor blame. The Chief Justice charged the jury, that in 815 253 SUPREME COURT, STATE OF NEW YORK. 1800 his opinion the weight of testimony on the sub- ject of the duress was in favor of the defend- ant; and that if the plaintiff was not under duress at the time he executed the discharge, they ought to find for the defendant. The jury found for the defendant, It was moved to set aside the verdict on the following grounds: 1. That the witness, Markum, was interested. 2. That the discharge or release was never delivered. 3. That the charge of the court on the evi- dence of duress was improper. Mr. Whiting for the plaintiff. Mr. Van VecJiten for the defendant. petency of Markum, as a witness, if any ex- isted, was removed by the mutual releases executed between him and the defendant. As to the second point. The discharge or release must be intended to have been well de- livered. Nothing to the contrary appears. A formal delivery is not essential, if there be any act evincing the intent. We also think, with the judge at the trial, that the weight of evidence was in favor of the defendant; and that the plaintiff ought not to recover. We are, therefore, of opinion that a new trial ought not to be granted. Rule refused. , Cited ln-3 Johns., 241 ; 4 Barb., 518 ; 1 Bedf 424 ; 2 Per Ou.nam. Every objection to the com- ' E. D. S., 311; 1 McLean, 323; 2 Wood. & M., 1&. 316 JOHNSON'S CASES, 1. [END OF JANUARY TERM.] CASES ARGUED AND DETERMINED SUPREME COURT OF JUDICATURE STATE OF NEW YORK, APRIL , IN" THE YKA.R 18OO. 255*] *BRANTINGHAM t. FAY. New Tried Nonsuit To Recover Nominal Damages. Where in an action of debt, for a penalty in a spe- cial agreement, though the court were of opinion that the plaintiff was entitled to a verdict, but no damages were shown, nor any rule by which the jury could ascertain the damages, they refused to set aside a nonsuit and grant a new trial, merely to give the plaintiff an opportunity to recover nominal damages. rPHIS was an action of debt, for 4,000, being J- the penalty of a certain agreement made between the plaintiff and defendant, bearing date the 23d May, 1795. The agreement, as set forth in the declaration, was as follows: ' ' Whereas the said Joseph Fay had received from the said Thomas H. Brantingham a deed, executed unto Oliver Phelps, Esq., of Suffleld, by the said Thomas H. Brantingham and Han- nah, his wife, for 26,814 acres of land, in the townships of New Huntingdon, Bolton, and Sterling, in the State of Vermont, bearing date the same day and year; the said Joseph did 256*] covenant and agree to forward *the same to the proper officers and cause the same to be recorded and returned to the said Thomas H. Brantingham, in New York, to- gether with the proper certificates necessary to show that the titles of the said lands were le- gally vested in the said Thomas H. Branting- ham, and that they were free and clear from all incumbrances, if on examination they should be found to be so; and that when such titles should be fully and satisfactorily ascer- tained, the said land, or so much of it as should appear to have a good title, as set forth in the said deed of conveyance, should be paid for at the rate of three shillings per acre. New York currency, in notes, bonds, or other just de- mands against the said Thomas H. Branting- ham, including 1,513 3s. 9d., which the said Thomas H. Brantingham had already received and acknowledged, on a contract for the afore- said lands; and that the said Joseph Fay would pay a judgment obtained against the said Thomas H. Brantingham, at the suit of JOHNSON'S CASES, 1. one Comfort Sands, for the sum of 1,200 and also two rotes of hand, made by the said Thomas H. Brantingham to James Roosevelt, amounting to 459, and other demands against the said Thomas H. Brantingham, and then due from him, sufficient to pay the amount of the said lands at the rate aforesaid, allowing for such bonds, notes, and other demands, twenty shillings in the pound, including prin- cipal and interest, and for which the said Joseph Fay was to receive an allowance or de- duction of five per cent., to be deducted from the sum which should appear due from the said lands, the said agreement to be carried in- to execution without delay ; and for the faith- ful performance of the said covenants and agreements, the said Joseph Fay did bind him- self to the said Thomas H. Brantingham, his heirs, executors, administrators and assigns, in the sum of 4,000, current money of the State of New York." The plaintiff averred that Fay received the deed or conveyance, so executed by Thomas H. Bran tingham*and Hannah, his wife, [*257 to the said Oliver Phelps, and assigned the fol- lowing breaches : " That the said Joseph Fay had not forward- ed the said deed to the proper officers, and caused the same to be recorded, and had not re- turned the said deed to the said Thomas H. Brantingham, without any unnecessary delay, nor caused the same to be returned; but that the said Joseph Fay had wholly neglected and refused to return the said deed of conveyance to the said Thomas H. Brantingham." The plaintiff further averred that although the title for the said lands was legally vested in him, and though the same were free and clear from all incumbrances; nevertheless the defendant did not, without unnecessary delay, return proper certificates necessary to show that the said title was legally vested in the plaintiff, and that the said land was free and clear from all incumbrances, but had wholly neglected and refused to return the said certifi- cates. And the plaintiff further averred that although the title for the said 26,814 acres of land was, at the time of the execution and de- 817 257 SUPREME COURT, STATE OF NEW YORK. 1800 livery of the said deed of conveyance to the de- fendant, for the said Oliver Phelps, lawfully vested in the plaintiff, and though the same was free and clear of all incumbrances, never- theless the defendant had not, without unneces- sary delay, paid for the same at the rate of three shillings per acre, New York currency, in the plaintiff's notes, bonds, or other just dV mands against the plaintiff, over and above the said sum of 1,513 3s. 9d., which, at the time of making the said covenant, was paid by the de- fendant to the plaintiff; but to pay for the same had wholly refused and neglected. And the plaintiff further averred that the said de- fendant did not, without unnecessary delay, pay to the said Comfort Sands, a judgment ob- tained by him against the plaintiff, amounting to 1,200, but wholly neglected and refused to pay the same. And the plaintiff further 12 08*] averred that the defendant did not pay,* without unnecessary delay, to the said James I. Roosevelt, the said sum of 459, in discharge of two notes from the said Thomas H. Brant- ingham to the said James I. Roosevelt, and then due, but wholly neglected and refused to pay the same to the said James I. Roosevelt, by reason of which, 1*] *manner as is before expressed, or un- less minutes be made of such mortgages in the town records, which minutes shall respectively contain the description and boundaries of the land mortgaged, the names of the mortgageors and mortgagees, the dates of the mortgages, the mortgage money, the times when payable, and when registered, or unless an attested copy of such attachments, and the officer's return thereof, be filed in the said town clerk's office." It was further* proved that conveyances for lands in Vermont are good against the grant- ors without being recorded; but the plaintiff did not show any conveyance of the lands in question to himself, and there were no mesne conveyances from the original grantees or pro- prietors on record. Phelps also testified that he had sold the lands conveyed to him as above mentioned, and that he had since discovered from the persons to whom he had sold the lands that the title of the plaintiff to a con- siderable part of said lands was defective, and that he (Phelps) had been called on to make good such defective titles. Upon this evidence the defendant moved for a nonsuit, and the judge being of opinion that the plaintiff was not entitled to recover, directed a nonsuit accordingly. Mr. Pendletan, for the plaintiff, at a former term, moved to set aside the nonsuit, and for a new trial, on the ground that if the plaintiff's title to the lands in question was not good, still the defendant had broken his covenant in delivering the deed to Phelps, which he had agreed, in that case, to return to the plaintiff; that bv the delivery of the deed to Phelps, the plaintiff was devested of whatever title he previously had, and ought, therefore, to re- cover the consideration money for which the lands were sold, and he would remain liable for any defect of title on the covenants and warranty contained in the deed to Phelps. He also argued that the conduct of the de- fendant was improper, in permitting the sale 262*] of the lands for taxes, "and that he thereby treated them as his own, and ought to be liable for their value. Mr. Ecertson, for the defendant, contended that by the spirit of the contract between the parties, the defendant was liable to pay the consideration money only, in case the plaintiff's title, on examination, should appear to be valid, and from the evidence it clearly appear- ed not to be valid; that the delivery of the deed to Phelps, although not strictly correct, was not a material fact, and could in no way prejudice the plaintiff who had no title; that for this cause, the plaintiff could, at the most, be entitled to receive nominal damages only, and the court would not, for that reason, set aside the nonsuit, and send back the cause for a new trial: neither could the sale of the lands JOHNSON'S CASES, 1. for taxes, which was permitted by the defend- ant in order to obtain a title, give any right to the plaintiff to recover at law, which he would not otherwise have by virtue of this contract. RADCLIFF, J. The deed or instrument on which this action is brought, is obscurely and inartificially expressed; but the intent of the parties, and the scope of their contract, I con- sider to have been that the defendant should pay for the lands in case the plaintiff appeared to have a good title, and not otherwise. The defendant, or Phelps, who was his principal, and whom he must be deemed to represent, did not choose to rely on the covenants or war- ranty contained in the plaintiff's deed, and for that reason stipulated to pay the consideration money only in case the title should be clearly ascertained to be valid. By the laws of Ver- mont, it appears that no title can be valid or secure unless the deeds, which are the evi- dence of such title, be regularly recorded in the town where the lands lie. Aware of this, the parties regulated their contract according- ly, and referred to the records of several towns, and to certificates to be there obtained, as the evidence by which its validity should be ascertained. When so ascertained, the de- fendant- agreed to pay the plaintiff for the lands. *It appeared in evidence that there [*263 were no mesne conveyances from the original proprietors of the lands in question on record, and, of course, there did not exist that evidence of title which the parties contemplated and the laws of Vermont required. There is proof that the defendant told Phelps that he had ex- amined, and believed the title to be good, ex- cept as to about 4,000 acres; but this informa- tion was not true in fact, and being founded in mistake, I think that it ought not to conclude him. It is also true that the defendant de- livered the deed to Phelps, which, by the agreement with the plaintiff, he was bound to return to him. This act was unauthorized, and strictlv in violation of his contract with the plaintiff, but I do not think that it ought to subject him to the rigorous consequence of paying the whole value of the lands. The plaintiff still can be no further damnified than it appears he had title to those lands; to that extent he ought to recover and no more. As between the plaintiff and the defendant the possession of the deed by the former could be of no use if he had no title; and if he had a title, it could be of no other use than to enable him to retain it until his money was paid. The delivery to Phelps might deprive him of that security, and also render him liable, in case of a defect of title, on the covenants and war- ranty contained in it. But in whatever man- ner he may be affected in the event by these covenants and the warranty, he has nof shown that he has in fact sustained any damages, and it would be too uncertain to allow him to pre- vail in this action, on the expectation merely of a future recover}' by Phelps. No rule of actual damages can be given in the present situation of things, nor until recovery be had: and I therefore think that the claim of the plaintiff and the responsibility of the defendant must still, under the existing circumstances, be substantially founded on the sufficiency of 319 368 SUPREME COURT, STATE OF NEW YORK. 1800 the plaintiff's title. No actual damages being shown, the plaintiff could be entitled to re- cover a nominal sum only, and although this 264*] may be strictly his *right, 1 do not think that we ought to direct a new trial for the sake of nominal damages merely. On the trial, the plaintiff offered to prove that the defendant declared that he had caused the lands to be sold for taxes, and bought them himself to secure the title, but not to de- feat the plaintiff's right; which evidence was overruled. It has been insisted that this evi- dence ought to have been admitted, and that the plaintiff was entitled to recover the value of the lands so purchased, after deducting the moneys paid by the defendant. Allowing the purchase to have been made in affirmance of the plajntiff's title, the defendant may be con- sidered as his trustee, but I think he can have no remedy against him at law, on the founda- tion of this contract. The purchase must be considered as a separate transaction, and dehora the contract. The contract was for a perfect and existing, not an imperfect or future title. A title subsequently acquired, cannot be with- in it, and, therefore, cannot be a basis for the present action ; and if the plaintiff be' entitled to a remedy on this ground, he must seek it in another mode. I am, therefore, of opinion that this evidence was properly refused, and that we ought not to award a new trial, for the purpose of nominal damages merely. KENT, J. , and BENSON, J. , Were of the same opinion. LANSING, C/t. J. A motion has been made to set aside the nonsuit granted in this cause. To determine on it the terms of the contract and the transactions in consequence of it, must be particularly considered. The contract states in substance 1. That the defendant had received a deed executed by the plaintiff and his wife to Oliver Phelps, for 26,814 acres of land in the State of Vermont. 2. The defendant agreed that he would have it recorded, and return it to the plaintiff with the proper certificate necessary to show that the title to the land was legally vested in the plaintiff, and that it was clear of incumbrances, 265*] *if on examination it should be found to be so. 3. That when such title was fully and satis- factorily ascertained, and said lands.or so much of them as the plaintiff should appear to have a good title to, should be paid for at the rate of three shillings her acre, by discharging certain demands which existed against the plaintiff, including 1,513 3s. 9d., which the plaintiff had already received and acknowl- edged on a contract for the same lands. . 4. That the defendant was to be allowed five per cent, for transacting the business. This contract obviously formed only a part of the engagements subsisting between the parties named in it. The other part is not brought into view, but sufficient appears to enable us to infer that the plaintiff and Phelps were the principals in it, and that the defendant was merely introduced as agent for one or both of the parties; and this receives some corrobora- 320 tion, for the circumstance of his being entitled to receive a commission for the service in which he was to be employed. The deed was executed by the plaintiff to Phelps, and I think this affords strong ground to infer that he was the person who made the payment of part of the consideration money, though the vague and indefinite terms in which the payment is mentioned does not positively asertain it. It is, however, certain that the plaintiff con- veyed the land in question to Phelps, and that he received a sum of money on account; and I can discover no circumstances in the case which will establish the fact, or even the pre- sumption that the defendant made this advance. If no such fact exists, the defendant was mere- ly intrusted with the deed to have it recorded, and to ascertain whether the title was clear and exempt from incumbrances; These objects being attained, he was to return it to the plaint- iff, with certain certificates of public officers, evidencing those facts and *then the [*266 plaintiff was to receive at the rate of three shillings per acre, in the mode stipulated, for the land for which a good title appeared. The defendant examined the records, had the deed recorded, and possessed himself of the certificate; he expressed some doubt as to the title to 4,000 acres, but supposed the title of the residue to be good, and thereupon received a deed from Phelps for the 4,000 acres, and delivered the deed executed by the plaintiff, which he had expressly stipulated to return to him, to Phelps, to whom he had previously sold the land described in it, at the rate of 3s. M. per acre. He gave Phelps a bond conditioned to save him harmless, in case the title to the whole or any part of the land should fail, and the plaintiff be unable to respond for the dam- ages; and from the evidence offered and over- ruled at the trial, which it is proper to consider as forming part of the plaintiff's case, the de- fendant confessed that he had caused part of the land to be sold for taxes, and became the purchaser himself. From this state of things it appears to me to- tally irrelevant to the issue between the parties to inquire whether the title to the land was valid or otherwise; this was to have been settled be- tween the plaintiff and Phelps. It is sufficient to entitle the plaintiff to recover to show that the contract entered into between him and the defendant was not complied with. It appears to me to have been grossly vio- lated, and that the subsequent transaction be- tween the defendant and Phelps was tiutlajide. The defendant had agreed to return the deed to the plaintiff; instead of this he delivered it to Phelps. It was stipulated that the plaintiff should re- ceive three shillings per acre. Instead of this the defendant makes a new sale to Phelps at 3s. 4(1., receives a title for 4,000 acres to himself, and, for aught that appears, pockets not only the additional 4d. per acre, but the balance of the consideration money, which was to be paid to the plaintiff. *The transaction appears mysterious; [*2O7 but as far as the inducements of the parties can be traced, it may in some measure be accounted for. Phelps, probably diffident of the responsi- bility of the plaintiff, was induced to give an JOHNSON'S CASES, 1. 1800 CORTES v. BILLINGS. 267 additional sum for the defendant's indemnifi- cation; and the acceptance of the deed for the 4,000 acres, and the receipt of the 4d. per acre, explains the motive by which the defendant was actuated. If the defendant afterwards purchased the lands in question for the taxes, it must have been in affirmance of the plaintiff's title; or if not so intended, his procuring them to be sold under that pretence was fraudulent and ought not to avail him. Besides, if the defendant ac- quired a good title by the sale for taxes, it must, from the situation in which he had placed him- self with Phelps, operate in affirmance of the title of Phelps; for the defendant had engaged to indemnify him, and it could answer none of his purposes to assert his title in consequence of his purchases, if he was subject to respond in damages on his contract. The defendant appears in this court in an unfavorable view. He undertakes to investigate the title for a reward; he asserts, contrary to his better judg- ment, if the evidence is to be relied on in its extent, that the title is good for 19,000 acres; avails himself of the knowledge he has acquired .at the expense of his confiding employers, to take the money from the one and the land from the other, if it be true that his last purchase was not for the benefit of Phelps. It was insisted that the plaintiff, to sustain this action, ought to show that his title to the lands was good; but it appears to me that even .as between the parties in this suit (supposing the defendant to be a principal), the manner in which the business was conducted would con- clude the defendant. After detailing the particular mode in which the defendant was to conduct his researches, and to procure the certificates necessary to show that the title of the lands was in the plaintiff, and that they were free from incumbrances, 2C8*] *the contract proceeds, and "when such titles are fully and satisfactorily ascertain- ed," then the amount of the said lands, or so much of them as it shall appear the plaintiff has title to, shall be paid for. If after the word "ascertained," the words "in manner aforesaid" had been added, it would have re- moved eveiy doubt of the construction; and yet the words are so placed in relation to those preceding, as strongly to convey the same sense, and to confine it to the manner of ascer- taining it, before detailed, as if it were pre- cisely limited by an express specification, The title was to be fully and satisfactorily ascertained by the defendant, and when he was satisfied, he was to return the deed with the certificates to the plaintiff, upon which the de- fendant was to receive the consideration money. A different construction that the proof of title was to be satisfactorily made in a court of justice would suppose the singular case of a deliberate contract for a litigation. It was, however, said, that even admitting the plaintiff's general right to recover, the con- tract furnished no measure of damages. That the consideration money was to be paid in the discharge of debts due from the plaintiff can offer no insurmountable difficulty; for as to him, they were worth their nominal value, as it extinguished so much of his debts. The loss the plaintiff has sustained is susceptible of being reduced to certainty by calculation, for .JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. it appears to me his damage sought to be meas- ured by the amount of the sum for which the plaintiff sold the land, with interest, deducting the 1,513 3*. dd., already paid. The objection that there is a variance between the contract set forth in the declaration and the one produced in evidence, I think cannot be supported. The description in the declaration of the evidences of the debts to be received in payment for the land, are such as the contract warrants. The contract mentions that the land is to be paid for "in Brantingham's notes, bonds, or other demands *against him,"[*26O and then proceeds, "including the 1,513 3s. 9d., which the said Brantingham has already received, &c. , a judgment in favor of Comfort Sands," and then enumerates the other securi- ties to be received; then follows the clause which is supposed to support the objection as to the variance, "and other demands which are now due, sufficient to pay the amount of the said lands," &c. The declaration states the sum of 1,513 3s. $d., as to be included in the payment, and adds, ' ' and that the said Joseph Fay would pay a judgment obtained against the said Thomas H. Brantingham, at the suit of one Comfort Sands," and describes the other securities correspondent with the description in the contract; after which we find the words, ' ' and other demands against the said Thomas H. Brantingham, and then due from him, sufficient to pay the amount of the said land." It is barely necessary to state the connection of the different expressions to show that the supposed variation is merely in the terms em- ployed; that the description of the contract in the declaration is substantially and strictly true, and that the construction that a double pay- ment was imposed on the defendant by the terms contained in the declaration is totally un- founded. I am, therefore, of opinion that the nonsuit ought to be set aside. LEWIS, J. , declared himself to \>e of the same opinion. Rule refused. Cited in 3 Johns., 240 ; 3 Hill, 136 ; 23 Barb., 555 ; 42 Barb., 230 ; 43 Barb.. 538. *CORTES . BILLINGS. [*27O Witness Competency Agent. The owner of a vessel who has overpaid money shipped in the vessel to the shipper, and been re-im- bursed the amount by the master, is a competent witness in an action brought by the master against the shipper, for the same money, though in the first instance, the owner is liable for the default of the master. An agent is a good witness, ex necessitate. THIS was an action for money had and received. Plea, the general issue. On the trial before Mr. Justice Radcliff, at the last No- vember Circuit in the city of New York, the plaintiff's counsel having opened the case, and staled the testimony of the witness, Hervey, as hereafter mentioned, the defendant's counsel objected to the admission of the witness on the ground of interest. The objection was over- ruled, and Hervey being sworn, testified, that 21 321 270 SUPREME COURT, STATE OF NEW YORK. 1800 about the beginning of June, 1796, the plaint- iff arrived at New York from New Orleans in a ship belonging to the witness and John Her- vey, of New York, merchants, of which the plaintiff was master; that the plaintiff brought with him upwards of $40,000 in cash, which had been shipped at New Orleans, and con- signed to different persons at New York; that the money was lodged in one of the b*anks by the witness, and his account credited for the amount; that the witness paid thereout from time to time, to different persons, who held bills of lading for the amount due to them, ac- cording to such bills; that $13,061.37 of the said moneys were shipped by the house of Sar- ping & Co., of New Orleans, of which house the defendant was a partner, and were con- signed to J. Thebaud, of New York; that one Longchamp, a clerk of Thebaud, soon after the arrival of the said ship, applied to the witness for the last mentioned sum, and also for $566.37, for which no bill of lading or other voucher was produced; that the witness offered to pay the sum for which bills of lading were shown, but refused to pay the said $566. 37, and Longchamp declined accepting the former sum; that soon after, on the same day, the defendant in person applied to the witness for both the said sums, and stated that he had brought the said $566.37 on board the ship for his private expenses, and that when going 271*] down the Mississippi from *New Or- leans, he delivered the same to the plaintiff from a fear that a search would be made at the mouth of the river for money, and that he took the plaintiff's receipt for the same, which receipt the witness understood he then had in New York, but could not readily find, and the defendant said he would produce it, or hold himself accountable for the amount; that in consequence of this representation, the witness, on the next day, being the 6th of June, paid to Longchamp, the clerk of Thebaud, the sums specified in the bills of lading, and also the said $566.37, and took a separate receipt for the latter sum, which receipt being called for by the defendant, was produced in evidence on the part of the plaintiff. , The witness also, on the 26th of June, re- ceived the freight for the sum last mentioned, and, by his clerk, gave a receipt therefor. The witness, Hervey, further deposed that during the above transaction, the 'plaintiff and defendant were both in New York, but that the witness did not inform the plaintiff of the payment of the said $566.37, nor of the re- ceipt of the freight for the same, and believed that he did not know of such payment ; that the money was received by Thebaud, as agent of the defendant, which agency and the re- ceipt of the money by the defendant were ad- mitted; that afterwards, when the plaintiff and witness settled the account of all the moneys brought in the ship, they discovered a deficiency corresponding with the sum in question ; that the plaintiff allowed the same in his account with the witness in order to re- imburse him, but at the same time denied the defendant's right thereto; that the defendant resides at New Orleans, and on his arrival at New York about eighteen months since, the plaintiff caused him to be arrested for the said $566.37; the witness further stated that he i 822 was at New Orleans in the month of May last, and saw the defendant there, and several times mentioned to him the subject of the plaintiff's receipt ; that the defendant still al- leged that he had such receipt, but did not produce it, and the witness further said that he had no interest in the event of the suit. *The plaintiff having rested his [ *272 cause, the defendant's counsel again objected to the competency of this witness, and on that ground moved for a nonsuit, which motion was overruled. On the part of the defendant, Longchamp- was then examined, who proved the same- facts mentioned by Hervey, as far as he is above stated to have been concerned in the transaction. A deposition of G. Dubuys was also read, who testified that he resided a't New Orleans in May, 1796; that the ship above- mentioned was there at that time, commanded by the plaintiff; that she sailed in the same month for New York, and the defendant was a passenger; that he saw a receipt given by the plaintiff to the defendant for $566.12, and the reason of taking such receipt was that the- defendant had, unexpectedly, received that sum at the moment of sailing, and it was- therefore not included in the bills of lading, and that the business was transacted in his counting-house. The witness, Hervey, was again called by the plaintiff, who further testified that it was- very difficult to bring money from New Orleans, it being against the laws of that country, and if detected, would subject the same to seizure. It was, therefore, usually done by delivering small parcels at a time and giving the shipper separate receipts, and when the whole was received on board, to sign a bill of lading for the total amount and take up the receipts. On this evidence it was submitted to the- jury to determine whether the plaintiff had ever received the sum in question, and if so,, whether from the nonproduction of the receipt, and the other circumstances, it was not to be presumed that the same had been included in the bills of lading. The jury found for the- plaintiff for $692.35 damages, being the amount of the sum claimed, including interest and deducting the freight paid for the same. On the part of the defendant, a motion was made for a new trial, on the argument of which the following points were raised : *1. Whether Hervey was a compe- [*273 tent witness. 2. Whether the action ought not to have been brought by the Herveys, who were the owners of the ship, instead of the plaintiff,, who was the master. 3. Whether the verdict ought not to be set aside, as being against evidence. Mr. Rigg* for the plaintiff. Mr. Evertson for the defendant. RADCLIFF, J., delivered the opinion of the court : The objections to the witness, Hervey, and to the propriety of the action in the name of the plaintiff, may be considered in one view. The argument of the defendant's counsel as to- both is founded on the idea that this witness, JOHNSON'S CASES, 1. 1800 BRANDT, EX DEM. VAN CORTLANDT ET AL., v. DYCKMAN. 273 as one of the owners of the ship, was liable to the defendant for all the moneys delivered to the master, and if there was an overpayment, that the owners were entitled to recover it, and not the plaintiff. It is true that the owners of a ship are generally liable to the shipper for the skill and fidelity of the master whom they employ. Whether this liability ought to be limited to the amount of the property for which bills of lading were actually given, as has been supposed by the counsel for the plaintiff, or would extend to all property re- ceived by the master, in the ordinary course of the trade in which he was engaged.it is unneces- sary to consider. Admitting the responsibility of the owners in the fullest latitude, they were in fact discharged from it in the present case by the actual payment of the sum in question to the defendant, who, if it were originally due, could not afterwards maintain an action against them for it. They were also discharged from their responsibility to the master by his re-imbursing the amount to the witness, and allowing it in the settlement of their account. The plaintiff might have disaffirmed the pay- ment, and the witness, Hervey, would then have been compelled to seek his remedy against the defendant. But the plaintiff appears to have considered Hervey for this purpose as acting in the capacity of his agent, and having 274*] allowed the *payment, he thereby discharged him from all responsibility, and from all interest, either as a witness or a party. It follows that if there was an overpayment, it became so much money received by the de- fendant to the plaintiff's use. Allowing the competency of Hervey as a witness, and that the action was rightly brought by the plaintiff, we think the evi- dence was sufficient to support the verdict. No part of the conduct of the plaintiff can be construed into an admission that the money in question was due to the defendant. On the contrary, considering that the defendant al- leged that he had a receipt for the money in his possession, and that he did not produce it, although he had ample opportunities for that purpose, nor pretended that it was lost ; con- sidering also that the account of the transaction at New Orleans, as given by his witness Du- buys, differs essentially from the account given by himself to Hervey, and that it is probable from the manner in which money is usually shipped from New Orleans, the sum in ques- tion, if received by the plaintiff, was included in the bill of lading, we think the jury were justified in the verdict they found, and that it is consistent with, rather than against the weight of evidence. Rule refused. 275*] *BRANT, ex dem., VAN CORTLANDT ET AL., vs. DYCKMAN. Witness Competency Tenant in Possession. In an action of ejectment, it was held that a per- son cannot be a witness to show that he was the tenant in possession, and not the defendant. JOHNSON'S CASES, 1. THIS was an action of ejectment, tried be- fore Mr. Justice Benson, at the last July Circuit, in the County of Westchester. The plaintiff having proved his title, gave evidence to show the defendant in possession of the premises in question, and there rested his cause. The defendant insisted that he was not in possession of the premises at the time when the action was commenced, and called one Vredenbergh as a witness, to prove that he ( Vredenbergh ), at the commencement of the suit, was, and then still continued to be the real tenant in possession, and not the de- fendant. The plaintiff's counsel objected to hit being received as a witness, because his testimony went to protect his own possession : The judge was of that opinion, and refused to permit the witness to be sworn. A motion was made for a new trial, on the ground that the witness was competent, and ought to have been received. Per Curiam. We think that Vredenbergh was not a competent witness, and was prop- erly excluded. If he was in possession, he had an immediate interest to protect that pos- session, and prevent a recovery, and if he was not, the object of producing him was im- proper, and ought not to succeed. Whether this be considered as an interest in the event of the suit, or in the question between the parties merely, it is one of those cases in which the reason and policy of the law ought to exclude a witness. His interest on the question of possession is almost the same as that of the de- fendant himself, and from the nature of the fact, there can be no inconvenience in requir- ing other proof, which it must always be in the power of the party to produce. Rule refused. Distinguished 6 Cow., 249. Cited in 12 Johns., 247 ; 8 Cow., 294. *PLATT [*276 ROBINS AND SWARTWOUT, Administra- tors of M. SMITH. 1. Evidence Plene Administravit Burden of Proof. 2. Id.DevaMavitFi. fa.Nutta bona. 3. Executor Devastacit Defense in First Suit. On a plea of plene administravit, the onus pro- bandi lies on the defendant. A former judgment against executors, and a ft. fa. returned nuUa bona, are conclusive evidence of a deoastaott. The execu- tor must defend himself in the first suit, or he will be precluded afterwards from saying he had no assets. Citations 3 Bacon Abr., 80, rev. ed.; 2 Com. Dig., 255, 256, tit. Admr., [I, 31; Noy, 7; 1 Salk., 310; Cro. Car., 527, 519; Cro. Eliz.,859; 5 Co., 32; 3. Salk., 310 ; 1 Ld. Ravm., 589 ; 3 Term R., 690 ; 1 Atk., 294 : 3 Term, (585 ; 1 W ils., 358. 328 276 SUPREME COURT, STATE OF NEW YORK. 1800 'S was an action of debt against the de- JL fendants, suggesting a devastavit by them, as the administrators of M. Smith, deceased. The declaration stated a judgment recovered by the plaintiff against the defendants, as such administrators, by default, upon a scire facias issued upon a former judgment obtained against the intestate, in his lifetime, that a writ of scire facias had issued on the said judg- ment against these defendants, directed to the sheriff of New York, in which county the venue was laid, commanding him to levy the damages recovered of the goods and chattels of the intestate in the hands of the defendants to be administered, and that the said writ was re- turned nutta, bona. The declaration also al- leged that divers goods and chattels, which were of the intestate to the amount of the dam- ages recovered, had come to the hands of the defendants as administrators as aforesaid, which they had "sold, eloigned, wasted, converted and disposed of to their own use," by which an action had accrued to the plaintiff, to demand and have the said damages of the defendants, &c. The defendants pleaded, 1. Plene administramt, except as to the sum of $50, to which amount they admitted assets. 2. That the defendants had not sold, eloign- ed, wasted, converted or disposed of, to their own use, any of the goods and chattels which were of the intestate, &c. The plaintiff replied, and took issue on both pleas. On the trial, the plaintiff gave in evidence the judgment recovered against the defendants on the scire facias, the writ of fieri facias issued thereon, and the sheriff's return thereto of nul- la bona, and there rested. The defendants offered no proof, and a ver- dict was taken for the plaintiff. 277*] *A motion was made for a new trial, on the general ground that it was competent for the defendant, in this action, to deny the devastavil, and incumbent on the plaintiff to prove it by other evidence. Mr. Boyd for the plaintiff. Mr. Burr for the defendants. RADCLIFF, J., delivered the opinion of the court: 1. If the plea of plene administramt was properly pleaded in this action, the onus pro- bandi lay on the defendants. It is an affirma- tive plea, and it was incumbent on them to maintain it, which they might have done, by showing that they had fully administered, ac- cording to the inventory which they were bound to make when they assumed the admin- istration. (3 Bac. Ab., 80, new ed.) 2. According to the ancient law, different modes of proceeding appear to have prevailed, At one period it was held that a fieri facias quare executionem non did not lie against an executor or administrator, without a devastavit previously returned or found. (Com. Dig., 255, 256, tit. Administrator [I. 3], Noy, 7.) And the sheriff might return a derastamt, but ne did so at his peril. (1 Salk.. 310.) Ip or- der to protect him against this peril, he might return nulla bona merely, upon which the 324 plaintiff, by a suggestion on the roll, called a testatum, might issue a writ of inquiry to the sheriff, and if a devastarit was found by the inquisition, the plaintiff might then have a scire facias quare executionem non de bonis pro- priis, against the executor or administrator, and the latter might plead and traverse the in- quisition. (Com. Dig., 255, 256, ut supra; Cro. Car., 527; Cro. Eliz., 859.) And if the traverse was found against him, the judgment was then de bonis propriis. (Cro. Car., 519.) But there could be no scire facias against an executor or administrator, on the bare sugges- tion of a devastavit, which was necessary to be returned by the sheriff, or found by an inqui- sition. (Com. Dig., 255, 256, ut supra.) At another period, it was held that if nutta bona was returned, a special fieri facias should go to the sheriff quod de bonis testatoris, &c., et si constare polerit quod detastavit, tune de bonis propriis. (5 Co. 32.) And a writ of in- quiry to the sheriff was resolved to be improper, because the *sheriff, on taking an in- [*278 quest, would not be liable for false return, nor the jury to an attaint, being merely an inquest of office. The principle which has since been settled, and which I think decides the present case, is, that if the party does not avail himself of the opportunity of pleading a matter in bar to the original action, he cannot afterwards plead it in another action, founded on a judgment obtained in the first. This was determined in the case of Rock v. Leighton (Salk., 310; 1 LordRaym., 589; S. C., 3 Term Rep., 690), by Lord Holt, and it was held that the execu- tor was estopped by suffering judgment to pass against him in such action, and the sher- iff justified in returning a devastarit. A decis- ion to the same effect was made by Lord Hardwicke (1 Atk., 294), and another by Lord Kenyon and the whole court of K. B". (3 Term Rep., 685.) In delivering the opinion of the court in the latter case, Lord Kenyon considered the rule inconsistent with the form of the judgment against an executor or admin- istrator, and with the apparent equity of the case, but the decision of Lord Holt was deemed to have settled the law, since which the determinations have been uniform on the subject. In the cases which have been mentioned, a derastamt was actually returned. In the case before us, the return of the sheriff was nutta bona merely. This difference, however, does not affect the application of the rule. The principle in both cases is the same, that the executor or administrator, by suffering a judgment by default in the first action against him has admitted assets, and is afterwards precluded from denying it. It is the judg- ment in that action which concludes him, and to this effect is the case of Skelton v. Hatrling (1 Wils., 258). I am therefore of the opinion that the plaint- iff is entitled to judgment, and this is the opinion of the court. Judgment for the plaintiff. Cited in 14 Johns., 449; 4 Cow., 448; 7 Cow., 706 ; 3 Wend., 308 ; 4 Wend., 228. JOHNSON'S CASES, 1. 1800 VAN RENSSELAER v. DOLE. 279 279*] *VAN RENSSELAER v. DOLE Slander Actionable Words Particular Trans- action. Where words otherwise actionable, are explained at the time by a reference to a known and particu- lar transaction, they are to be construed accordingly; and being: so explained, they were held not actiona- ble. Where a verdict is found against the charge of the judgre, on granting a new trial, the costs are to abide the event of the suit. was an action of slander. The decla- J. ration charged the defendant with speak- ing of the plaintiff and others, the following words: " John Keating is as damned a rascal as ever lived, and all who joined his party and the procession on the 4th July (meaning the said John Van Rensselaer and the party and procession, in which the said John Keating acted as captain on the said 4th day of July) are a set of blackhearted highwaymen, rob- bers, and murderers." The words were dif- ferently charged, with some additional ex- pressions, in the other counts, but were in substance the same. Plea, the general issue. The cause was tried before Mr. Justice Ben- son, at the last March sittings, in the city of Albany. The words charged were proved to have been spoken by the defendant. On the part of the defendant, it appeared that on the day previous to the speaking of the words there had been a public procession to a church in Lansingburgh, where the par- ties resided; that Keating commanded an ar- tillery company, which formed part of the procession, attended with music; that a Mr. Bird claimed one of the instruments of music, a bass viol, and went to the church to demand, or take it, but it was refused to be delivered, and retained by force; that upon this, an af- fray ensued, in which Mr. Bird received a dangerous wound. It was proved that the conversation, in which the words were spoken, was understood by the witnesses to relate to the transactions of the preceding day, and that the terms "highwayman, robbers, and murderers," were used in reference to the treatment of Mr. Bird in withholding the bass viol, and in stabbing him. The judge was of the opinion that the words being spoken in relation to the transactions of the preceding day, and so understood, were thereby explained, and on that account not actionable. The jury, nevertheless, found a 28O*] *verdict for the plaintiff, for $50 dam- ages and 6 cents costs. The defendant at this term, moved for a new trial, on the ground that the verdict was con- trary to law and the evidence. NOTE. Words, othencise actionable, may be ex- plained by reference to a particular transaction to which they are known by the listeners to refer. The burden of proof is on the defendant, however, to show that they were known to refer to such transaction. Hayes v. Ball, 72 N. Y., 418 ; Thompson v. Bernard, 1 Camp., 48 ; Cristie v. Cowell, Peake, 4 ; Hankinson v. Bilby, 2 C. & K., 440; Norton v. Ladd, 5 N. H., 209 ; Williams v. Cawley, 18 Ala., 206 ; Quinn v. O'Gard, 2 E. D. S., 388. JOHSSON'S CASES, 1. Mr. Woodworth for the plaintiff. Mr. Van Vechten for the defendant. Per Curiam. We agree in opinion with the judge at the trial. The words spoken by the defendant were clearly understood to apply to the transactions of the preceding day, and these were known not to amount to the charge which the words would otherwise import. Let the verdict, therefore, be set aside; and there being no question upon the evidence, the finding of the jury must be considered as contrary to law, and it is therefore ordered that the costs abide the event of the suit. Rule granted. Distinguished 7 Wend., 177. Cited in-12 Johns.. 240 ; 26 Wend., 304 ; 72 N. Y., 422 ; 6 Barb., 47 ; 3 Rob., 290. ALLARD v. MOUCHON. Reference Report set aside Defective Infor- mation. Where the facts in the case were various and in- tricate, and the matters involved in doubt and ob- scurity, a report of referees was set aside in order to let in new light, and to have the merits re-examined. rpHIS case had been submitted to referees, who -L reported in favor of the defendant. A motion was now made to set aside the re- port on the ground of mistake of the referees as to- the principal facts in evidence, and the law arising upon them. The case presented a mass of testimony, which was discussed at much length, but is unnecessary to be detailed here, in regard to the ground on which the opinion of the court was founded. Per Curiam. The facts in this case are in- tricate, and there exists so much doubt and ob- scurity on the subject, that there is reason to apprehend that the referees did not possess all the lights which may now be afforded them, and which may lead to a more satisfactory re- sult. We therefore think the case ought to be reviewed, and direct that the report be set aside, in order to re-examine the merits. Rule granted. Cited in 17 How. Pr., 406. *VAN ALEN v. ROGERS. [*281 1. Ejectment Mesne Profits. 2. Id. Id. Right of Possession. 3. Id. Time of Demise. 4. Id. Mesne Pi'ofits Judgment for Damages and Costs. A recovery of nominal damages in ejectment is no bar to a subsequent action for mesne profits. The entry of aremittiturdamnaon the record in eject- ment is matter of form merely, and if no rcmittitur is entered, and the plaintiff enter judgment for the damages and costs, it will not bar the action for mesne profits, to which the plaintiff is entitled from the time of the demise laid in the declaration in ejectment. If the tenant has made improvements on land, under a contract with the owner, he will 325 281 SUPREME COURT, STATE OP NEW YORK. 1800 not be allowed for them, in an action of ejectment brought by a devisee, but must seek his compensa- tion from the personal representatives of the de- visor. THIS was an action of trespass, brought for the recovery of the mesne profits of a lot of land, with a storehouse and other buildings thereon, situate in the County of Columbia. The cause was tried before Mr. Justice Lewis, at a circuit held in the County of Columbia, on the 30th October, 1799. The plea was not guilty, with a notice subjoined to the following effect: "That in support of the plea, the de- fendant, upon the trial, would give in evidence that the plaintiff derived title to the premises from one Lowrens Van Alen, deceased, and as a devisee under the last will and testament of the said Lowrens, who died in the month of May, 1795, and that the defendant has occupied the premises with, and under one Alexander McMechan, his copartner in trade, for the whole space of time mentioned in the declaration. And further, that the said Alexander Mc- Mechan entered by permission and license, under one John C. Holland, the son-in-law and agent of the said Lowrens Van Alen, deceased, who was duly authorized by the said Lowrens Van Alen, in his lifetime, to grant such license and permission; and that the said Alexander McMechan paid, before the commencement of the present action, and before the commence- ment of the action of ejectment, on which the present action is founded, for the use and oc- cupation of the said premises, and in full satis- faction of the mesne profits in the declaration mentioned, to the said John C. Holland, the son-in-law, agent and attorney of the said Low- rens Van Alen, the sum of $375, which, by the said John C. Holland, the son-in-law, agent and attorney as aforesaid, was accepted as such satisfaction; and also, that the said Alexander McMechan, by agreement with the said John J3. Holland, and with the knowledge, acquies- cence and permission of the said Lowrens Van Alen, in his lifetime, did erect and build a store- 282*] house and barn, and *make other last- ing and valuable improvements upon the said )remises, which are now held and enjoyed by the plaintiff, as the devisee of the said Lowrens Van Alen." The evidence produced on the part of the plaintiff was an exemplification of the record of a recovery in ejectment brought in the name of James Jackson, on the demise of the present plaintiff, against the present defendant, whicli demise was laid on the 1st June, 1795, and also an exmplification of a writ of possession issued upon the said judgment, and containing a fieri facias for the damages and costs found by the jury, with the costs of increase, and proof of the due execu- tion of the writ; and also parol proof that the defendant had occupied the premises for the space of three or four years subsequent to that period ; that the rent of the said store at present was of the value of $100 per annum, upon whicli the plaintiff rested his cause. The counsel for the defendant objected that this evidence did not maintain the plaintiff's action; because, it appeared from the record produced by the plaintiff that there was no re- mittitur damna contained therein ; but on the contrary, that the plaintiff had taken judgment 326 and execution for the damages and costs found by the jury, in the action of ejectment. The judge overruled the objection, but re- served the question. The defendant then offered to prove the sev- eral matters contained in the notice, as consti- tuting a defence in this action. The plaintiff objected that this defence was incompetent, and ought not to be admitted. The judge being of that opinion, the evidence was rejected, and a verdict was found for the plaintiff for $350 damages and 6 cents costs. A motion was made for a new trial, on two grounds: 1. That the plaintiff having taken judgment in the action of ejectment, for the damages and costs found by the jury, instead of entering a remiltitur damna,, was thereby precluded from a further recovery of damages in this action. *2. That the facts contained in the [*283 notice and offered to be proved on the trial, amounted to a competent defence in this action, and ought to have been received. Mr. Spencer, for the plaintiff. Mr. Van Vechten for the defendant. Per Curtain. The first objection to the plaint- iff's recovery rests on a matter of form, arising from the fictitious proceedings in ejectment. That action, in practice, is confined to the trial of the title only. The damages are nominal, and are not given in satisfaction of the mesne profits which have long been the subject of a distinct action. They are necessary only to entitle the plaintiff to recover costs, and cer- tainly cannot preclude him from a recovery of the mesne profits, any more than the entry of a remittitur upon a judgment by default against the casual ejector. The latter is an express re- lease of the damages upon record, and the for- mer is such by inference only. Both are forms, and do not affect the substantial rights of the parties. As to the second point, the judgment in ejectment is conclusive of the right of posses- sion, and of the title to the mesne profits from the time of the demise laid in the declaration. That time must always be laid at, or subse- quent to the period when the plaintiff's right accrued. If laid before, he would fail in the ejectment. By the recovery in that action, the right to the mesne profits is, therefore, es- tablished from the time of the demise, and the defendant cannot again in this action dispute it. If permitted, it would always lead to a sec- ond trial of the merits, already determined in the ejectment, and in a great degree render that action nugatory. The buildings and improvements (if any) were made antecedent to the time when the plaintiff's title accrued, and are pretended to have been made in pursuance of a contract with Lowrens Van Alen, or his agent. If the defendant is entitled to compensation for these improvements, he must seek it from the per- sonal representatives of Lowrens Van Alen, and not from the plaintiff. His right under the contract (if any existed) with Lowrens *Van Alen terminated at his death, [*284 and he cannot charge the plaintiff, a devisee, with the injury or damage sustained in conse- quence of it. JOHNSON'S CASES. 1. 1800 JACKSON, EX DEM. JONES, v. STRIKER. 284 We are, therefore, of opinion that the plaint- iff is entitled to judgment. Rule refused. Cited in 3 Johns., 482 ; 4 Cow., 171 ; 24 Wend., 445 ; 4 :Sand., 487. See 5 Cow., 264. JACKSON, ex dem. JONES, . STRIKER. 1. Sheriff's Deed Easement Stay Descrip- tion. 2. Id. Id. Subsequent Deed. 8. Id. Ascertained Property. A sheriff's deed for certain lands sold under an ex- ecution, and described by metes and bounds, to- gether with "all ways, passages, easements," &c., does not include land held by a distinct title, though .adjoining the premises, and formerly purchased and used as a road for the same, when it was not included in the description of the premises. A subsequent deed by the sheriff for the road, founded on the an- tecedent execution and sale, will not pass the land, unless included under the description of the prem- ises sold and conveyed by the first deed. The au- thority of the sheriff, in relation to the property, -ceased on the return of the execution satisfied. Citations 1 Vent., 228 b; Co., 18 a; 1 Leb., 151; 1 Roll., 329, pi. 45 : 1 Burr., 60 ; Litt., s. 169 ; Salk., 467 ; Com. Rep., c. 212; Co. Litt., 212 b; 6 Mod., 1; Cro. -Jac., 121 ; Barn. Ch. Rep., 111. THIS was an action of ejectment, brought to recover the possession of a road through a farm, owned by the defendant, in the seventh ward of the city of New York. The cause was tried before Mr. Justice Kent, t a circuit court held in the city of New York, in March, 1799. It was proved that in October, 1764, one Humphrey Jones being seized of the farm ad- joining the lands of one C. W. Apthorp, pur- chased from him the road in question, being 16 feet wide, leading from the farm, through the lands of Apthorp, to the Hudson River, and which in the deed from Apthorp to Jones is described by metes and bounds. A record of a deed was also produced from Apthorp to Garret Striker, the father of the defendant, dated the 8th August, 1764, for land compre- hending the road in question, with the excep- tion of a road or passage from the river to the land of Jones, and mentioned as having been conveyed to him, by lease and release the 3d or 4th August, 1764. The road was seldom used by Jones, and only for the transportation of manure from the river to the farm, and the last time he so used it was in 1776; and it ap- peared that in 1786 or 1787, Nicholas Jones, the son and heir of Humphrey Jones, sent his 285*] wagon along *the road to the river. 'The road was never inclosed, and Striker used to cultivate it. It also appeared, that the plaintiff's title, .among other things, depended on a deed ex- ecuted by M. Willett, formerly sheriff of New York, to the lessor, in consequence of a sale made by him under two judgments against N. Jones, one of which was obtained in the Mayor's Court, and the other in this court. The deed was dated the 28d February, 1786, NOTE. Sheriff's sale. Compare above case with Carpenter v. Cameron, 7 Watts. (Pa.), 51 ; Sheldon v. Soper, 14 Johns., 352 ; Jackson v. Hathaway, 15 Johns., 447 ; Bay v. Gilli- iand, 1 Cow., 220; De Riemer v. Cantillon, 4 Johns. Ch., 85. .JOHNSON'S CASES, 1. and recited the judgments, the executions thereon, the seizure by the sheriff, and the sale of the real estate of the said N. Jones, and con- veyed the same for a valuable consideration, by metes and bounds, to the lessor of the plaint- iff, "together with all ways, passages, paths, easements," &c., to the same belonging or ap- pertaining; but does not by any description of the premises, include the road in question. It was afterwards discovered that the sheriff's deed did not include the road, and the lessor, on giving the sheriff an indemnity for the act, obtained from him a new deed, including the road, by a particular description. This second deed professed to be founded on the former sale, under the same judgments and execu- tions, and was executed the 10th August, 1798, more than twelve years subsequent to the sale, and without any new consideration. The sheriff was sworn as a witness for the plaintiff, and in his testimony said that he in- tended to convey all the real estate of N. Jones at the time of the sale; but that the road in question was not then known to him. A verdict was found for the plaintiff, subject to the opinion of the court on the whole case. Messrs. D. A. Ogden and Harison for the plaintiff. Mr. Riggs for the defendant. RADCLIFF, J. The title of N. Jones to the road in question was not a mere right of way, capable of being conveyed by the general terms expressed in the first deed. The ways, paths, and easements therein mentioned, were incorporeal hereditaments only, and appurte- nant to the thing granted, and cannot be con- strued to comprehend a different *par- [*28(\ eel of land purchased and held by a distinct^ title, though appropriated to the use of a way. The first deed of the sheriff, therefore, did not convey the road to the lessor of the plaintiff. I think it unnecessary to decide whether a deed from the sheriff was essential to perfect the title of the lessor. It appears from the testimony of the sheriff that the road in ques- tion was not, in fact, sold by him. He did not know that it existed. It is true that he intend- ed to sell all the real estate of N. Jones, but that was not sufficient, without an actual sale, and without designating the property, so that purchasers might know for what to bid. A different mode of proceeding at sheriff's sales would be too uncertain, and liable to great abuse, and could answer no valuable purpose to any creditor. If the property be unknown, it may as easily be ascertained before as after a sale, and to require it to be identified, imposes no additional hardship on any creditor. The road in the present case, not being, in fact, sold by the sheriff in the first instance, he :iad no power to convey it by the second deed. His authority ceased with the execution of his writ which was complete, and he could not, by the second deed, give a right which was not created by the sale. The second deed was wholly unauthorized, without considera- tion, and void. For these reasons, without touching the other points made in the case, I think the ver- dict ought to be set aside, and a new trial awarded. 327 286 SUPREME COURT, STATE OF NEW YORK. 1800 KENT, J. I am of the same opinion. The premises certainly did not pass by the first deed; for the lands therein describea and con- veyed are accurately ascertained, by metes and bounds, and the premises are not included; and being a corporeal, as contradistinguished from an incorporeal hereditament, the road could not pass by any of the general and usual words thrown in, at the end of the metes or bounds. The question then is, can a sheriff, after a sale duly made, and after a deed executed with 287*] the requisite *formalities, and an ac- ceptance of it by the grantee, and the execution returned and satisfied, be permitted to aver against his own deed, and substantially to vary, and enlarge it by a subsequent conveyance V I consider his whole authority as at an end, after the sale and consequent satisfaction of the party. It appears to me that it would be of dangerous consequence to allow a party, after a long acquiescence in a sale, to come forward and cover a claim, not known or declared at the time, by a new and secret negotiation with the sheriff. The purchaser buys at his peril. Nothing ought to pass at a public sale but what was then known and promulgated. I adopt this general and salutary principal as requisite to guard against fraud, and to preserve integrity and fairness at public auctions, that no property can pass at a sheriff's sale but what was at the time ascertained and declared. BENSON, J., and LANSING, Ch. J., were also of the same opinion. LEWIS, J. The following questions arise in this case: 1. Was the deed from Apthorp to Humphrey Jones, of the 12th of October, 1764, admissible in evidence, as forming a link in the chain of the plaintiff's title, after he had produced the record of the deed to Striker, referring to the lease and release of August, 1764, without producing such lease and release, or accounting for them ? 2. Ought not the plaintiffs to have produced the record of the judgment and execution of the Mayor's Court? 3. Was there not a disseisin of the road at the time of the levy by the sheriff? 4. Did the road pass to the lessor of the plaintiff by either of the deeds from the sheriff, or by any other means? 1. With respect to the first question, I think the deed from Apthorp to Jones of the 12th of October, 1764, was properly admitted in evi- dence, and as, at present advised, I should also have admitted the evidence offered by the plaintiff, tending to show a probable mistake 288*] in the date fof the deed, in order to have aided the jury in what I consider the material inquiry, as far as concerns the deeds, whether the exception in Striker's conveyance, and the grant to Jones, relate to the identical subject matter. Whether this was the deed referred to, or whether there had been others, which might have been destroyed or cancelled, upon a new deed being given by way of further assurance, or otherwise, was a question of fact, upon which the jury having decided, though without all the light they might have had on the subject, I can see no sufficient reason for arraigning their decision. 328 2. Upon the second question, I am of opinion that the law is with the plaintiff, and that it was sufficient to produce the record of the one judgment, and the execution thereon. The production of these documents was for the pur- pose of showing a legal right acquired, and the sheriff's consequent authority to sell. Now, it is a rule of law that where a man has two> authorities to do an act, he cannot use both simvl and semel. , and if he executes one, the other is void. This rule would appear to apply forcibly to the case of writs of execution. The sheriff cannot sell upon both, where one has a priority; because the proceeds may be insuffi- cient to satisfy both, and he cannot apportion. In such case, where the property to be levied on is an entirety, though a levy may be made under each, he must sell on the first execution only, and that being satisfied, the surplus, if any, will go to the satisfaction of the other. Nor is he bound to declare previously under which authority he sells, because the writ of execution, which is his warrant, does not specify the time of the judgment, or of its being docketed, which in the present instance was equally important. But should this rule not apply to the case of a sheriff in its full ex- tent, yet it must be sufficient, for the execution of a single power, to show a single authority. The recital of the two judgments in the sheriff's deed, in my opinion, does'not alter the case, for as in the execution of a power by deed, it is not necessary to refer to the* authority, [*28J> when the deed would have no operation, but in the execution of such power, such a reference would be surplusage, particularly where two authorities are referred to, and one only is sufficient and proper for the purpose. And we may here apply the maxim, quando non valet quod ago ut ago, valet quantum vaUre potent. (1 Vent., 228 b; Co., 18 a; 1 Lev., 151; 1 Rol. r 329, pi. 45.) 3. The question as to disseisin, was contend- ed, on the part of the defendant, to be a ques- tion of law, and therefore improperly sub- mitted to the jury. In the case of Taylor, ex dem. Atkins, v. Horde (1 Burr., 60), it is said by Lord Mansfield, in giving the opinion of the court, to be a question of fact. With us it is emphatically so ; for being stripped of all its feudal relations, by the nature of our tenures, it is but another term for a dispossession of a freehold interest, which must be a simple question of fact. It was therefore properly submitted to the jury, and the only question for the court is, whether they decided it against evidence. I think they did not; for it is fairly inferable from the evidence that Striker's use of the soil of the road was by permission of Jones, and not inconsistent with the use that the latter occasionally made of it. Nor can anything be inferred from its not having been visible to the witnesses examined on that point; this was an unavoidable consequence of the little use Jones made of it, and the culti- vation of it by Striker. The inability of Nicholas to locate it probably arose from the same cause. But as he knew the place of be- ginning, and as its courses and distances are given by the deed, it may easily be ascertained by a survey, and the sheriff, in case of a re- covery, be thereby enabled to give possession I according to the deed. JOHNSON'S CASES, 1- 1800 JACKSON, EX DEM. JONES, v. STRIKER. 289 4. The fourth and last question involves several important considerations. First, by what act of the sheriff is his power executed? Is it by the sale, or must it be by deed? 29O*j *It is a well established rule of law that a purchaser under a nude power to sell, is in, under the authority creating that power, and that therefore the execution of that power may be without deed, where it is not expressly required, for the interest arises out of the estate. This was law as early as the days of Littleton, who in his 169th sec., speaking of devises by custom, as he wrote long prior to the statute of wills, says that executors under a power to sell may sell and make an estate by deed or without deed. In Combe's case (9 Rep.) it is resolved that where executors sell under a power, though they do it in their own names, this is of necessity, yet the vendee is in, under the devisor. There were cases prior to the statute of j frauds. It may therefore be necessary to ex- j amine whether that statute has made any dif- \ ference in the law on the subject. Naked powers are neither within the letter nor the spirit of the 9th section, for the person execut- ing such power neither makes nor creates an estate. If the case of a sheriff's sale falls within any clause of the act, it must be the 10th section, by which assignments, grants and surrenders of estate, by act and operation of law, are equivalent to those by deed or writ- ing. The statute, then, has not altered the law ; on the contrary, in a sale under a judg- ment, it confirms it. That it has not been cosidered in England, as touching the general principle, appears from the cases of Saunders v. Owen (Salk., 467) and Bayley v. Wurburton (Comyn's Rep., by Rose, case 212). In the first of these cases it was resolved that a power to an executor to sell may be executed without deed, for that whatever is to take effect out of a power or authority, is good without a deed. In the second, it was held that leases for lives made by a, feme covert under a power, were good without a fine, for that the lessee derived no estate from the lessor, but from the source from whence the authority sprung. I have met with no case contradicting this law, and unless some positive regulation can be shown that renders it necessary that a sheriff 20 1*] should *execute his authority by deed, I must hold the sale to be a complete execution, and the deed nothing more than written evi- dence of the fact, which may also be proved by parol. This idea is strengthened, if not ab- solutely confirmed, by a recurrence to the authority under which Nicholas Jones's prop- erty was sold. The words of the statute (5 Geo. II., ch. 7) are, that real estates in the plantations may, for the satisfaction of debts, be seized, extended, sold, or disposed of, in like manner as personal estates. If, then, the sale was a complete execution of the sheriff's authority, the lessor of the plaintiff purchased the road as a part of the estate sold, for the sheriff testified that he sold, and meant to con- vey to him all the estate of Nicholas Jones. If, however, the sheriff's authority can be JOHNSON'S CASES, 1. executed by deed only, we must next examine whether the road passed by the first deed. It appeared to be conceded that had the road been a mere easement, it would have well passed, by the general terms, ways, passages, paths, &c. It is at least questionable whether anything more than a right of way passed by the deed of Apthorp to Jones. If by the term "road," which is the only one in his deed, the land did not pass, then he certainly would take a right of way, the limits of which are defined by courses and distances. Whether the one or the other passed by Apthorp's deed, will, however, be immaterial, if it can be shown that the road was an appurtenant to Jones's farm. Appendants are by prescription; appurte- nances by grant. (Co. Lit., 212 b.) The latter also may arise from use. If one be seized of black acre and white acre, and uses a way over white acre from black acre to a mill, river, &c., and grants black acre, with all ways, easements, &c., the grantee shall have the same conveniency the grantor had. (6 Mod., Staple v. Hey den, p. 1.) Nor are appurtenants, necessarily, of an in- corporeal nature, but things corporeal may be appurtenant. If one has a house and land', and conveys water to the house by pipes *through the land, and afterwards [*2O2 sells the house with the appurtenances to one, and the land to another, the conduit and the pipes pass with the house, because they are necessary, and quasi appendant thereto, and he shall have liberty by law to dig in the land for mending the pipes, or making them anew, as the case may require. (Cro. Jac., 121; Nicholas v. Chamberlain.) Here, then, was a grant of a road through Striker's farm from one part of Jones's farm to another part of the same. Its only use was as an easement to that farm, and from the authorities adduced, well passed with it, quasi an appurtenant. The only remaining inquiry is, whether the road passed by the second deed of the sheriff, if it did not by the first. In the case of Her- veyv. Hervey (Barnard. Ch. Rep., Ill), it was resolved, and from that period it has been so settled, that a power over a legal estate, de- fectively executed at first, may be executed over again, and the last execution shall stand, the first being a nullity. Here, then, was a de- fective execution, for the sheriff sold all the estate of Nicholas Jones, but conveyed a part only. Nor is the case altered by the sheriff's want of knowledge, for it is highly probable he was, at the time of sale, as ignorant of the bounds of the farm and the quantity of land contained within them as he was of the road. He sold the whole estate, and of course ought to have conveyed the whole. My opinion, therefore, is that the plaintiff is entitled to recover, and that the defendant take nothing by his motion. New trial granted. Approved 2 Caines, C6 ; 14 Johns., Si3. Cited in 17 Johns., 122; 11 Barb., 190. 293 SUPREME COURT, STATE OF NEW YORK. 1800 293*] *GOOLD AND GOOLD v. SHAW. 1. Marine Insurance Total Loss Loss of Voy- age. 2. Id. Abandonment Subject insured. 3. Id. Warranty Seaworthiness. 4. Id. Latent Defect. 5. Id. Abandonment Loss of Voyage Injury to Ship. 6. Id. Id. Capacity to Carry Freight. 7. Neio Trial Value in Controversy Testimony. A ship was insured from New York to the East Indies, and was compelled, in consequence of a storm, to put into Martinique, for repairs, and the cargo, consisting .chiefly of claret and porter, was unladen, and though undamaged, it was sold, be- cause, from the heat of the climate, and exposure on the beach, it was in great danger of spoiling, and the voyage was thereupon broken up. The vessel might nave been repaired for less than half her value, so as to have been competent to prose- cute her intended voyage ; and was so repaired, as to return to New York. It was held that the loss of the voyage, in consequence of the necessity of sell- ing the outward cargo at Martinique, did not en- title the insured to recover for a total loss, on the policy on the ship. Citations 1 Term R., 611, n. a.; Z Burr., 1198 5 2 Burr., 683; 1 Term R., 187; 1 Term R., 130, n.; 1 Term R., 127 ; 2 Wills., 647 ; Park., 164. was an action on a polioy of insurance J. on the ship Astrea, from New York to certain ports in the East Indies, with liberty to touch at several intermediate places. The plaintiffs declared for a total loss by the perils of the sea. Plea, the general issue. The cause was tried before Mr. Justice Rad cliff, at the last March circuit, in the city of New York. The policy, the plaintiffs' interest, the preliminary proofs, and an abandonment of the ship to the defendant in due season, after notice of the loss, were admitted. It appeared in evidence, that the ship sailed from New York, on the voyage insured, on the 7th February, 1796, and, about the 13th of the same month, was overtaken by a violent storm, in which she became so much injured that she was obliged to seek the first port, and put into Martinique, where she arrived on the 3d day of March following. There it became necessary to overhaul her cargo, of which the greater part, in value, consisted of claret and porter. The ship was found to be consider- ably injured, but the cargo remained unhurt. The wine and porter were there sold, because from the heat of the climate and the necessity of exposing them to the sun, and of rolling them over a hot beach, these articles were in great danger of perishing. As they composed the most valuable part of the cargo, the neces- sity of selling them occasioned the loss of the voyage, which, for that reason, was given up. The ship was sufficiently repaired to return to New York, and might have been repaired to perform the voyage intended, at an expense of less than half her value. Much evidence was also given on both sides on the question whether the ship was sea- worthy when she sailed on the voyage insured. This evidence is not detailed here, as the ques- tion depended on the weight of evidence mere- ly, without involving any important principle 94*] in the discussion, *and was decided by the jury in favor of the plaintiffs, and their verdict, in this respect, was considered by the court as justified by the evidence. The principal point in controversy was 830 whether, admitting the ship to have been sea- worthy, the plaintiffs, under the circumstances of the case, were entitled to recover for a total or a partial loss only. The judge, at the trial, was of opinion that the situation of the cargo, which remained en- tire, could not affect the policy on the ship, and that the ship being in a condition to be re paired at an expense less than half her value, and in a capacity to perform her voyage, it was not a case in which the plaintiffs had a right to abandon and claim a total loss, and that they ought to recover for a partial loss only. The jury, nevertheless, found a verdict for the plaintiffs, as for a total loss. A motion for a new trial was made, which was argued by Messrs. Troup and B. Livings- son for the plaintiffs, and Messrs. Pendleton and Riggs for the defendant. RADCLIFFE, J. Notwithstanding the able discussion this case has received, I cannot per- ceive any grounds on which to change the opinion that I entertained at the trial. It is expressly stated that the injuries received by the ship might have been repaired at Martin- ique for less than half her value. The plaint- iffs, therefore, cannot recover for a total loss, on the principle that a moiety of the value of the ship was lost. Their claim for a total loss must depend on the question whether the de- fendant, being an underwriter on the ship, shall be affected by the loss of the cargo, occa- sioned by the necessity of a sale, in conse- quence of the perishable nature of the articles, and not in consequence of an actual injury sus- tained, by means of any of the perils insured against. In general, it is true that the subjects of in- surance are intimately connected, and the perils attending; the one most commonly affect the other. The sources of danger are, in most in- stances, the same, and the policies on each in- discriminately insure against the same risks. But although *the same dangers await [*29o them, they are considered as distinct and inde- pendent of each other, and liable to different results. The same cause or occasion of loss may affect them in different degrees, and en- title the insured on each to a different measure of compensation, as sometimes to recover on the one for a total, and on the other for a partial loss only. Thus the ship, in a technical sense, may be totally lost, and the freight pro rate, for the greater part of the voyage be saved. So the ship, or both the ship and her freight, may be lost, and the cargo saved, by being conveyed without delay, in another ship, to the port of destination. This was the case in Plantamour v. Staples (T. R., 611, n. a.), in which the in- sured on the cargo recovered for an average loss only. In like manner, the freight and cargo, of either, may be wholly lost, and the ship saved, as in case of a capture, and a deten- tion of the cargo, and the immediate release of the ship before an abandonment. These instances show that although liable to the same perils, the consequences to each sub- ject of insurance may be essentially different. It is, therefore, necessary in every case of a loss, in order to.determiue the insurer's respon- sibility, to inquire to what extent the subject insured is affected. He is liable for that and JOHNSON'S CASES, 1. 1800 GOOLD AND GOOLD V. SHAW. 295 no more. According to the terms of the con- tract, his responsibility can extend no farther. It was never imagined that an insurer upon either ship, freight, or cargo, could be held liable for a loss sustained by the subjects which he did not insure, and if not directly liable, I think he cannot be indirectly affected by any accident that attends them. If the sub- ject insured be a ship, he undertakes that she shall be in a condition to perform the voyage, or in the words of Mr. Justice Buller, he insures the ship for the voyage. If the ship be dis- abled, he is liable, according to the circum- stances, for a total or a partial loss, but he is liable in relation to the ship only, and he can- not be affected by the state of the cargo which he did not insure. On these principles, I am of opinion that the plaintiffs in this action are 296*] not entitled to recover *for a total loss. The ship was capable of being repaired at a reasonable expense, and within a reasonable time, and, therefore, in a capacity to perform the voyage. Although the object of the voyage was de- feated, it was not on account of the accidents which attended the ship, and, therefore, not by any peril assumed by the defendant. The rule that when a voyage is defeated the insured may abandon and recover for a total loss, is a sound one, when applied to the subject insured. The cases which have been cited, I think, ex- tend no farther. In Hamilton v. Mendez (2 Burr, 1198), in which this rule was adopted, the insurance ' was on ship and cargo, and Lord Mansfield, in delivering the opinion of the court, speaks in- discriminately of both; it was unnecessary in that case to distinguish between them, for the loss was the result of a capture and recapture, and the circumstances relative to the ship and cargo were in all respects the same. In the case of Goss v. Withers (2 Burr, 683), there were two distinct policies on ship and cargo, and the injuries to each were distinctly considered. The case of Cazelet v. Barbe (1 T. R, 187), also appears to have been governed by the same distinction. That was an insurance on the ship only, and the question was, whether the insured could recover for a total or a par- tial loss. The principles on which that case was considered, and the determination of the court, related wholly to the loss sustained by the ship, without the least reference to the cargo. None of the other cases that have been mentioned contradict this rule, and although the question does not appear to have been di- rectly decided, I think the reason and justice of the case are decisively in favor of the de- fendant. But in the present instance, it has been con- tended that the underwriter on the ship shall be affected not only by an injury to the cargo, oc- casioned by the accidents which attended the ship, but shall also be answerable for the loss of the voyage resulting from the perishable nature of the goods which remained unhurt. If 297*] his responsibility can *be carried to this extent, it appears to me that a new course of proceeding ought to be adopted in the practice of insuring. If the underwriter on the ship can be affected by the nature of the cargo, he ought to be informed with respect to its quality, JOHNSON'S CASES, 1. and it ought to be required of the insured, in every instance, to disclose to him the particular commodities to be laden on board the ship to be insured. It would certainly be material to the risk, and affect the amount of the premium, and without such disclosure the policy ought to be discharged. So in the case of articles commonly treated as perishable, it would be necessary that the underwriter on the ship should protect himself from the losses usually provided against, by the memorandum at the foot of cargo policies; otherwise, if a cargo of such articles, by a trifling accident to the ship, should happen to perish, the insurer on the ship, being affected by the state of the cargo, would be liable for a total loss, and at the same time the insurer upon the cargo itself might not be liable at all. Yet a memorandum of this kind to a policy on the ship alone, I believe was never known. Other difficulties of a similar nature may be easily conceived, and the extent of them cannot be foreseen. They seem to show that the doctrine contended for, and the consequences which would flow from it, were never contemplated by the parties to an insurance. As far as I can trace those conse- quences, they present insuperable obstacles in almost every situation of the parties, and 1 can adopt no rule more simple in itself, and which appears to me more agreeable to the intent and just construction of the contract, than to con- sider the losses attending the different subjects of insurance, as distinct and independent of each other, as the policies themselves are dis- tinct. I am, therefore, of opinion, in the present case, that the ship being in a condition to be repaired, and in a capacity to perform the voy- age, the plaintiffs are not entitled to recover for a total, but for a partial loss only, and that a new trial ought, therefore, to be awarded. *LEWIS, J. Three principal ques- -[*298 tions arise in this cause. 1. Whether the ship was seaworthy. 2. Whether she was disabled from pursuing her voyage, through stress of weather. 3. Whether the sale of. the perishable arti- cles at Martinique, which composed nearly two thirds in value of her cargo, was a consequence of the injury sustained in the storm, and a suf- ficient motive for abandoning the voyage. The first question affects the right of re- covery generally. The two others relate to the amount of damages. The first, though depending on professional skill and opinion, is nevertheless a simple ques- tion of fact, on which the jury alone were com- petent to decide; and as there appears to have been considerable testimony on both sides, which they must have had under their con- sideration, and upon which they must have made up an opinion, I consider the court as precluded from saying that they ought to have decided differently from what they have done on this point. The second question appears to be in the same situation. Burnet, the master shipwright of the dock yard at Port Royal, testifies that the ship was not in a state to proceed to the East Indies, and that the repairs necessary for such a voyage could not have been effected at Martinique. Palmeter, another shipwright at 331 293 SUPREME COURT, STATE OF NEW YORK. 1MM> the same place, testifies that the expense of her repairs at Martinique would have exceeded her value. If this be true, then the verdict for a total loss is right; because her whole value would have been sunk to the owner. It is true that the report of survey states that she might have been repaired for 1,200 sterling; but it does not state that she might have been thus re- paired for an East India voyage. On the con- trary, it could not have been made with a view to such a voyage, as the master had determined to sell the cargo, and return to New York, previous to the survey; and, as one of the 1399*] *witnesses deposes, she could not be repaired in Martinique for such a voyage. The captain, on the other hand, deposes that he thought the ship strong enough, after she was refitted, to proceed on a voyage to India, j though he would not like to have gone in her without new sheathing her larboard like her starboard side, which might have been done for about $3,000. It may be said that had not the captain sold the principal part of i his cargo at Martinique, there is a porbability j that, under the influence of his own opinion of the strength of the ship, he would have prosecuted his voyage. But it is equally probable that as a prudent man he would have reposed himself on the opinion of the ship- wrights and merchants; for had he proceeded, and the ship been lost from an inability to resist the ordinary perils of the ocean, there would have been room for dissatisfaction on the part of the underwriters, and in the event of a recovery, their loss would have been en- hanced. Besides, the advanced state of the .season might have been a sufficient reason for not prosecuting the voyage. It appears from the letters of instruction from the agents of Mr. Dickson, the plaintiffs in this cause, that it was late when he sailed; upwards of two months were occupied by the repairs she received, and a further repair would have oc- casioned a much longer delay. Thus it appears that there has been testimony on both sides of this question also, and as it was a mere matter of fact, it belonged entirely to the jury to decide upon it. The verdict for a total loss may, however, have been founded on the facts stated in the third question; an examination of it, therefore, also becomes necessary. It was observed by one of the plaintiffs' counsel that the verdict being general, and it not appearing on what particular ground it is founded, if there is a sufficient one, it ought to be supported. I be- lieve this is a good general rule, and if the second question stated was perfectly free from doubt, I should have no hesitation as to its ap- 3OO*] plicability *to the present case. But this is not precisely the fact. It was contended, on the part of the defend- ant, that the ship, cargo, and freight, being distinct subjects of insurance, are so discon- nected that the loss or injury of the one cannot affect the policies on the others. The subject of this proposition is certainly true; but the predicate is as certainly the reverse. There are cases in which they may be connected and in- fluence each other; there are others in which it is impossible to disconnect them. Thus, be- 1 tween the goods and freight, a total loss of the former annihilates the latter. A jettison of the 332 former creates a general average on the whole. As between the ship and freight, the former being arrested in her iter, the latter is de- maudable pro rata only. The connection material to the decision of this question, is that between the goods and the ship. It was asserted by one of the counsel for the defendant that no case is to be found in which the loss of the cargo has affected the policy on the ship. This, I think, is a mistake. Ac- cording to rny understanding of the cases of Ooss v. Withers, and Mitten v. Fletcher, the doctrine is expressly recognized in each of them. In the former case, although there were two actions on two policies one on the ship, the other on the cargo the two questions submit- ted to the consideration of the court arose upon the former. The second question was ex- clusively so, because it related solely to the right of abandoning the ship. The whole argu- ment of Lord Mansfield rests upon this policy, with the exception of an incidental observation that everything advanced on it held stronger in the case of the other policy with regard to the goods. It is in relation to the former policy that the following arguments are made use 01 : ' ' The freight (except in proportion to the goods saved) was lost." " To pursue the voyage was not worth the freight." " The goods saved might not be worth the freight for so much of the voyage as they had gone when they were taken." " The cargo *from its nature [*3O1 must have been sold where it was brought in." These circumstances, though having an im- mediate relation to the goods and freight, are held so to affect the ship also as to constitute a right to abandon her. If we are not to under- stand them in this sense, what explanation shall we give of a loss of voyage constituting a right to abandon the ship? If she does not arrive with her cargo at her port of discharge, she sustains a diminution at least of her freight, which is her earnings. If the goods saved are insufficient to pay her freight pro rata itineris, her security for it is lessened in proportion to the diminution of the subject of her lien. In the case of Mittes v. Fletcher, which was an insurance on the ship and freight, the argu- ments of the coxirt turn principally on the situation of the cargo; and as they are offered conjunctively with relation to both subjects of insurance, I can see no authority by which we ought to consider them distributively. One of them is expressly applied to the ship, in the following terms: "As to the ship, it was cer- tainly better to sell her than to bring her to London." Why? One reason is because " she had no cargo." " I have viewed this subject in every situation in which I am capable of placing it, and can imagine but one cause in which the loss of cargo does not affect the ship; and that is, where the goods arrive specifically at the port of discharge, though injured or even destroyed; and that is on the principle that neither the ship nor the voyage is lost. She sustains no injury, either 'immediate or by direct con- sequence, except in the diminution of her securi- ty for her freight, which is but a remote con- tingency, as a cause of real loss, and, there- fore, insufficent, perhaps, per se, to warrant an abandonment. JOHNSON'S CASES. 1. 1800 GOOLD AND GOOLD V. SHAW. 301 The only remaining question is, whether the sale of the supposed perishable part of the cargo was a sufficient reason for adandoning the voyage. Or rather, whether the loss of the voyage was a consequence of a peril incurred within the policy. It was insisted, on the part of the defendant, on the authority of Jones v. 3O2*] Schnwll (1 Term. Rep. 130. n), that it must be a direct and immediate consequence of the peril insured against, and not a remote one. In Robertson v. Ewer (1 Term. Rep., 127), the case is so cited by Mr. Erskine, and Mr. Parke has adopted his precise words; but in a report of it, in a note to the case last men- tioned, Lord Mansfield is not made to speak in such strong terms. lie only says that the un- derwriter is not answerable for the loss or price of market, as this is a remote consequence, and not within any peril insured against. It is true, that he leaves it as a question for the jury to determine what slaves fell within the terms of the policy, it being an insurance against mutiny, and what did not. I do not consider this case as of much authority. It was at nisiprius, and, in my opinion, contains absurdities. Thus the distinction taken by his lordship between the effect of mutiny and that of the failure of mutiny, as if the favorable or unfavorable issue of the thing could altar its nature. Thus, also, the distinction taken between the slaves who, to avoid the fire of the crew, precipitated them- selves down the gangway, and thus terminated their existence, or those who, from the same motives, threw themselves into the ocean, and there met a similar fate; and that the under- writers should be held liable for the former and not the latter, are to me things unintelligible. I should suppose a better rule to be that where the loss of voyage was a necessary or justifiable consequence of the peril incurred, the under- writer should be liable, otherwise not. I will apply this rule to the present case. The cap- tain had an implied authority from all the par- ties concerned, to do what was fit and right, and for the general benefit, and each must abide by the consequences. Un his arrival at Mar- tinique, he found no agent to whom he could apply for instructions. He did what he in prudence ought to do; he applied for advice from merchants on the spot. He was com- pelled to unload his cargo, and to repair his ship. He was compelled to lay it on the hot beach, and was advised that the wine and porter, thus exposed, would not bear the influ- 3O3*] ence of a tropical sun; *and that, there- fore, he ousrlit in prudence to dispose of it. He followed their advice, and is thereby deprived of the principal part of his cargo. The season, too, from the length of time he had been de- layed, was probably lost. The object of the voyage was also defeated. For, to carry money to India, instead of the articles originally ship- ped, might not be equally beneficial. The greater part of the freight must be lost. Be- sides, he might be apprised of the abandon- ment of the cargo, and then surely he would not be justified in carrying the money, which belonged to the underwriters, to India, without their consent. Most of these points will be found to have entered deeply into the decision of the court in Milles v. Fletcher. Whether, then, from a view of these circumstances, the loss of the voyage was, if I may so express JOHNSON'S CASES, 1. myself, a prudential necessity, consequent to the injury sustained by the seas, was a proper subject of inquiry for the jury. It has been submitted to them: they have decided it; and I cannot say that there is such manifest error in their decision as would warrant my assenting to set it aside. My opinion, therefore, is that the defendant ought to take nothing by his motion. BENSON, J. , was also of opinion that the voy- age was defeated, and that the plaintiffs were, therefore, entitled to recover as for a total loss. LANSING, Ch. J. A motion has been made to set aside the verdict in this cause, on two grounds. 1. Because it was contrary to evidence, as to the seaworthiness of the ship. 2. Because the plaintiffs were not entitled to recover as for a total loss. The doctrine of seaworthiness imposes on the insured a knowledge of the condition of the ship, so far as to exempt the insurer from re- sponsibility from any loss arising from its defi- ciency or defective quality. If any latent defect occasioned the loss of the ship, it is one of those perils against which the insurer has not stipulated to indemnify the insured. *The question, then, is, whether the f*3O4 weight of testimony is such that the impedi- ment of the voyage, in this instance, was owing to such latent defect, so as to induce the court to say that the verdict is against evidence. From the testimony of Captain Dodge, it ap- pears that he examined the ship minutely by boring her timbers about eighteen months be- fore the commencement of her voyage, and that she was then perfectly sound. Thorn, a ship carpenter, employed in caulk- ing the ship before her departure from New York, and after her return to that port, in ex- amining her, pronounced her perfectly sound, and a remarkably strong built ship; and from both examinations, he concludes she was sea- worthy when she sailed. He afterwards as- sisted Rutgers and Miller, the wardens of the port, in examining the ship, about two years after she returned. They all agreed that she was a remarkably strong and good ship. William Burns, William Bennet, and George Parmeter, who surveyed the ship at Martinique, describe the defects they discovered on such survey generally; that about a dozen of the lodging and dagger knees were rotten and de- cayed, and two or three of her beams defective; that the mainmast was sprung, and part of the copper sheathing off. Bennet adds that one of her beams was broken, and they all are of opin- ion that the ship could not have been seaworthy when she left New York. Richard Packwood, the shipwright who re- paired the ship, testifies that about nine of the dagger knees were broken and rotten; that one of her lower deck beams was rotten at the end; that one carline and sleeper had fallen from the deck; that the copper had eaten the iron bolts, and that the starboard side sheathing and cop- per were washed away. William Dodge, the captain, in his deposi- tion, enters into a fuller explanation of the nature of the defects. He describes the knees 333 304 SUPREME COURT, STATE OF NEW YORK. 1800 as a little defective at the ends, but some were broken that were not defective; that the new 3O5*1 *oak knees were not quite as good as the old ones; that it did not appear that the copper had corroded the nails, or the iron rotted the plank; and he supposed the ship suf- ficiently strong, after being refitted, to proceed to India. William Smith, the mate, testified that he ex- amined the ship before she left New York; that she appeared to him to be tight, staunch and strong; that one of the beams, which was afterwards "found to be defective, was some- what rotten at one end, but was broken in a sound part of it; that the knees were remarka- bly well bolted, having each three or four bolts in the sound parts of them, only five were a little rotten at the ends, and that he believes the ship was seaworthy when she left New York, and capable of proceeding to the East Indies, if she had not met with the violent gale in which she was injured; and that the sheath- ing, he thinks, was good before the storm, but some of the nails appeared corroded. There is no doubt that the vessel was exposed for many hours to a violent storm. There are other witnesses, whose testimony tends to support the different sides of these irreconcilable opinions, but enough is detailed to show that there was great room for the jury to exercise their judgment in their peculiar province, to discover which ought to preponder- ate; that there was evidence on both sides, and that the preponderancy is not so great on either as to induce the court to pronounce that this is a verdict contrary to evidence, or even the weight of evidence. This point was particularly stated, as an ob- ject of attention to the jury, and as they have passed upon it, I think, if this was the only question, it ought to conclude the parties. The second ground is that the plaintiffs were not entitled to recover for a total loss. I understand the insurance, as it was stated in the argument, to be an insurance on the ship for the voyage; that if the ship was so in- 3O6*] jured as to detract more than one *half from its value, or the voyage had been so far defeated as to render it an object not worth pursuing, the insured might, by abandoning, have constituted it a total loss. (Park., 164.) The ship appears to have been valued at $25,000. The amount of the repairs was $4,199; and if the sheathing which remained on her had been taken off, it appears that the whole would not have exceeded $7,199. The ship, therefore, unconnected with the circumstance in which the cargo was placed, was not so much injured as to constitute a case authorizing an abandonment. The actual ex- penditures were less than one fifth of her esti- mated value, and adding the repairs which were supposed necessary, but which in the re- sult appeared not to have been so, they would not have amounted to one third. The time necessarily employed in refitting the ship does not appear. She arrived at Mar- tinique on the 3d of March, and William Par- sons declares that she left it about the month of June ; but whether all the intermediate time was necessarily spent in repairing, or what in- fluence her detention could have had on her voyage, is totally left out of the case. 334 The point that the ship was not capable of proceeding to India after she was repaired, ap- pears not to have been much insisted on in the argument; but it was said that the articles, the proceeds of which were to furnish freight upon her return, were parted with from an appre- hension that they would be spoiled by their ex- posure to the heat of the sun on the beach. The insurance in this instance is not on the cargo, but on the ship ; and, as in cases of in- surance of goods, the speculation of the mer- chant is not attended to, so in this case, in my opinion, the profit of the voyage is not in ques- tion, as connected with its ulterior object, the safe progress of the ship to the port of its destination. The inquiry resolves itself into the simple question whether she was capable of earning freight generally, and not * whether she carried the particular car- [*3O7 go with which she was laden in safety. To exemplify this doctrine, I will state a case: Suppose the ship had sprung a leak the day after she left New York, which, though it spoiled her cargo to all useful purposes, might have been repaired at a trifling expense, and without loss of time. Here the leak not de- tracting from the ship one half its value, nor destroying its capacity to earn freight, could not authorize the abandonment of the ship, and yet the funds destined to produce the freight would be completely destroyed. A contrary doctrine would make the insurer responsible not only for the safety of the ship, but the preservation of the cargo. If, however, the intimate connection, which is contended, on the part of the plaintiffs, to subsist between the ship and cargo, actually existed, it could not better their situation, for the sale of the cargo was merely dictated by an apprehension of loss, and the captain declares, that before he had taken measures to ascertain the extent of the injury the ship had received, he had resolved to convert the claret and por- ter into cash, by the advice of his friends, and under the influence of this apprehension. It was a matter of no consequence to the in- surer, if the claret and porter were preserved in substance, that their inherent tendency to spoil had rendered them of no value. Perils of the sea were only insured against, and if they were not injured by some of these, wheth- er the claret and porter commanded, at the port of delivery, or at any intermediate port, prices equal to those of the best quality of such articles, or a sum not more than the value of the casks in which they were contained, was immaterial to the insurer. He had only stipu- lated that the ship should, notwithstanding the perils insured against, be in a capacity to earn a reasonable freight for the voyage, and not that the goods should remain in perfect preser- vation. *There is no point of view in which [*3O8f I have been able to place this subject, which would, in my opinion, justify a verdict as for a total loss. I am, therefore, for setting aside the verdict on this ground. Another ground was mentioned in the argu- ment; that the jury had sealed their verdict, and separated before it was delivered to a judge or given in court. This practice has been for some time established for the sake of convenience. The delivery to the judge does JOHNSON'S CASES, 1. 1800 DELAVIGNE v. THE UNITED INSURANCE COMPANY. 308 not afford the parties any additional security; for after it has been sealed, they may take it into court. I am inclined to consider the objection as of no weight, but it is not necessary for me to give any opinion on the point, as the second reason for a new trial is, in my opinion, decisive. KENT, J. Having formerly been concerned as counsel in the cause, it was not my inten- tion to have expressed any opinion on the questions which have been argued; but as the other judges are equally divided in their opin- ions, I think it proper, in order that there may be a new trial on the merits, and that the par- ties may have an opportunity, by a bill of ex- ceptions, or a special verdict, to spread the case on the record, and carry it up by a writ of error, to be decided in the court of the last resort, briefly to state my opinion on the case. The question of seaworthiness was fairly submitted to the jury, and two verdicts having already been given on that point, and there being a variety of testimony, and some of it contradictory, I think the verdict ought not to be disturbed on that ground. But the weight of evidence is, that the ship was not so injured as to be worth less than half of her value. It appears that she might have been repaired for one fifth of her value, and that she was actually repaired and returned from Martinique to New York. The sale of the liquor, admitting the sale to have been a direct and necessary consequence of one of the perils tn the policy, ought not to be considered as defeating the voyage. The 3O9*J *liquors constituted only a small freight for a ship of 400 tons, and a principal object of the voyage must have been the home- ward freight from the East Indies. Here, then, did not exist a case authorizing an abandonment. Neither the subject insured nor the voyage was lost. And, indeed, I think it is a question (though not necessary now to be discussed and decided) whether on a policy on a ship, the insured can abandon while the ship is safe, in consequence of the loss of car- go, and whether the true rule of law be not that the subject insured must be either actually lost or so injured as thereby to occasion a loss of the voyage, before it can be abandoned. (See Pole v. Fitzgerald, 2 Willes's Rep. , 647.) But as I observed, it is not necessary, and therefore I give no opinion on this point. It is suffi- cient to say that here does not appear to exist a case constituting a total loss, and that the plaintiff is entitled only to an average loss. It may further be observed, as a strong auxiliary consideration in favor of granting a new trial, that the thing in controversy is of great value,and the testimony considerably nice and complex. I 'am accordingly of opinion, that the ver- dict should be set aside, and a new trial grant- ed, on the payment of costs. Rule granted accordingly. 1 Affirmed 2 Johns. Cas., 442. 1. The case was again brought to trial, when a special verdict was found, containing, in substance, the facts as above stated. A judgment was given for the plaintiffs in this court, for a partial lss, up- on which a writ of error was brought, and, after argument, the court of errors, in February, 1801. affirmed the judgment of this court as above deliv- ered by Lansing, Ch. J., Radcliff, J., and Kent, J. JOHNSON'S CASES, 1. *DELAVIGNE [*31O v. THE UNITED INSURANCE COMPANY. Insurance Failure of Warranty Premium. Where a policy becomes void by a failure of the warranty, the insured is entitled to a return of the premium, if there be no actual fraud. THIS was an action for money had and re- ceived, brought to recover back the pre- mium which had been paid by the plaintiff to the defendants, for insuring the brig Norge and her cargo, from St. Thomas to New York. The cause was tried before Mr. Justice Rad- cliff, on the 20th day of November, 1799, at a circuit court held in the city of New York. The jury found a verdict for the plaintiff for $1,460.54, subject to the opinion of the court on the following case : On the 12th of December, 1798, the defend- ants insured for the plaintiff the brig Norge and her cargo, by two separate policies, at a premium of 17^ per cent., from St. Thomas to New York. The vessel was described as the "Danish brig called the Norge," but there were no other words importing any warranty. In the policy on the cargo there was a writ- ten warranty in these words: "Warranted the property of Casimire Delavigne, a citizen of the United States." The Norge was capt- ured during her voyage, and the vessel and cargo were condemned in the Admiralty Court at New Providence, as being ' ' French proper- ty." The plaintiff, insisting that the cargo was his property, and the vessel the property of Joseph Gilbert, a naturalized Danish burgher, resident in the island of St. Thomas, and claiming a total loss on each of the poli- cies, the parties thereupon submitted the lia- bility of the defendants to pay the sums as- sured, to three arbitrators, who, on the 27th of January, 1799, made the following award: " Having duly examined and considered the case of the brig Norge and her cargo, submit- ted to our decision, and the evidence and arguments produced by the parties, we are of opinion that the assured are not entitled to *recover against the assurers for the [*311 said brig and cargo, because, "1. By the English books of law it is a set- tled principle that when the precise point at issue between the parties has been decided by a foreign court, and the grounds of that decis- ion are manifest, it is conclusive and binding; which principle, we understand, has been recognized and adopted as law in the Supreme Court of Judicature of this State (see ante, p. 16), and the Vice-Admiralty Court of New NOTE. Marine insurance, return of premium. In support of the doctrine of the above case, see Duguet v. Rhinelander. post, 360 ; Murray v. United Ins. Co., 2 Johns. Cas., 168 ; Jackson v. N. Y. Ins. Co., 2 Johns. Cas., 191 ; Robertson v. United Ins. Co., 2 Johns. Cas., 250; Forbes v. Church, 3 Johns. Cas., 159 ; Graves v. Marine Ins. Co., 2 Caines, 339 ; Richards v. Marine Ins. Co., 3 Johns., 307 ; Murray v. Colum- bian Ins. Co., 4 Johns., 443; Elbers v. United Ins. Co., 16 Johns., 128 ; Feise v. Parkinson, 4 Taunt., 640 ; Anderson v. Thornton, 8 Exch., 425 ; Oroin v. Bruce, 12 East, 225 ; Foster v. United Ins. Co., 11 Pick., 85, 90; see, further, Waters v. Allen, 5 Hill, 421; Mer- chants' Ins. Co. v. Clapp, 11 Pick., 56. 335 311 SUPREME COURT, STATE OP NEW YORK. 1800 Providence did expressly decree the brig Norge and her cargo to be French property, And, therefore, not the property warranted in the policies of insurance. "2. Admitting the sentence of a foreign ourt not to be binding in the courts of this country, yet the evidence produced on the trial before the Admiralty Court, particularly the instructions of Joseph Gilbert to the cap- tain, and the contradictory swearing of the captain himself, afford such circumstances of doubt, as do not permit us to say that the decision of the court was inconsistent and con- tradictory, or so manifestly against law and justice on the face of it as that it ought to be disregarded; we, therefore, determine that the insured ought not to recover against the said United Insurance Company, for the total loss of the said brig and cargo, and that the policies thereupon be cancelled.^' The policies were cancelled accordingly. Among the proofs exhibited by the plaintiff to the arbitrators, was the affidavit of James La Rue, one of his clerks, who swore positive- ly that the cargo belonged to the plaintiff. Nothing was said by either party to the arbi- trators respecting the return of premium, which had been actually paid by the plaintiff; nor was that question either considered by, or submitted to them. The plaintiff was admitted to be a natural- ized citizen of the United States. It was agreed that the court might draw such inferences as to facts, as a jury might draw; and, if the court, under all the circum- stances of the case, should be of opinion 3 1 2*] *that the plaintiff was entitled to a re- turn of premium, the verdict was to stand and a judgment to be entered accordingly; if not, then judgment was to be entered for the defendants, with costs. Mr. B. Livingston for the plaintiff. Mr. Troup for the defendant. LEWIS, J., delivered the opinion of the court : It was admitted as a general principle that where the policy never attaches, but is void ab initio, that the premium must be re- turned, because the contract is without consid- eration, and the insurer ought not to retain the premium where no risk has been run. But it was insisted that here was a fraud on the in- surer, which enhanced the risk, and that, therefore, the plaintiff ought not to be allowed to maintain an action for a return of premium. If the defendants had sought relief in a court of equity against the policy on the ground of fraud, they would have been obliged, according to the course of that court, to have refunded the premium before any aid would have been afforded them. Whether in a suit on the policy in this court they would not have been held to do the same, and to bring the money into court, it is not necessary now to decide. As no risk was run the plaint- iff will be clearly entitled to a return of the premium, unless some positive bar can be shown. It has been agreed by the parties, that the court may make such inferences as to facts as might be drawn by a jury. If, there- fore, we do not find sufficient grounds for an inference of fraud, it will be unnecessary to 330 consider the propriety of some late decisions of the English courts, that actual and gross fraud will defeat the right to a return of premium. In the present case no positive or direct fraud appears. In the policy on the vessel, she is de- scribed as Danish, and there is no one circum- stance from which we can infer that the plaint- iff knew her to be otherwise. The Vice-Ad- miralty Court founded its sentence of con- demnation on the circumstance of the bill of sale made by Gilbert to Michel, in a foreign country, which we cannot presume was known *to the plaintiff. There is no pretence [*313 that Gilbert was not a Dane. As to the policy on the ship, there cannot be the least doubt, but that the plaintiff is entitled to a return of the premium. As to the warranty in the poli- cy on the cargo, there may be some room for doubt, but from a consideration of all the facts, we are not authorized to conclude that the plaintiff knew that the warranty was false. It is not easy to imagine any motive of fraud. The plaintiff had everything to lose and noth- ing to gain by practicing it. At most it is a bare constructive fraud, We are, therefore, clearly of opinion, that the plaintiff is entitled to judgment. Judgment far theplaintiff. Cited in 2 Johns. Cas., 193. EARL e. SHAW. 1. Marine Insurance Abandonment Accident. 2. Id. Id. Continuing Loss. 3. Id, As- signmentNotice. 4. Id. Deviation In Port for Stx Months. The insured are not bound to abandon in case of an accident, but may wait the final event, and recov- er accordingly for a total or a partial loss, as the case may be. It is sufficient if there be a loss con- tinuing' to the time when the abandonment is made. If a policy be assigned by the insured to a third per- son, before the vessel sails on her voyage, it is not necessary that the insurer should have notice of the assignment. Where a vessel stayed in port six months after the date of the policy, it was neld not to be a deviation, it not being fraudulent or varying the risk. The date of a policy is not conclusive evi- dence of the time of its actual subscription. Citations Marsh., 405; Park, 313; Doug., 291, 292; 4 Esp. N. P. Cos., 26. rpHISwas an action on a policy of insurance -L on the ship Grand Turk, from New York to any port or ports in the East Indies, and back to New York. The policy was dated the 5th of May, 1795. NOTE. Marine insurance. Assignment of policy. The doctrine of the above case is approved in Hitchcock v. North-Western Ins. Co.,26 N. Y., 68 ; see,also. 1 Parsons on Marine Ins., 53. Abandonment, time for. As the doctrine of the above case is applied only in cases where the loss continues total, it is of little practical importance. See Stienbach v. Col. Ins. Co., 2 Guinea, 132 ; 2 Caines' Cas., 158; Brown v. Phoenix Ins. Co., 4 Binney (Pa.), 445; sec, generally, Livingston v. Md. Ins. Co., 7 Cranch, 506 ; Pierce v. Ocean Ins. Co., 18 Pick., 83 ; Reynolds v. Ocean Ins. Co., 22 Pick., 1!)1 ; Mellish v. Andrews, 15 East., 13; Mitchell v. Edie, 1 T. R., 608; Abel v. Potts, 3 Esp., 242. Delay, when it constitutes deviation and when not. See Oliver v. Md. Ins. Co., 7 Cranch, 487 ; Columbian Ins. Co. v. Catlett. 12 Wheat.. 384 ; Seamans v. Loring, 1 Mason, 127 ; Whitney v. Haven, 13 Mass., 172 ; 22 Pick., 205; Hull v. Cooper, 14 East, 479; Palmer v. Funning, 9 Bing., 4(iO. JOHNSON'S CASES, 1. 1800 EARL v. SHAW. 313 The cause was tried before Mr. Justice Rad- cliff, at the sittings in New York, on the 14th of November, 1799, when the jury found a verdict for the plaintiff, subject to the opinion of the court on a case made, with liberty to either party to turn the same into a special ver- dict. The following are the material facts in the case: The vessel was captured on the 26th of De- cember, 1796, on her return to New York, and carried into St. Kitts. The plaintiff was on board at the time of her capture. The policy was assigned and delivered on the 5th of No- vember, 1795 (which was previous to her sail- 314*] ing on her *intended voyage), to Lewis H. Guerlain, who then resided in the city of New York, and has continued to reside there ever since, of which assignment the underwrit- ers had no notice. Both Earl and Lewis H. Guerlain were, at the time of the insurance, naturalized citizens of the United States, the former having been a subject of England, and the latter a subject of France. On the 15th of February, 1797, there was published in the gazettes printed in New York, an account that the Grand Turk had been capt- ured by a British ship of war, and carried into Dominico, where, after an examination, she was discharged; that she had sailed from Dominico, and had been again captured by a British ship of war, and carried into St. Kitts. The captain of the Grand Turk arrived in the city of New York in the month of April, 1797, and some time after his arrival (less than one morith) Guerlain sent his clerk to the captain for information with respect to the vessel, who delivered to the clerk his protest, and at the same time observed that the plaintiff being in the West Indies, and having attended particu- larly to this business, he could give no informa- tion. On the llth of February, 1797, sentence of condemnation on the vessel and cargo was pronounced in the words following, viz. : "That the ship Grand Turk, her tackel, ap- parel and furniture, together with the guns, ammunition and stores, and also six casks of indigo and eight bales, all marked S. M. & Co., laden and seized on board the said ship, be condemned as lawful prize to the captors, as being the property of enemies of the crown of Great Britain, or otherwise subject and liable to confiscation, to be forthwith delivered to the captors, their agent or agents; that the register do with all speed take an account of all the contraband articles contained in the invoice of the said ship's outward bound cargo from New York, and report the amount thereof to this 315*] court; that the return * cargo, or such part of the goods, wares and merchandises laden and seized on board the said ship Grand Turk, and which are marked with the initials of the said claimant, viz., I. E., be afterwards sold by the agent or agents for the captors, and that in the proportion which the contraband articles, composing part of the said outward cargo, bear in value to the other articles or other lawful goods composing such outward cargo, by the invoice of the whole thereof, the nett proceeds arising from the sale of the said return cargo, or that part thereof which is marked with the JOHNSON'S CASES, 1. N. Y. REP.. BOOK 1. initials I. E. , be divided in the same proportion between the captors and claimant; and that such proportion which is so adjuged to the captors, to be also condemned as lawful prize to the said captors, as the enemies of His Brit- annic Majesty, or otherwise subject and liable to confiscation. And that such proportion which is directed to be restored to the claimant be, and the same is hereby acquitted. And his worship, the judge was further pleased to pronounce, adjudge and decree, that all the goods, wares and merchandises, laden and seized on board the said ship Grand Turk, marked with the initials V. S., and consisting of 45 bales of cotton, 42 bags of coffee, 1 box of nutmegs, and 72 bales of cotton, be accquitted and re- stored to the said claimant, for the benefit of the owners thereof, as being the property of neutrals; that the wages of the master, physi- cian, officers and seamen, be a charge upon the said ship and her freight, and that the question of costs be reserved for further con- sideration." On the 12th of May (being the day appointed for that purpose) an appeal from the sentence of the said court was duly filed by Earl, for the benefit of all concerned, and a bond with security given for the prosecution of such appeal. The policy of insurance on the Grand Turk was in tile usual form, with a memorandum at the bottom, in the words following: * "Note. The ship is warranted [*316 American property, and the oath of the parties, together with the register at the collector's office, or the duplicate on board the said ship, are to be admitted as sufficient proof, and not to be bound by any foreign adjudi- cation." This evidence, as prescribed, was produced at the trial. The abandonment was made on the 6th of October, 1797, which was immediately after Guerlain had received the papers proving the condemnation. From the period of the capture of the ship until the time of abandonment, and both before and after condemnation, the assured did every act and thing he judged necessary for her re- covery, and the benefit of all concerned. When the abandonment was made, the vessel still continued in the hands of the cap- tors, and the sentence of condemnation has not been reversed, and the property still remains in the hands of the captors. No information was given to, or inquiry made by the underwriters of the nature of the cargo on board, at the time the ship sailed from New York. A motion for a new trial was made by the defendants, and argued by Messrs. Burr and Harison for the plaintiff, and Messrs. B. Liv- ingston and Hamilton for the defendant. LEWIS, J., delivered the opinion of the court: In this case three questions have been made. 1. Whether the delay of the voyage before the vessel sailed can affect the policy. 2. Whether the assignment of the policy by the plaintiff to Guerlain. previous to the sailing of the vessel, altered the risk, so as to vitiate the policy. 3. Whether the abandonment was made in 22 337 316 SUPREME COURT, STATE OP NEW YORK. 1800 due season, the notice of loss having been re- ceived in April, 1797, and the abandonment made in October following. 1. It does not appear that the vessel was detained after the policy was dated, from fraud or any sinister design, nor that the risk was thereby enhanced. The vessel was in- 317*] sured * for an India voyage, and several months may have been necessary, after the date or opening of the policy, to complete the insurance. Whether it was so or not, was a question of fact to be raised at the trial, and decided by the jury. It is the practice to insure before as well as after the commence- ment of the voyage, and while the circumstances and risk remain the sanu , it cannot be material whether the voyage is immediately pursued. 1 In the present case, the policy attached as soon . as it was effected, and it does not appear that there has been any unusual or unnecessary delay, nor that any occurred to alter the risk before the vessel sailed. 2. The objection as to the assignment of the policy appears to be equally immaterial. Such assignments are common, and it is not easy to perceive how they can affect the insurer, unless in the case of neutral property assigned to a subject or citizen of one of the belligerent parties. That is not pretended to be the case here. 3. It is contended, that the insured is bound to make his election in a reasonable time after notice of the loss; and if he does not elect to abandon within such time, he cannot after- wards. The right to abandon is for the benefit of the insured, and he has an election to exer- cise his right or not. If he pursues the enter- prise and does not abandon, he may recover for a total or partial loss, according to the final event. By the terms of the policy, he may labor and sue in and about the property insured, without prejudice to the policy. He may therefore take the chance of the ultimate success of the voyage. If the loss should continue total, he may abandon, or if it be converted into a partial loss, he must recover accordingly. This is favorable to the interests of trade, and is consistent with the contract and the rights of the parties. While the insured acts with good faith in endeavoring to recover the property, no injury can arise to the insurer. If he is guilty of fraud, or cul- pable neglect, his conduct ought not to affect the insurer, and the loss in consequence would 318*] *be his own. There is no fixed time at which the abandonment is to be made. In the present case, it was made immediately after receiving the papers proving the condemnation. This was the earliest period at which it could, with propriety," be done. Neither the account in the gazette, nor the master's protest, con- sidering the declaration with which it was qualified, was sufficient proof of the loss; and while the master was prosecuting his claim for a recovery, the insured was justified in waiting the event, and no possible injury could thereby arise to the insurer. As the special clause relative to the warranty provides for the mode of proof, and that the parties are not to be t bound by a foreign con- 1. But if the delay be unnecessary and voluntary, it will amount to a deviation. Marshall, 405 ; Park, 313 ; Doug. 291, 293 ; 4 Esp. N. P. Cases, 26. 338 demnation, the sentence of the admiralty court can have no effect, as the requisite proofs of the neutrality of the property were produced at the trial. The court are, therefore, of opinion that the plaintiff is entitled to recover. Judgment for the plaintiff * Approved 2 Caines, 132. Cited in 26 N. Y., 69. *ERNST . BARTLE ET AL. [*319< 1. Beneficial Association Corporation. 2. Cov- enant Distributimty. 3. Pleading Demand Precedent Debtor. society are not to be considered as a corporation, unless their corporate capacity be expressly shown. A covenant by several persons may be taken dis- tributively, though there be no express words of seyeralty. Where there is a precedent debt, or duty- it is not necessary for the plaintiff to state a special request or demand in the declaration. THIS was an action of covenant, in" which the plaintiff declared: " for that whereas, by a certain article of agreement made at the town of Claverack, in the County of Colum- bia, on the eighth day of October, in the year of our Lord one thousand seven hundred and ninety-one, between John Frederick Ernst of the one part, and Thomas Buchtel in his life- time, and Henrich Bartle, Jacob Millions, Jacob Camer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silver- nail, and Jonas Roschman of the other part, which said Thomas Buchtel is now deceased, which said article of agreement, sealed with the seals of the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Camer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, the said John Frederick Ernst now brings here into court, bearing date the same day and year above mentioned, reciting amongst other things that the subscribers to the same article of agreement, the trustees, the elders and deacons of the Evangelical Luther- an Church called St. Thomas, in Claverack district in the County of Columbia, in the State of New York, and the trustees, the elders and deacons of the Evangelical Lutheran Church at Lunenburgh, in the County of Al- bany and State aforesaid, well knowing their deplorable situation, without publishing the word of God and cure of souls as well amongst the old as among their young people, had, in firm reliance on the zeal, faithfulness and dili- gence of the said John Frederick Ernst (there- in called and named the Rev. Mr. John Freder- ick Ernst),of Kutztown,Maxetawney township, Bucks County, State of Pennsylvania, called him by virtue of their respective church offices 2. The case of Earl v. Lefferts, depending on the same facts, was decided in the same manner. NOTE. Covenants,when taken distributively though without words of severalty. Ludlow v. McCrea, 1 Wend., 228 ; Walker v. Web- ber, 12 Me., 60. Corporations, what not. Compare Appleton v. Water Commissioners, 2 11111,432; Medical Inst. v. Patterson, 1 Denio, 61 ; Wells v. Gates, 18 Barb., 564. JOHKSON'S CASES, 1. 1800 ERNST v. BARTLE ET AL. 319 and their duty, in the name and with the consent of all the respective members of the Evangel- ical Church, in their aforesaid congregations, 32O*] by those presents, *to preach, maintain, and spread therein, publicly, as well as privately, the pure and sound evangelical doc- trine, according to the foundation laid by the holy apostles, of which Christ Jesus was the corner-stone, and their unaltered Augustan confession; and likewise to administer the two holy sacraments, according to Christ's institu- tion; and with edifying sermons, which were to be preached on every other Sunday, in each of the aforesaid congregations, as much as God might grant him by grace and strength to feed the sheep, and with edifying catechisations, during the summer season, the lambs of. Jesus Christ; to visit the sick if it be made known unto", desired of, and was possible unto him; to attend on funerals; to instruct those in the sound principles of the doctrine of their church, who for the first time should be desirous to be ad- mitted unto the table of the Lord, and law- fully to join in holy wedlock; likewise to ad- minister his sacred office in all cases whatso- ever occurring, without regard to person or persons, so long as his doctrine and example shall prove to be according to the Word of God and the general established rules of their Ameri- can Lutheran Church, the said Thomas Buch- tel in his lifetime, and the said Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, did, in and by the same article of agreement, promise and covenant to pay, or cause to be paid to the said John Frederick Ernst, yearly, and every year, from the day of the date of the same article of agreement, as long as he, the said John Frederick Ernst, should be teacher in the congregation aforesaid, in manner and form following, to wit: for the administration of pubiic worship the sum of fifty pounds current money of the State of New York, pay- able in gold or silver, to be paid unto the said John Frederick Ernst in quarterly, or half- yearly payments, according to the request of the said John Frederick Ernst, and that they, the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, 321*] * Petrus Silvernail, and Jonas Rosch- man, should yearly find and provide him, the said John Frederick Ernst, with ten cords of good firewood. And the said John Frederick Ernst in fact says, that from the time of making and entering into the said article of agreement to the eighth day of October, in the year of our Lord one thousand seven hundred and ninety-seven, at the town and in the county aforesaid, he was and still is a teacher in the congregation at Churchtown, of St. Thomas's Church there, and hath done and performed all the duties and services to him pertaining as teacher as aforesaid. And the said John Frederick Ernst further in fact says, that the said Thomas Buchtel. Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, nor either of them, in the lifetime of the said Thomas Buchtel, nor have the said Henrich Bartle, Jacob Millions, Jacob Camer, Peter JOHNSON'S CASES, 1. Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, or either of them, since the death of the said Thomas Buchtel, paid to the said John Frederick Ernst the sum of twenty -five pounds of the said yearly payments, for the half of a year ending on the eighth day of April, in the year of our Lord one thousand seven hundred and ninety-three; nor have they, or either of them, in the life time of the said Thomas Buch- tel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty -five pounds of the said half-yearly pay- ments, for the half of a year ending on the eighth day of April one thousand seven hun- dred and ninety-four; nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty -five pounds of the said half-yearly pay- ments, for the half of a year ending on the eighth day of April one thousand seven hun- dred and ninety-five; nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty-five ^pounds, of the said half- [*322 yearly payments, for the half of a year ending on the eighth day of October one thousand seven hundred and ninety -five; nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty -five pounds of the said half- yearly payments, for the half of a year ending on the eighth day of April, one thousand seven hundred and ninety -six; nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty-five pounds of the said half- yearly payments, for the half of a year ending on the eighth day of October, one thousand seven hundred and ninety-six. Nor have they, or either of them, or the said Thomas Buchtel, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty- five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of April, one thousand seven hundred and ninety -seven ; nor have they, or either of them, or the said Thomas BucLtel, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him, the said John Frederick Ernst, the further sum of twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of October, one thou- sand seven hundred and ninety-seven. And the said John Frederick Ernst further in fact says that the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Camer, Peter Mil- ler, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Rosch- man, nor either of them, in the lifetime of the said Thomas Buchtel, or since his decease, have not paid to the said John Frederick Ernst, from the eighth day of October, in the year of our Lord one thousand seven hundred and ninety-five, to the eighth day of October, one thousand seven hundred and ninety-seven, the said ten cords of good fire-wood for each of the said two years, which, according to the 339 322 SUPREME COURT, STATE OF NEW YORK. 1800 form of the said covenants in those behalfs 323*] made as *aforesaid they ought to have done, and so the said John Frederick Ernst, saith, that they, the said Thomas Buchtel, Hen- rich Bartle, Jacob Millions, Jacob Camer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, in the lifetime of the said Thomas Buchtel, and they, the said Henrich Bartle, Jacob Millions, Jacob Camer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail, and Jonas Roschman, since the death of the said Thomas Buchtel, have not, nor hath either of them, kept with the said John Frederick Ernst the said cove- nants so made in those behalfs as aforesaid, but the same have altogether broken, to the dam- age of the said John Frederick Ernst of one thousand dollars, and thereof he brings suit,"&c. The defendants craved oyer of the articles of agreement, which were as follows: "In the name of our Great Shepherd Jesus Christ, Amen: We the subscribers, the trust- ees, elders, and deacons of the Evangelical Lutheran Church called St. Thomas, in Clav- erack district, in the County of Columbia, in the State of New York, and the trustees, the elders and deacons of the Evangelical Lutheran Church at Lunenburgh, in the County of Al- bany and State aforesaid, well knowing our deplorable situation without publishing of the word of God and cure of souls, as well among the old, as particularly among our young peo- ple, have, in firm reliance on the zeal, faithful- ness and diligence of the Rev. Mr. John Fred- erick Ernst, of Kutztown, Maxetawney town- ship, Berk's County, State of Pennsylvania, called him by virtue of our respective church offices and our duty in the name and with the consent of all the respective members of the Evangelical Church in the aforesaid our congre- gations, by these presents, to be our ordinary minister, teacher, curate of souls, and overseer of these our congregations, to preach, maintain and spread therein, publicly as well as pri- vately, the pure and sound evangelical doctrine, according to the foundation laid by the holy apostles and prophets, of which Christ Jesus 324*] is the corner-stone, and *our unaltered Augustan confession ; likewise to administer the two holy sacraments according to Christ's insti- tution, and with edifying sermons, which are to be preached on every other Sunday, in each of the aforesaid congregations, as much as God may grant him grace and strength to feed the sheep, and with edifying catechisations, during the summer season, the lambs of Jesus Christ; to visit the sick if it be made known unto, de- sired of, and is possible unto him; to attend on funerals, to instruct those in the sound princi- ples of the doctrine of our church, who for the first time shall be desirous to be admitted unto the table of our Lord; and lawfully to join in holy wedlock; likewise to administer his sacred office, in all cases whatsoever occurring, with- out regard to person or persons* so long as his doctrine and example shall prove to be accord- ing to the Word of God, and the general estab- lished rules of the American Lutheran Church, into which church rules both the respective vestries and congregations think themselves bound, and with Divine assistance will en- 340 deavor effectually to defend and assist their said minister therein, and in case of any dis- pute (which may God avert) happening, only to hear and adhere to the judgment of the most reverend ministry of New York; he shall likewise call a meeting of all the church officers of each of the aforesaid congregations, every three months in the year, to consult and put such regulations in force, as may by him and them jointly be thought most beneficial to the said congregations; he shall likewise preach in the Holland language, in the congregation of Lunenburgh, as soon as he finds himself capa- ble. " And since it is the command of our Lord and Great Shepherd, that they which preach the gospel should live of the gospel, equity likewise demands that our congregations, ac- cording to our church rules, see}t to procure temporal maintenance for their teachers: Therefore, we the subscribers, the trustees, elders and deacons, promise and bind our- selves and the successors in our respective church offices, with conjunction and consent of the respective *members of these our [*32/> congregations, firmly by these presents to pay, or cause to be paid unto our teacher, the Rev. Mr. John Frederick Ernst, yearly and every year, from the day of the date hereof, as long as he is or shall be teacher in the congregation aforesaid: Impi'imis, for the administration of public worship in our said congregations, the sum of one hundred pounds, current money of the State of New York, payable in gold or silver, to be paid unto him or his or- der in quarterly or half-yearly payments, according to the request 01 the said Parson Ernst, whereof each of the congregations aforesaid is to pay the equal sum of fifty pounds, together with the free and unincum- bered use and benefit of the parsonage house and lot of ground belonging to the church of Lunenburgh, now in possession of Mr. Anthony DeWitt, which said house and lot of ground shall, at the desire of Mr. Ernst, be put and kept in good tenantable order and re- pair by the congregation of Lunenburgh, further to find and provide him yearly with twenty cords of good firewood, whereof each of the said congregations aforesaid is to find and provide ten cords; further, two tons of food first crop hay, together with pasturage uring the summer season for one horse, together with fifty bushels of oats to keep the same in good riding order. We further agree with the said Parson Ernst to receive from all persons, who are members of the said congre- gations, the perquisites as are allowed by cus- tom in each of our respective congregations, for inscribing the names of children baptized in the record book kept for that purpose: it is further agreed that said Parson Ernst shall re- ceive from the parents of every child or other person the sum of four shillings, who shall especially be instructed previous to their ad- mittance to the communion. It is also agreed that said Parson Ernst shall receive for every solemnization of marriage between persons belonging to our respective congregations the sum of ten shillings, provided the same be per- formed at church or at his dwelling-house. Further, it is agreed, th^t said Parson Ernst shall receive eight shillings from every person JOHNSON'S CASES, 1. 1800 BROOKS v. PATTERSON. 326 326*] who *shall request and desire him to deliver a funeral sermon, on the mournful oc- casion of the death of any member of said con- gregation. It is further agreed, that the said Parson Ernst shall have four Sundays in each and every year for his own use, provided the same be not taken on a festival day, and two Sundays for attending on the yearly synod or conference held by his clerical brethren; all the above and each part thereof, we do hereby promise to perform, and testify to have agreed to, with the said Rev. Mr. John Frederick Ernst, in the name of the above said our con- gregations, signed with our hands and sealed with our seals this eighth day of October, in the year of our Lord one thousand seven hun- dred and ninety-one." The defendants then demurred, and assigned the following causes of demurrer: 1. That the defendants are a corporation, and the agreement was made with them in their corporate capacity, as trustees of the churches mentioned in the plaintiff's declara- tion, and the suit is brought against them in their natural and private capacities. 2. That the covenant on which the suit is brought, is not shown to be under the cor- porate seal of the defendants as trustees. 3. That the covenant is joint on the part of both congregations, and the action is against the trustees of one only. 4. That no request to pay is alleged in the declaration. 5. That the declaration states that the pay- ments were to be made quarterly or half-yearly, when it is not so expressed in the agreement. Per Curiam. With regard to the two first objections, it is sufficient to observe that it does not appear from the declaration, nor is it shown by the pleadings, that the defendants are a corporation, or capable of being sued as such. The names and additions by which they are described are a mere descriptio person- arum, and they remain liable only in their private capacities. Without such a construc- tion, the covenant would be nugatory and 327*] void; *and there is no reason to adopt a different one. They have affixed their private seals to the instrument, not a corpora- tion seal. Covenants may be taken distributively, ac- cording to the subject matter, although there be no express words of severally. The evi- dent intent of this covenant was, that each congregation should be separately liable for what they stipulated to pay; and that intent should be carried into effect, as far as the terms will admit. No more is claimed in this action than what may be severally demanded. The breach is not alleged as to anything that may be deemed a joint undertaking. It was not necessary to state a request in or- der to show a breach of the covenant. It is enough that it is alleged to be broken. The request is not a condition precedent. It is not a case in which a request is essential to the right of action. The bringing of the action is, of itself, the legal demand, and it was a duty which the defendants were bound to discharge without a demand. The request mentioned in the covenant re- lates merely to the election which the plaintiff JOHNSON'S CASES, 1. had to demand payment quarterly or half- yearly. The payment quarterly was for the benefit of the plaintiff. If not demanded quarterly, the defendants were bound, at all events, to pay half-yearly. We are of opinion that the demurrer is not well taken, and that the plaintiff must have judgment. Judgment for the plaintiff. Cited in 1 Wend., 231; 5 Daly, 142; Blatchf. & H., 420 ; 4 Mason, 227 (n). *BROOKS v. PATTERSON. [*328 1. Pleading By Attorney Of Privilege De- murrer. 2. Id. Id. Verification Special Bail. A plea of privilege, by an attorney, in abatement, concluding 1 his plea to the jurisdiction of the court, ought not to be treated as a nullity, but must be demurred to. Such a plea does not require an affi- davit, and it may be put in after special bail has been entered. THE defendant, being an attorney of this court, was sued and arrested as a common person. He appeared and entered special bail, and pleaded his privilege in abatement, and con- cluded his plea to the jurisdiction of the court, and not in abatement of the bill. The plea was not verified by affidavit. The plaintiff entered an interlocutory judg- ment regarding the plea as a nullity. It was now moved to set aside the judgment as irregular. Mr. Munro for the plaintiff. Mr. Hiker for the defendant. Per Curiam. An affidavit of the truth of the plea was not necessary in this case, and it may be pleaded after special bail is entered. As to the other objection, however it might be considered on a demurrer, we think the plea ought not to have been treated as a mere nullity. Let the judgment be set aide. Sale granted. CORP v. M'COMB. Negotiable instrument Protest On last day of Cfrace. A notice to the indorsee on the third or last day of grace, after a demand on the maker and his default, is good. THIS was an action by the plaintiff, as the indorsee of a promissory note, against the defendant as the indorser. A verdict having been obtained by the plaintiff, a motion was made in arrest of judg- ment, on the grounds that it was stated in the declaration that the notice to the indorser was given on the same day on which the demand was made of the maker, but after such de- NOTE. Negotiable paper, as to when notice of dis- honor to be given. See note to Bryden v. Bryden, 11 Johns, (this ed.), 187. 341 328 SUPREME COURT, STATE OF NEW YORK. 1800 mand and a default of payment by the maker. It was contended that the" notice ought to have been given on the subsequent day, and have been so alleged in the declaration. 329*] *Per Curiam. Notice to the indorsee on the third day of grace, after a demand made of the maker, and his default of pay- ment, is good. Its being earlier than is re- quired, cannot form an objection on the part of the indorser. Ride refused. Cited in-3 Wend., 171. STRANG . BARBER AND GRIFFIN. Bail Exoneretur Surrender within Eight Days in Term. If the bail surrender the principal, within eight days in term, after the return ot process against them, it is sufficient: and the exoneretur may be en- tered afterwards. THIS was an action against the defendant, as the special bail of J. S. On Saturday in the first week of the present term, the de- fendants surrendered their principal, and on that day obtained an order from the recorder of the city of New York, to show cause on this day why an exoneretur should not be entered on the bailpiece. The surrender thus made, was within eight days after the return of the capias against the defendants. Notice having been given for that purpose, it was now moved to stay the proceedings against the bail in this action, on the usual terms. It was insisted, on the part of the plaintiff, that the exoneretur on the bailpiece was neces- sary to be entered, as well as the surrender to be actually made, within eight days after the return of the writ, to entitle the bail to be discharged, and that the eight days had now elapsed. Per Curiam, The surrender was cemplete, and in time to entitle the defendants to have an exoneretur entered. The subsequent order and this motion were proper to put an end to this suit, when the plaintiff would not submit. Let the exoneretur be entered. Rule granted. 33O*J *DOLE v. VAN RENSSELAER. Slander Action Words Official. Words spoken of a person, in relation to his office of sheriff, and amounting to a charge of malprac- tice, are actionable. THIS was an action of slander, in which a general verdict was found for the plaint- iff. The declaration contained several counts, and the plaintiff being sheriff of the county of Rensselaer, the words were alleged in the decla- ration to be spoken of him in relation to his office of sheriff. The words charged in one of the counts, with proper innuendoes to show their applica- tion to the plaintiff, were as follows : " If his debts were paid, he would be worse than nothing; that he would fail or break be- fore long; that moneys which he had collected on execution he had taken and converted to his own use, and that they could not be got out of his hands." Mr. Woodworth, for the defendant, moved in arrest of judgment, contending that these words were not actionable, and that one count being bad, and the verdict general, the judg- ment ought to be arrested. Messrs. Bird and Riggs, contra. Per Curiam. The words are expressly charged to have been spoken by the defendant in relation to the plaintiff, in his office of sheriff, and such is their natural import. They amount to a charge of malpractice, and are, therefore, actionable. Rule refused. Cited in-1 Denio, 253 ; 3 N. Y., 178. * JACKSON, ex dem. PICKERT, [*331 . BACKER. Motion Notice Due Service. Service of a notice of a motion, by leaving it at the lodgings of an attorney, is not sufficient. It must be served personally, or be left in his office, or place of business. MR. BACKER, for the defendant, moved to strike out three of the demises contained in the declaration of this cause, on the ground of their being laid in the names of persons now deceased, and of a date so ancient as to over- reach the time when the title set up by the de- fendant accrued. The notice of the motion was served by leav- ing the same at a house where the plaintiff's attorney lodged. Per Curiam. The service was insufficient. To dispense with personal service on the attor- ney, the notice ought to have been left in his office, the place of his business, and not at his lodgings. Rule refused. NOTE. Slander, words spoken relative to an officer. Words not actionable in themselves are not so when spoken of one holding office unless they affect him as an officer. Kinney v. Nash, 3 N. Y., 177 ; Van Tassel v. Capron, 1 Denio, 250 ; Oakley v. Farring- ton, ante, 129 ; McGuire v. Blair, 2 Law Repository (N. C.). 443; James v. Brook, 9 Q. B., 7. Nor if the office has ceased at time of speaking. Forward r. Adams, 7 Wend., 204 ; Bellamy v. Burcn, 16 M. & W., 590; Gallney v. Marshall, 9 Ex., 294. 342 Particular words held actionable, see Craig v. Brown, 5 Blackf . (Ind.), 44 ; Hook v. Hackney, 16 S. 6 K. (Pa.), 385 ; Irwin v. Brandwood, 2 H. & C., 960 ; Lansing v. Carpenter, 9 Wis., 540 ; Lindsey v. Smith, 7 Johns., 360; Chaddock v. Briggs, 13 Mass., 253. See, also, Towshend on Slander and Libel, 286 ; Dol- loway v. Turrill, 26 Wend., 383. As to words spoken of one regarding his profes- sion or trade, see note to Foot v. Brown, 8 Johns., 50. JOHNSON'S CASES, 1. 1800 SEEKING AND VAN WYCK v. RATHBUN. 331 SEEKING AND VAN WYCK . RATHBUN. 1. Note Indorsed after Dishonor Defenses. 2. Judgment By Confession. Where a note is indorsed after it is dishonored, the maker may set up every equitable defence in an action by the indorsee, which he might have done against the payee ; but if the maker has confessed judgment on the note, the court will not set aside the judgment, in order to let in such equitable de- fence, especially where the parties are in part de- Itotn. THE plaintiffs were holders of a promissory note given by the defendant for the pur- chase money of lands in this State, bought by him from the payee, under a title derived from the State of Connecticut. The note was in- dorsed to the plaintiffs after it fell due, who brought this action, in which the defendant .had confessed judgment. Mr. Burr, on an affidavit stating these facts, moved to set aside the judgment, and to be let into a defence, on the ground that the consid- eration of the note was illegal, according to the determination of the Court of Errors, at their last session, in the case of Woodioorth and RatJibun v. James and Dole, and that as the plaintiff received it after it was dishonored, he took it subject to every equitable defence as between the original parties. Mr. Biggs, contra. Per Curiam. The note being indorsed to the plaintiffs, after it was dishonored, the defend- 332*] ant no doubt had a *right to make very defence against them which he might have set up against the payee ; but he has con- fessed judgment, and admitting the decision of the Court of Errors to have been made on the ground stated by the defendant's counsel, both the parties, as to the original transaction on which the note was given, were equally culpa- ble, and in pan delicto, and the court will not, therefore, interpose in favor of either. Rule refused. Cited in-1 Cow., 396 ; 5 Wend., 601 ; 2 Duer, 643. EAGLE v. ALNER. 1. Motion for Judgment Verdict Subject to Opinion of Court Points Reserved Case Made. 2. New Case Substitution Amend- ments. When a verdict is taken subject to the opinion of the court on points reserved, the plaintiff must make up the case, and have it settled, and cannot move for judgment, because no case is made. The right of proposing amendments to a case made, does not authorize the party to substitute a new case. ON the trial of this cause a verdict was taken for the plaintiff, subject to the opinion of the court on certain points which were re- served. NOTE. Negotiable paper, as to indorsement after maturity. See note to Johnson v. Bloodgood, ante, 51. JOHNSON'S CASES, 1. No case having been settled, Mr. Munro moved for judgment on the verdict. Per Curiam. It is incumbent on the plaint- iff to make up the case, and if amendments are offered, to have it settled. The points re- served must be disposed of before he can have judgment, and the motion is therefore denied. On a representation of the proceedings of the parties relative to the case proposed to be made, the court said that where a case is made by one party, and intended to be amended by the other, the right of amending will not au thorize a new case to be made by way of a sub- stitute for the first. Rule refused. *CAHILL v. DOLPH. [*333 Justice Jurisdiction Amount of Demand Balance Claimed. Justices may inquire into demands to the amount of $200, if the plaintiff claims no more than a bal- ance of $25 : and the declaration may state a debt or demand to the amount of $200, provided it con- cludes with demanding damages to $25 only. I N error on certiorari. . By the justice's return, it appeared that the plaintiff in the action before him, who is the defendant in error, declared in assumpsit, with two counts, in each of which he stated that the defendant below was indebted to him in $27.50, but concluded the declaration to his damage of $25 only. It also appeared that the defendant below, in some shape or other, resisted the plaintiff's demand, upon which a trial by jury was had, but no issue was formally joined. Mr. Biggs, for the plaintiff in error, relied upon two objections: 1. That no issue was joined before the jus- tice, and that, therefore, the verdict and judg- ment before him were erroneous. 2. That the sum in each count of the decla- ration exceeded the jurisdiction of the justice. Mr. Bowman, contra. Per Curiam. The joining a formal issue before a justice is not material. It is sufficient if it appear to have been substantially done, which is the case here. As to the second objection, a justice has jurisdiction to the amount of $200, provided the balance claimed do not exceed $25. Regu- larly, the plaintiff ought to state in his declara- tion the credit to reduce it to that sum, which in the present case is not done, but he concludes to his damage of $25 only. It is therefore an objection of form, and not a substantial error, for which the judgment below ought to be re- versed. Judgment affirmed. Cited in 12 Johns., 435 ; 1 Wend., 441 ; 4 Barb., 366. 84S 334 SUPREME COURT, STATE OP NEW YORK. 1800 334*] *ELLIS v. HAY. Sail Surrender Application Time. Bail have eight days in term after the return of the capias against them, within which to surrender their principal, and an application for leave to sur- render before the expiration of that term, is unnec- essary and premature. THE defendant was sued as the special bail, or manucaptor of I. S. and the capias against him, on which he was taken, was re- turnable on the last day of the preceding term. Mr. Wilkim, on behalf of the defendant, moved for leave to surrender the principal, and to stay the proceedings in this suit, on the usual terms. Per Curiam. The application is premature. The defendant, by the practice of the court, has a right to surrender his principal, until eight days in term have elapsed after the return of the writ. This being the first day of the term, the defendant does not stand in need of our interference to make the surrender. If that be made in time, the proceedings in this suit will be stayed, of course, on a proper ap- plication for the purpose. Rule granted. BROWER v. KINGSLEY. 1. Reference To Report with Certain Time 2. Id. To Three Persons Report of Two No Notice to Third. Where the rule of reference in a cause requires the referees to report within a particular time, the power of the referees is at an end, if they do not report within the time limited. Where a cause was referred to three persons, and two of them met and made a report, without giving 1 notice to the other to attend, the proceeding was held to be irregular, and the report was set aside. cause was referred, by consent, to ref- erees, and the rule was special, requiring them to hear the parties, and report within a specified time. The referees heard the parties, and, after- wards, two of them, subsequent to the time limited in the rule, and without notifying the third, convened, and made their report in favor of the defendant. Previous to making the report, the plaintiff also, by writing, re- voked the authority of the referees. Mr. Pendleton, for the plaintiff, moved to set aside the report on the following grounds: 335*] *1. That the power of the referees was at an end by the limitation contained in the rule which was entered by consent. 2. That their conduct was irregular in not NOTE. That referees cannot act unless all be present. See Mclnroy v. Benedict, 11 Johns., 402 ; Harris v. Norton, 7 Wend., 534; Jackson v. Ives, 22 Wend., 637 ; Eames v. Eames, 41 N. H., 177. See, also, Daniels v. Ripley, 10 Mich., 237 ; Battey v. Button, 13 Johns., 187 : Clark v. Fraser, 1 How. Pr., 98 ; Yates v. Russell, 17 Johns., 461. Expiration of time given in which to report. See Buntain v. Curtis, 27 111., 374; White v. Kemble, 2 Pen. (N. J. L.), 461 ; McClure v. Shroyer, 13 Mo., 104; Thiesselin v. Rossett, 3 Abb.Pr. N. S.,54; Keller v. Suttrick, 22 CaL, 471. giving notice to the other referee to deliberate and act in conjunction with them. 3. That it was competent for the plaintiff to revoke the appointment of the referees, although he might thereby subject himself to a contempt for disobeying the rule of this court. (3 Vin. Ab., 131.) Mr. Coleman, contra. Per Curiam. We are of opinion that the power of the referees expired with the time limited in the rule, and that the conduct of the two referees was irregular, in not meeting with the other to deliberate together, or giving him notice and an opportunity so to do. His as- sistance might have changed their opinion, and produced a different result. Let the report be set aside for irregularity, with costs. Rule granted. Cited in 10 Abb. N. S., 285. HAINES ET AL., Demandants, v. BUDD, Tenant. Ejectment Pleadiny Special Importance View of Premises. Citation Ante, 237. Where on a writ of right, a special imparlance is granted, to the first day of the next term, the tenant is bound to plead on that day, and is not allowed until the quarto die post. The demandant is entitled to have a view of the premises, as of course. : a writ of right. At the last term, a special imparlance was granted to the tenant until the first day of this term. Mr. Monro now moved that the tenant be called and plead, or that his default be entered. Mr. Riggs, for the tenant, submitted whether he was bound to plead until the quarto die post of this term. Per Curiam. The tenant is bound to plead on this day. The tenant having pleaded, Mr. Munro thereupon prayed a view of the premises, which was opposed on the part of the tenant. The court said that the demandant was entitled to have the view of course. (See ante, p. 237.) *THE PEOPLE v. VALENTINE. [*33G Certiorari Indictment for Nuisance No Rec- ord of Conviction Writ to Abate. On the return of a certtorari, to the oyer and tor- miner, of the proceedings in the case of an indict- ment for a nuisance, this court refused to interfere on a motion for a writ to prostrate the nuisance, until a record of conviction was regularly made out and returned. rPHE defendant was indicted for a nuisance, JL at a court o.f oyer and terminer in the JOHNSON'S CASES, 1. 1800 SILVA v. Low. 33ft County of Westchester, convicted and fined. The proceedings were now brought up by cer- tiorari into this court, and Mr. Golden, on behalf of the people, 'moved for a writ to the sheriff, commanding him to prosecute the nuisance, &c. A formal record of the convic- tion did not appear. Per Curiam. Whatever may be the merits of this application, we cannot interfere until the record be regularly made out and returned. Rule refused. , SILVA v. LOW. New Trial Second Trial Decision Disregarded Third Trial. Where the jury on a second trial find a verdict against the decision of the court, on the former motion for a new trial, on a point of law, the court will grant a rule for a third trial. THIS case came up on a motion for a new trial, after a second trial, on which the jury had given a verdict for the plaintiff as before, upon evidence substantially the same. (See ante, p. 184.) On the part of the plaintiff it was insisted that this was a second verdict on the question of fact, and ought to conclude. For the defendant, it was contended that the evidence being materially the same, the finding of the jury was an attempt to overrule the de- cision of this court on the questions of law formerly determined, arid therefore ought not to prevail. Messrs. B. Livingston, Burr, and Harison, for the plaintiff. Messrs. Troup and Hamilton for the defend- ant. Per Curiam. The jury, in finding this verdict, must have intended to disregard the determina- tion of this court on the questions of law pre- viously settled, and their verdict must there- fore be considered as against law. It could 337*] *not have been found in conformity to the opinion of the court as formerly de- livered, unless we suppose the jury to have been governed by conjectures or circumstances too trivial to be mentioned. We therefore think that the verdict ought to be set aside, and the costs to abide the event of the suit. LANSING, Ch. J. , and LEWIS, J. , dissented. New trial awarded. GOIX v. KNOX. Marine Insurance "Against all Risks." Where a policy of insurance contains the written clause, "against all risks," it protects the insured against every loss happening during the voyage, except such as may arise from his fraudulent acts. THIS was an action on a policy of insurance, dated the 21st of February, 1798, upon all kinds of lawful goods in the ship Minerva, on JOHNSON'S CASES, 1. a voyage from New York to Guadaloupe, val- ued at $5,500. The premium was ten per cent. , and besides the usual risks enumerated in printed policies, it was declared, by a cause in writing, that the insurance was to be "against all risks." The policy contained no warranty. The cause was tried at the last circuit held for the City and County of New York, before Mr. Justice Benson, and a verdict was found for the plaintiff, subject to the opinion of the court on the following case, with liberty to either party to turn the case into a special ver- dict: The policy was admitted. It was also ad- mitted or proved, that the Minerva, in the prosecution of the voyage insured, was capt- ured on the 2d of April, 1798, by a British ship of war, and carried into the island of An- tigua, where she and her cargo were both libelled in a court of vice-admirality, and con- demned as lawful prize to the captors, no rea- son for the condemnation being assigned in the sentence. The plaintiff had property on board to the amount of $14,639.55, for which the captain had signed a bill of lading in his favor. *The plaintiff was naturalized as a [*338 citizen of the United States, on the 2d of August, 1796; and before he was so natural- ized, he was a subject of the Swiss Cantons, of which he is a native. The plaintiff abandoned to the underwriters on the 10th of June, 1798, and at the same time exhibited the usual proof of loss and interest. By the proceedings in the Court of Vice- Ad- miralty of Antigua, which were produced on the trial, it appeared that the Minerva had on board, when captured, the following papers, to wit: 1. An American register, in the name of the plaintiff only. 2. An affidavit of the plaintiff, taken before a notary public in New York, dated the 1st of March, 1798, that he was the true and lawful proprietor of all and singular the goods, wares and merchandises shipped by him on board the Minerva, as specified in the two bills of lading and invoice thereto annexed, amount- ing to the sum of $14,639.55, and that no sub- ject of any of the present belligerent powers, br any other person or persons, was or were directly or indirectly interested or concerned with him in the said goods, or any part there- of, the same being shipped solely for his ac- count and benefit, and at his risk. To this af- fidavit were annexed two bills of lading, both filled up in favor of the plaintiff, and one in- voice. The goods in one of the bills of lading corresponded with the invoice, and amounted to the value insured. There was no invoice in the name of the plaintiff accompanying the other bill of lading, but among the admiralty papers there appeared, besides the bills of lad- ing and invoice already mentioned, another bill of lading, and an invoice corresponding with it, in the name of Benjamin F. Haskin. This bill of lading in fa\ r or of Haskin agreed, in all respects, with the one in favor of the plaintiff, which was not accompanied with an invoice. 3. An affidavit made by Haskin, on the 1st of March, 1798, before a notary public, that 345 338 SUPREME COURT, STATE OP NEW YORK. 1800 he was the sole owner of the goods con- tained in the last-mentioned invoice, and in 339*J *the bill of lading in his favor, and that no citizen or subject of the present bellig- erent powers had any part or portion therein, directly or indirectly. 4. A manifest of the cargo signed by the captain, which corresponded with the goods specified in the two invoices above mentioned, and sworn to before a iiOtary public in New York. 5 A sea-letter, granted by the President of the United States to the master of the Minerva, in the English, French, Spanish, and Dutch lan- guages, specifying the voyage, and the arti- cles on board, with the usual certificates of the consuls of those nations. 6. Another bill of lading and invoice of goods, in favor of Jacop Fintado, a natural- ized citizen of the United States. 7. A clearance from the custom-house at New York, dated the 28th of February, 1798. 8. A passport for the Minerva as an Ameri- can ship, signed by the President, and coun- tersigned by the Secretary of State, and the collector of the customs of New York. 9. A Roll of the crew, by which it appeared that all the crew, consisting of thirteen, were native Americans, excepting three; one of whom was a Prussian, another a Frenchman, and a third a Chinese. This roll was sworn to by the master, before a notary public, stat- ing that all the crew were native or natural- ized citizens of the United States; but in the roll it was also stated that one of the crew was a subject of the King of Prussia; that an- other was a subject of the republic of France, and a third a subject of the emperor of China. This roll was duly attested by the collector of New York, and certified by the French and Spanish consuls. 10. The depositions of the master, and the first and second mates; by which it appeared that the Minerva, when taken, had no colors but American, and that she made no resist- ance. By the master's deposition, it appeared that he signed bills of lading for the cargo 34O*] of the ship, as the *property of Haskin and the plaintiff. That all the bills of lading were presented to him by the plaint- iff, which he signed and delivered to him again. *. B. Livingston and Burr for the plaintiff. Me.$rs. Troup and Harison for the defend- ant. Pei- Curiam. In the present case there is no warranty, either express or implied, nor any representation that the ship or goods were neutral property; and besides the usual risks inserted in printed policies, this policy de- clares that the insurance is to be "against all risks." This expression is vague and indefinite, but if we allow it any force, it must be consid ered as creating a special insurance, and extend- ing to other risks than are usually contemplated. We are inclined to give it a liberal construc- tion, and apply it to all losses, except such as arise from the fraud of the insured. This lim- itation is necessarv and proper, for it cannot 346 be supposed that the plaintiff was to be in- sured against his own fraudulent acts. The terms used are sufficiently broad to compre- hend every other loss. With this construc- tion, whatever may be the effect of the sentence of a fereign court of admirality in ordinary cases, it will not interfere with the plaintiff's right of recovery in this. Much reliance was placed by the defendant's counsel on the extra bill of lading, annexed to the plaintiff's affidavit, and found among the ship's papers, which, it was contended, was false and colorable, and tended to enhance the risk. We think it could not have that ef- fect. On the face of the papers, it was plain- ly a mistake, and the other documents accom- panying the property were calculated to lessen the risk, and preclude every idea of intention- al fraud. We are, therefore, of opinion that the plaintiff is entitled to recover. Judgment for tlie plaintiff. Cited 2 Johns. Cas., 78, 150, 480 ; 2 Caines* Gas., 221 ; 7 Johns., 46 ; see 2 Johns. Cas., 480. *GOIX v. LOW. [*341 1. Marine Insurance Warranty "American Ship." 2. Prize Sentence of Foreign Court. 3. Evidence. 4. Proper Documents Devia- tion. If a vessel is described in a policy as an "American ship," it is an implied warranty that she is Ameri- can. A sentence of a foreign court of admiralty condemning 1 a vessel as good and lawful prize, with- out assigning any reason, is to be considered as proceeding on the ground of its being enemy's property. Such a sentence is conclusive evidence of the breach of warranty by the assured. (See ante, p. 16, and contra, Vandenheuvel v. United In- surance Company, in error, post.) Qucere, If the negligence or the assured in not having proper doc- uments on board, or having contradictory papers, in consequence of which the ship is taken out of her course, amounts to a deviation ? Citations 1 Park, 362 ; Ante, 16 ; Doug., 10 ; 7 Term R., 705 ; Str., 733 ; 2 Wood., 455, 7 TermR., 523 ; 2 Ersk., 7a5; Kaimcs Eq., 366; Grotius, 1. 3, c. 2, s. 5; Vattel, 1. 3, 84-85; Martens, p. 104, 105; Doug., 1; Doug., Addenda; 8 Mod., 311; Park., SJ8, 360; Park., 195; Park., 365 ; 3 Johns. Cas., 337 ; Cowp., 785 ; Park., 322 ; Park., 177 ; Doug., 575 ; 7 Term R., 523. THIS was an action on a policv of insurance "on the American ship Minerva," on a voyage from New York to Guadaloupe. The cause was tried at the last sittings in New York, when a verdict was found for the plaintiff, subject to the opinion of the court, on a case made between the parties, with lib- erty for either party to turn the same into a special verdict. The policy was dated the 10th of February, 1798, and subscribed by the defendant, as president of the United Insurance Company, for $10,000. The ship was valued at $13,000. The policy was in the usual printed form. The other material facts in the case were the same as stated in the preceeding case of Goix v. Knox. JOHNSON'S CASES, 1. 1800 Goix v. Low. 341 Messrs. B. Livingston and Burr for the plaintiff. Messrs. Troup and Hanson for the defen- dant. RADCLIFF, J. This is the case of a policy on the ship Minerva, on a voyage from New York to Guadaloupe. The risks specified in the policy are of the usual kind. There is no express warranty that the ship was neutral; but she is stated in the policy to be an Ameri- can ship. She was captured on the voyage insured, by a British privateer, carried to the island of Antigua, and there libelled and condemned in the Court of Vice-Admiralty, as a lawful prize, no reason for the condem- nation being stated in the sentence. It ap- pears that the papers of the ship were regular, and such as were requisite to entitle her to the privileges of an American ship; that the plaintiff was the owner; that he is a native of one of the Swiss cantons, and that, on the 3d August, 1796, he was naturalized as an Ameri- can citizen. He has abandoned to the under- writers, and claims a total loss. It does not appear on what particular ground, or on what evidence the Court of Ad- miralty proceeded. The ship's papers were in possession of that court; but if nothing else appeared, there could exist no circumstance 342*]*of fraud or suspicion, unless the irreg- ularity of one of the papers, I mean the su- pernumerary bill of lading, be considered as such. If it rested on that alone (which proba- bly arose from inadvertence or mistake), I should think the condemnation unjust, and that the insured, if at liberty to examine it, ought not to be affected by it. The case still presents three questions to be determined: 1. Whether the expression contained in the policy, naming her the American ship Miner- va, amounts to an implied warranty of the fact. 2. Whether the sentence of the Court of Admiralty is to be considered as proceeding on the ground of her not being neutral prop- erty. 3. Whether, proceeding on that ground, the sentence is to be deemed conclusive against the plaintiff. On the first point, I can entertain no doubt. It was evidently material to risk, whether the ship was American, and, therefore, a neutral ship; and a representation of that fact, wheth- er in the policy or otherwise, if untrue, must discharge the underwriter. It is a fact resting in the knowledge of the insured, for which he ought to be responsible. (Saloucciv. Woodmass, Park, 362.) Being inserted in the policy, it becomes a part of the written agreement, and effectually concludes him if he cannot main- tain it. As to the second question, I think the sen- tence is to be considered as proceeding on the want of neutrality. Its silence will not author- ize a different conclusion. Enemy property forms the general ground for condemnation. If founded on a special or different ground, it would probably have been stated, or might be made to appear from the libel, or the proceed- ings upon it, to which it must have referred. No other being shown, an extraordinary cause of condemnation cannot be presximed. JOHNSON'S CASES, 1. This interpretation of silent sentences was adopted in the case of Saloucei v. Woodmass, and appears to be natural and just. The third question has already been deter- mined against the insured, in the case of Lud- low v. Dale (ante, p. 16), and I consider it un- necessary to review that decision. *I am therefore of opinion that the [*343 plaintiff ought not to recover. KENT, J. The ship insured in this case was described in the policy as the American ship Minerva. She was captured in the prosecu- tion of her voyage by a British ship of war, and carried into the island of Antigua, and condemned as lawful prize. Several questions arise upon this case. 1. Whether the above description amounts to a warranty that the ship was American property. 2. If it does, then whether the condemna- tion is evidence of a breach of it. 3. If it does not, then whether the facts in the case do not prove a deviation to have taken place in the course of the voyage. There are no precise words which have been held requisite to create a warranty. It is a written declaration upon the face of the policy, of a fact in respect to the subject in- sured. A naked insertion in the margin of a policy of these words, "thirty seamen besides passengers," has been adjudged to amount to a warranty. (Doug., 10.) If the word "Amer- ican" had been written in the margin of the policy against the name of the ship, it must have been equally operative with the words "thirty seamen." They are equally allega- tions of a fact relative to the subject which the insured ought to be held equally to prove. The word "American" cannot have less force for being incorporated with the description of the ship in the body of the policy, than if it stood solitarily in the margin. Allegations of this kind may, perhaps, attract more or less attention according to their position in the instrument. But in the construction of writ- ten contracts we are to presume that the atten- tion of the parties has been alive and active throughout the whole instrument, and that no averments are any where inserted without mean- ing and without use. The ship was captured on the high seas, and condemned as lawful prize. She could not have been lawful prize, except upon the ground that she was not an American ship, or that she had in some manner forfeited her immunities *as such, and in either [*344 case, if such was the fact, the warranty was not fulfilled. (7 Term Rep., 705.) And that this must have been the case, I consider as conclusively proved by the sentence of con- demnation in the Court of Vice-Admiralty. The conclusive effect of such sentences was admitted and declared by this court in the case of Ludlow v. Dale, in the January Term, 1799 (ante, p. 16), and although the merits of the question there decided have been permit- ted to be reconsidered and re-argued in this cause, I still think the decision to be sound. The true principle of the law is that where a fact has been litigated and decided by a court having jurisdiction of the case, and has be- come a res judicnta, that decision will con- 347 344 SUPREME COURT, STATE OF NEW YORK. 1800 elude the parties, and each of them, in all other courts, and for this reason, that the point is decided by a court of competent au- thority. I cannot believe in the suggestion made upon the argument, and this principle, which appears to be deeply engrafted into each of the systems of English jurisprudence (Str., 733; 2 Wood., 455; 7 Term Rep., 523, 681; 2Ersk, Inst., 735; 2 Kaimes' Eq., 366), has, as it respects the sentences of foreign courts, been moulded and extended from reasons of State, or in furtherence of their particular interests as a commercial nation. The dignified character of their courts of justice (I speak of their higher courts of law and equity), which have maintained their in- tegrity, and protected right to a degree never before witnessed in the history of civil society, is sufficient to repel the force of such an un- founded insinuation. Nor, indeed, is the doc- trine peculiar to the English law. It consti- tutes an important item in the code of public law; and is sanctioned by the usage and courtesy of nations. This leads me to a new and more interesting view of the question. If the subjects of one government be ag- grieved by unjust judgment in the courts of another, it is not a case of judicial redress. The party aggrieved ought first to seek relief by appeal to the courts of review in the last resort, and if justice be still denied him, he must then lay his case before the sovereign of 345*] his own country. The injury *be- comes a concern of his government, and a ground of national interference, and eventual reprisal. But the case of public interference, as Grotius observes (1. 3, c. 2, sec. 5), must be m re minime dubia et plane contra jus ; for in all dubious cases the presumption is in favor of the judgment. Gronovius (Ibid,) confirms this doctrine, and observes that where there is not manifest injustice, the judges are to be re- garded as honest men, and their judgments as truth, ubi non est manifesto, injustitia judices habentur pro bonis viris, ut judicatum pro veri- tate. The same doctrine is advanced by Vattel (1. 3, sec. 84, 85), and Martens (pp. 104, 105), and by the English judges, in their answer to the memorial of Prussia; they all express themselves in a very emphatic man- ner as to the definitiveness of the decisions of foreign tribunals having competent jurisdic- tion. An important distinction prevails upon this subject both in Great Britain and upon the Continent, and it ought to be kept in view in all the discussions upon the question. No sovereign is obliged to execute within his do- minions a sentence rendered out of it, and if such execution be sought by a suit upon the judgment, or otherwise, he is then at liberty in his courts of justice to examine into the merits of such judgment. And yet in the case of a suit to obtain the effect of a foreign judgment, the rule is that the judgment shall be presumed right, and it shali lay with the opposite party to show cause against it. But if a judgment has been pronounced and carried into effect by a competent forum, no foreign court will admit of a fresh litigation, at the instance of either party, upon a fact once in issue and decided. The plea of the foreign judgment will be a bar to the second action. 348 The action is excluded by what is termed by civilians exceptio rei judicatce. (Martens' Law of Nations, 105 ; Ersk. & Kaimes, ut supra ; Doug. 1 ; and Galbraith v. Neville, cited in ad- denda to Doug. ) In the present case, the question now raised, whether the Minerva was an American ship, was the very question raised *and [ *346 decided against the present plaintiff, by the court at Antigua He was a party to that suit, and had, by himself, or his agent, due notice and due opportunity to make his defense. That court had the competent jurisdiction to try the question, and the party is bound by its sentence, with a reservation of his right of ap- peal. If he does not appeal, he must be con- sidered as acquiescing in the justice of that sentence. We are to regard it as the evidence of truth, res judicata pro veritate accipitur. The peace of society, the interests of national intercourse, mutual urbanity, and the neces- sity that litigations should cease, renders the rule as salutary as it is extensive. But if the court were now to depart from its former decision on the question, there is another ground to be taken in this case, and which I apprehend to be sufficient to prevent a recovery. The ship had contradictory papers on board, and that fact was a sufficient cause for bringing the -vessel in for adjudica- tion. These contradictory and colorable papers, I admit and believe, originated in the mistake of the plaintiff; but insurers are not liable for losses arising from mistakes of the owner or master. A laches of the plaintiff, if it be the cause of a seizure, will avoid the pol- icy, as for a deviation. These papers, I also admit, were susceptible of explanation; but in the moment and hurry of detention and in- spection on the high seas, dum fervet opux, there is not leisure for an accurate examina- tion of contradictory papers, and the belliger- ent is perfectly justifiable in sending in the vessel for a judicial inquiry. This departure of the vessel from her regular course is not a justifiable deviation, provided the via majm:, by which it was produced, proceeded from the neglect of the owner. And as in this case, the contradictory papers which justified the seizure, proceeded from the want of due atten- tion in the plaintiff, he must be considered as the cause of that seizure and deviation, and he has thereby discharged the insurer. I am accordingly of opinion that the de- fendant is entitled to judgment. *BEXSON, J., concurred in theopin- [ *347 ion delivered by Kent, J., on the last point, and thai the defendant was, therefore, entitled to judgment. He gave no opinion on the other points. LEWIS, J. Two questions arise in this cause. 1. Whether the term " American ship," ap- plied to the Minerva in the policy of insur- ance, amounts to a warranty ? 2. If it does, is her condemnation, in a prize court of a belligerent power, conclusive on the question of neutrality? All contracts are to be construed according to the intent of the contracting parties, so as to give complete effect to such intent, if it may be done, consistent with the rules of law. JOHNSON'S CASES, 1. 1800 Goix v. Low. 347 The contract of insurance is to be most liber- ally expounded for the attainment of this end. The first inquiry then is, whether the words "American ship" amount to a warranty within the meaning and intention of the par- ties. To constiute a warranty, the stipulation must be on the face of the policy, but it does not thence result that every assertion there found is a warranty. There appears to me a clear distinction between terms intending to designate with precision the subject matter of the contract and those which form an express warranty or condition. The one constitutes a substantive ground of insurance, the other is a mere quality of the subject, inserted for the sole purpose of identification. Their effects, also, are variant; for while the one, perhaps, ought to be construed most rigorously against the party bound by it, and, therefore, to be true, in the most extensive latitude in which the contract can be affected by it, it shall, in regard to the other, be taken to be true, in its most simple and common sense. Thus, where a ship is expressly warranted American, the construction shall be that she is warranted as entitled to all the privileges of neutrality. But where, in the ordinary part of the policy, among her distinguishing qualities, she is styled American, if she is so, in the ordinary accepta- tion of the term, and in common understand- 348*] ing, *it shall suffice. This construc- tion is not repugnant to the rules of law, and it only remains to ascertain the intent and meaning of the parties, which, in every case, must be drawn from the particular circum- stances. In the present case, we find the ex- pression connected with, and standing among the descriptive terms of the subject. It is not inserted in the mode in which the defendants are accustomed to introduce warranties. We are to suppose that it produced no deduction from the ordinary rate of insurance; for if it had, the underwriters would undoubtedly have shown it, and this would have been conclusive as to the intent. It may be likened to the case of estoppels : a particular recital or aver- ment shall estop, a general recital shall not, as in the case of Skipwith v. Green (8 Mod., 311 ), calling lands meadow, in a lease, shall not estop, but the party may show them to be arable. In the policies on the goods, also,' which are to a greater value than that on the ship, there is no warranty, which is an addi- tional circumstance explanatory of the inten- tion of the parties. The commercial law of most nations is ad- justed to the principles of their peculiar policy. America, growing into commercial importance, should not be inattentive to this fact. And as the business of insurance will soon become to her an important commercial object by reason of foreigners procuring policies to be effected here, it is of the highest importance to preserve the strictest good faith, to show as little dispo- sition to cavil and to raise as few difficulties in the adjustment of these contracts, as we feel ourselves bound to do in our other foreign en- gagements. I can find no British law which impugns the distinction I have stated ; the case of Bean and Stupart (Doug., 10) is by no means against it. For the insertion there in the margin, purported to be a warranty, from the very manner of its introduction. JOHNSON'S CASES, 1. I might rest my opinion on this single point, but as the other is of great importance, and as it is stipulated that either party may turn the case into a special verdict, it *may be [ *349 desirable that an opinion should also be ex- pressed on the other question. How far the sentence of a foreign court shall be conclusive upon the parties to a con- tract of insurance, in deciding a question of neutral property, is an interesting inquiry. The British adjudications do not, in my opin- ion, place the question out of doubt. In Bar- zittay v. Lewis (Park, 360), Lord Mansfield ob- serves that no nation is bound by the particu- lar regulations of belligerent powers, unless they are agreeable to the general laws of nations, but that all third persons and mer- cantile people are, and that the assured, by his warranty, takes the knowledge of the circum- stances on himself. In Easter term following, in the case of Mayne v. Walter (Park, 195), he declares a particular ordinance of France arbi- trary and oppressive, contrary to the laws of nations, and as both parties were ignorant of it, the underwriter must run all risks. (Park, 365.) In Saloucciv. Johnson, Mr. Justice Bul- ler declares that a ship is only bound to take notice of the laws of the country she sails from, and of that to which she sails, but not of the particular ordinances of other powers. These opinions are, to me, contradictory and irreconcilable, and nothing conclusive can be inferred from them. If we resort to writers on the law of nations, the only authority which I can find, notwithstanding the refer- ences are many, is that of Grotius (B. 3, ch. 2, sec. 5), and his commentators, and it ap- pears to me rather to oppose than to affirm the doctrine. His words are, " That in doubtful cases the presumption is in favor of the judges established by public authority; but in a case admitting of no doubt, where sentence shall pass plainly against right, it is a just cause of reprisal, for that the authority of the judge is not of the same force against strangers as sub- jects." Park, in his comment on the cases above cited, observes that if the sentence be so am- biguous and doubtful that 1t is difficult, to say on what ground the decision turned; or if there be color to suppose that the court abroad proceeded upon matter not relevant to the point in issue, *evidence will be [*35O allowed in order to explain; and if the sen- tence on the face of it be manifestly unjust or founded on ordinances which form no part of the law of nations, it is a risk within the poli- cy. With these qualifications, the rule that where the foreign sentence appears to have proceeded on the point in issue between the parties, or is general, without any special ground being stated, it shall conclude the question of neutrality, though not perfectly unobjectionable, is less liable to exception. To apply it, thus qualified, to the case before us. " No reason is here assigned in the sentence for the condemnation. But looking into the testimony on which the sentence is grounded, we find abundant reason to sup- pose, nay, I may say conclusive evidence, that the foreign tribunal proceeded on matter not relevant to the question of neutrality. If we are to respect these foreign adjudications, and 349 350 SUPREME COURT, STATE OF NEW YORK. 1800 to presume that they are agreeable to the jus gentium; if we are to believe that an American citizen, in a British provincial court of vice- admiralty, in a controversy with a British subject, where too often the judge is a party in the cause, will meet with impartial justice, we must suppose that our laws and our regu- lations will be also there respected. Accord- ing to the laws of the United States, this ship was, to every intent, American, and the evi- dence of her being so was fully before the Court of Vice- Admiralty. To that court were produced her register, which was American, and in the name of the plaintiff only; a sea- letter, granted by the President of the United States, accompanied with certificates from the Dutch, Spanish, French and English consuls, declaratory of the voyage, and the articles on board; a clearance from the custom-house at New York; a passport, declaring her Ameri- can, signed by the President of the United States, and countersigned by the Secretary of State and the collector of the customs at New York; a roll of the crew, from which it ap- peared that all except three were native Amer- icans: and lastly, the testimony of the master and mates, that she had none but American colors. Can we suppose that a judge was to 351*] *be found in any civilized country, who in the face of such testimony, uncontradicted, would say this was enemy's property? In justice to a judge who could pronounce such a decision, we must conclude that his opinion was founded on the extra bill of lading men- tioned in the other cause of Gotx v. Knox, to which we are referred, and, therefore, the question of neutrality is not affected by it. It is evident that the annexation of this bill to the affidavit and invoice was the effect of mistake, and, considered under all its circumstances, by no means fell under the description of false or colorable papers. But had the fact been otherwise, as they respected a portion of the cargo only, amounting to little more than half its value, there is no principle of the law of nations, or of the maritime law of Great Britain, by which such a circumstance can be extended to affect the ship, so as to render her a lawful prize. The Court of Vice-Admiralty, therefore, proceeding on this ground, has manifestly erred, and such error is a risk with- in the policy. My opinion, therefore, is that thepostea must be delivered to the plaintiff. LANSING, C7t. J. Two points have been presented for the decision of the court. 1. Whether the description contained in the policy, " the American ship called the Miner- va," is, in construction of law, a warranty that she was American property. 2. If it is a warranty, whether proof is now admissible, notwithstanding the condemnation, that the vessel was American. The description of the subject insured is an essential part of the policy. An untrue de- scription may tend to mislead and induce an unfounded estimate of the risk, intended to be insured against. The notes in the margins of the policies in the case of Pawson v. Wateon (Cowp., 785), and Bean v. Slupant (Park, 322), were construed warranties, solely on the ground of their being considered part of the 850 policies. It would seem that it is to be in- ferred from those cases that every description of the subject insured must be strictly and *literally true, for so is the doctrine of [*352 warranty, and that, if it is not perfectly cor- rect, the policy, as in the case of all other warranties, is void ah inttio. The construction that every description im- porting a designation of the condition of the thing insured, as distinguished from and added to its mere identification, should be deemed a warranty, would, perhaps, be more conforma- ble to the general scope of the authorities on this subject, though I have not been able to discover any instances in which that distinc- tion has been specifically taken. But whether the word " American" is classed among the phrases constituting a warranty, or its insertion is to be considered as the mere effect of repre- sentation, will not vary the result in this case. A rigorous attention to the purest rules of good faith is exacted from all the parties to a con- tract of insurance; but warranty is tested by the positive stipulation of the party. The insured stipulates that a fact exists; that a certain thing is done, and if he fails in main- taining his warranty, the policy is void; but if a representation is substantially true, it is held to be sufficient. If the word " American " has been inserted from the representation of the insured, and so I think must be the construction, and the prop- erty is not so, the defendant has been misled; he has estimated his risk, and, of consequence, received a premium, on the circumstance of its being American property, as contradistin- guished from that of the citizens or subjects of the belligerent, or of other powers who remain neutral. Independent of this representation, the risk would probably have been estimated as arising from the greatest portion of it which could have attached to the ship wherever the property might be vested; as if no disclosure had been made of its precise condition, it might have been the property of a Spaniard, an Englishman, or a Frenchman, and subject to all the risks to which that condition exposed it, as the property of belligerents. I take it, therefore, without determining or giving my opinion whether this description constituted a warranty, that if it should appear that the property of the ship *was not American [*353 but the property of belligerents, that the plaintiff ought not to recover. But it is insisted that the case of Lucttow v. Dale put the second question at rest, and that the sentence must preclude the plaintiff from proving that the property of the ship was as described in the policy. It is not a novel doctrine that the sentence of a court of com- petent jurisdiction, deciding on the subject in controversy, shall conclude on every point directly tried in the cause. As applied to this case, it is not necessary to resort to the fiction that all the world are parties to an admiralty cause. The insured was emphatically a party. If he has entered into a warranty that his ship is neutral, or represented her to be so, it is peculiarly his duty to vindicate his allegation before a tribunal, in which it is a precise ob- ject of inquiry, and which is competent to de- cide upon it. He has in effect exempted the i risks attached to the ship from its being con- JOHNSON'S CASES, L 1800 Goix v. Low. 353 sidered as enemy's property, out of his policy. If he has omitted to furnish the evidence of the neutrality of the ship, which he was, or ought to be possessed of, it is to be attributed as far as it respects the present parties, ex- clusively to himself; and, having had an op- portunity of vindicating it, he ought not to be permitted to devolve the consequence of his inability or disinclination to maintain it, on the insurer. . The inference that the ship was condemned as enemy's property is not, however, to be made from the express terms of the sentence, and I have doubts whether a presumption that it was on that ground can be rationally made. I concurred in the opinion given in the case of Ludlow v. Dale, in which this point was decided; but upon a review of that case doubts were excited, which my reflections have not re- moved: these I conceive it my duty to express, and I am happy the question is again presented, whether the new point of light in which it is placed tends to correct the opinion formerly given, or to confirm the authority of that case. 354*] *Several cases were cited as sup- porting that opinion. The case of Fernandas v. De Costa (Park, 177), in which the ship insured was warranted Portuguese. She was condemned as not being, or under pretence of her not being Portuguese. Lord Mansfield observes that as the sentence is always general, without expressing the rea- son of the condemnation, attested copies of the libel ought in strictness to have been produced to show on what ground the ship was libeled; but he adds, "as the plaintiff has, by his answer in chancery, admitted that she was con- demned as not being Portuguese, when added to the expression used in the sentence of con- demnation that the ship was condemned in the court of prizes, there is sufficient evidence for us to proceed upon." Here the plaintiff's answer was admitted in aid of the general expressions in the sentence, and it appeal's that the court were inclined to seek for the reasons which dictated it in the libel. The case of Bernardi v. Motteaux (Doug., 575) arose on an insurance on freight and goods, upon a ship warranted neutral, and the prop- erty neutral. It appeared that the ship was captured by a French frigate; that the plaintiff offered to give evidence at the trial that the ship was neutral, and that the papers belong- ing to it fell overboard by accident. The sentence stated that the goods going to an enemy's country and the loss of papers had raised suspicions, and that she had been stopped, and it declared both ship and cargo good prize. The question arose whether this sentence was conclusive against the insurer. Lord Mansfield observes, it is difficult to dis- cover what the ground of this sentence was. He inclined to think the court went upon the ground of enemy's property, and considered the want of papers as a strong presumption of that fact. He concluded upon the whole, that enough did not appear on this obscure sentence to ascertain precisely on what it was founded, and some other method ought to be taken to inquire what the ground of it was. In this opinion, Willes,/. , and Ashhurst, J. , concurred. 3oo*] *On the second argument, Lord JOHNSON'S CASES, 1. Mansfield again observes that without the proces verbal the sentence was equivocal. The opinion of the court was that the sentence was ambiguous, and, therefore, not conclusive; and on that ground judgment was given for the plaintiff. Upon Mr. Lee'x urging the dan- ger of opening foreign sentences, and " that in all cases of this sort there would be contro- versies about the ground for foreign sentences," Lord Mansfield replied ''that this inconven- ience would be entirely obviated, if the foreign courts would say in their sentences, ' con- demned as enemy's property.' " The proces verbal is set forth, which is mere- ly a history of the capture and the circum- stances attending it, after which the sentence is introduced with the words "the premises considered." It contains no ground of ad- judication, and the court suggest that the in- convenience arising from this circumstance might be avoided by stating the reason of the condemnation specifically. The case of Barzittay v. Lewis (Park, 358) arose on a policy on a ship warranted Dutch property. The ground of adjudication in that case was pointedly that it appeared that the ship was English and not Dutch property. The case of Saloucci v. Woodmass (Park. , 362) as stated in Park, arose upon a policy of in- surance on goods warranted neutral, on board the Tuscan ship Thetis. The ship was taken by the Spaniards, and condemned as good and lawful prize. There was an appeal, upon which the sentence was reversed; and upon a further appeal, the first sentence was sustained. At the trial of the cause, Lord Mansfield was of opinion that the sentence of the Spanish Court of Admiralty was conclusive evidence of the falsehood of the plaintiff's warranty, and the plaintiff was nonsuited. A motion was made to set aside the nonsuit, and denied by the whole court. Lord Mansfield, in giving the opinion of the court on this motion, says, " it must be presumed from the condemnation, as. no other cause appears, that it proceeded on the ground of the property belonging to an enemy. In the case of Bernardi v. Motteaux, *the decision of the court turned upon [*35& the particular ground of the confiscation ap- pearing on the face of the sentence, and that it did not appear to be on the ground of its being^ enemy's property. This being so, the court gave the party an opportunity to show by evidence that the specific ground was really the cause of condemnation. In this case at Guildhall, the counsel admitted the general rule; but they said if a copy of the proceed- ings could be had, a special cause would ap- pear. The proceedings are now come, and from them it appears that the question turned entirely upon the property of the goods; for, in the second court, to which they appealed from the sentence, the question was, whether the goods were free: the decree was that they were." He concludes, " it is sufficient that no special ground is stated, and therefore the rule must be discharged. " We find in these cases, the court seeking for some explanatory circximstances in aid of the general declaration that the subject captured was good and lawful prize, as a reason for pre- suming it to be grounded on the fact of its being enemy's property. This consideration 351 356 SUPREME COURT, STATE OP NEW YORK. 1800 simply, must inspire some degree of doubt, whether it could be the intent of Lord Mans- field thus lightly, and without animadversion, to shake a doctrine fully brought into view in the case of Fernande* v. De Costa, and after a lapse of at least sixteen years, recognized by the same tribunal in which he had continued to preside during the whole of the intermediate time. The case is stated in general terms, but it ap- pears that there had been successive appeals; that the question whether property was free had been agitated in the Court of Admiralty, and it is highly probable that some circum- stances to warrant a presumption that it was determined on that point might have been developed. This presumption is corroborated by the expression Lord Mansfield uses, as no other cause appears as the reason for the pre- sumption. 357*] *There may, probably, have been some indications in the" proceedings in the first instance before the court, of the real situation of the process in the Admiralty Court, which the court were possessed of before the suit was finally determined. After observing on the progress of the appeals that the question was whether the goods were free, Lord Mansfield concludes, "it is sufficient, however, that no special ground is stated, and, therefore, the rule is discharged." But if the question was whether the goods were free, there certainly appeared to be a ground for the decision in the determination against it, though it was not specially stated. The other construction of this case I take to be that the court concluded that the question of neutrality had been before the courts, orig- inal and appellate, as a precise object of inquiry, and this being so, and no special ground be- ing stated from which it could be inferred that the condemnation was on another ground, the Court of King's Bench suffer the general principle deducible from those proceedings to govern the case, and decides accord- ingly. The case of Calcert v. Bontt(7 T. R., 523), was on a policy of insurance on goods war- ranted American. It was proved on the trial that the property corresponded with the war- rantv. The goods insured had been declared good prize. It appeared that the reasons for the condem- nation were " because the true destination of the vessel in which they were laden was bound for an English island, having been hired and loaded in London, and that there had been found on board of her eighty barrels of gunpowder." That the ship and cargo were American was not questioned; but it was contended that though the fact was so, the sentence of con- demnation precluded the plaintiff from assert- ing the fact. The court examined the reasons, and because those expressly given for the judgment led to a contrary conclusion, they decided that it could not be on the ground that it was British property. Lord Ken- yon expressly refers to and yields to the doc- 358*1 trine, in the cases *of Salovcn v. John- son, Mayne v. Walter, and SaUnicci v. Wood- ma**. The case of Saloucci v. Johnson (Park, 415) 352 appears to have arisen on a policy on the same ship Thetis, on which the case of Saloucci v. Woodman* arose. It appears that the ship was condemned for resisting a search, and for not having a charter-party on board. The ap- peals are stated as in the other case; but it ap- pears that the last sentence admitted the ship to be neutral. It was admitted that a ship warranted to be neutral must be so conducted as not to forfeit her neutrality. But the court determined that the act of search is always the effect of coercion, and may always be resisted when the party is able, and that this did not forfeit her neutral- ity. The doctrine of Lord Mansfield in the case of Saloucci v. Woodmans, is inconsistent with that laid down in the case of Bernardi v. Mot- teaux, and that of Fernandes v. De Costa. In the two last cases, the aid of collateral circum- stances was admitted to give a construction to the generality of the sentence, such as the matter disclosed in the answer to a bill in chancery, and the import of the libel. The general doctrine is admitted by the counsel in the case of Saloucci v. Woodma&s, where the general doctrine was laid down; but what cir cumstances prompted the admission, or what was the extent of it, is not precisely stated in the case. If peculiar circumstances did not exist, it is difficult to reconcile the more recent decision of the Court of King's Bench to the principle alleged to have governed in the case of Saloucci v. Woodmaxs. In that case the goods insured were warranted neutral, and Lord Mansfield held " that it must be presumed from the con- demnation, as no other reason appears, that it proceeded on the ground of the property be- longing to the enemy." I cannot satisfy myself on what ground this presumption ought to prevail in preference to any other. The opinions of Lord Mansfield merit, and will always command *a re- [*35O spectful attention; but at a period when they cease to be binding as authority, I can follow them so far only as they tend to convince my mind that they are correct. The rules applicable to this question, as laid down by Lord Mansfield, seem to be that if it appears that the condemnation was expressly on the ground that the property insured was enemy's property, it shall conclude that if the .grounds are set forth, they are examiuable; but if the sentence is silent as to the reasons, though it is admitted that there are cases in which an examination may be proper, the presumption is, that the condemnation was on the ground of its being enemy's property, and of consequence, the reasons presumed being the strongest possible against the insured, it must also conclude him. This is established on the courtesy which ought to prevail be- tween different courts; but certainly the cour- tesy is carried beyond the necessity which dic- tated it. All that can be required is a pre- sumption that their proceedings were war- ranted on some ground arising from local regulations, or from the general maritime law; and it does not follow that because the sentence is silent as to both, that the condemnation is to be attributed exclusively to one of them. JOHNSON'S CASES, 1. 1800 DUGUET v. RHINELANDEK ET AL. 859 On the whole, therefore, I am of opinion that the plaintiff is entitled to recover. Judgment for the defendant. 1 Reversed 2 Johns. Gas., 480. Cited in^l Johns. Gas., 362; 2 Johns. Gas., 142, 172, 178, 182, 452 ; 2 Games' Cos., 258 ; 8 Johns., 319 ; 9 Johns., 221. 4360*] *DUGUET v. RHINELANDER ET AL. 1. Marine Insurance Warranty Neutral Property. 2. Naturalized Citizen War Law of Nations. A waranty of mutual property is to be construed in reference to the belligerent parties, and to the law of nations. A Frenchman who emigrates to this country, flagrant*, bello, and becomes natural- ized, though he thereby acquires the privileges of a citizen of the United States, is still to be con- sidered a French subject, in regard to France and Great Britain, who are at war, according to the law of nations. Citations Delavigne v. United Ins. Co., ante, 310 ; Goix v. Low, ante, 341. THIS was an action on a policy of insurance on goods on board the schooner Daphne, from Philadelphia to Havanna. The facts were these: On the 26th of January, 1799, " Mr. Will- iam Thomas, for account of Philip Duguet, a -citizen of the United States," opened the policy in question. The vessel and property were warranted American, and the defendants subscribed the sum of $2,500. The schooner was captured on the voyage in- sured.and, together with her cargo, were libeled at New Providence. The vessel was acquitted. The sentence, pronounced on the 23d of Sep- tember, 1799, by the judge of the Vice-Ad- miralty Court (Kelsall) against the property insured was as follows: "It is a maxim that things which should be judged by the law of nations ought not to be determined by the civil law or the particular institutions of any country. The state of war, and the rights which result from thence, are of this description. No individual can, of his own mere act, exempt himself from the re- lations this state places him in, both with re- spect to his sovereign, and to that with whom he is at war. He is, by the act of his sover- eign, rendered an enemy, nor can his sovereign devest him of his own authority, of that char- acter, without the consent of that power with whom he wages hostilities. Much less, I ap- prehend, can a neutral state plead that her municipal regulations have changed the polit- ical condition of the subjects of a state at war, either to protect them from the punishment which their own sovereign can inflict, for a nonperformance of their duties to him, to whom they owe a prior obligation, or to re- lieve them from the consequences of those rights which accrue to the enemy, necessarily 361*] *and justly from the commencement 1. See 3 Bos. & Pull., 201, 506, 514, 515, 531 ; 6 East, ^82. JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. of hostilities; among these are the right of re- prisals and the right to deprive the enemy of his goods and possessions." "An individual in war emigrates at his own peril. In a neutral nation his person and his property are secure, but as his character of enemy cannot be changed but by the same powers which rendered him so, as long as war exists, by the law of nations he cannot come into the realm, nor travel on the high seas, nor send his goods and merchandises from one place to another, without danger of being seized. In my opinion, a man who was a citi- zen of France at the commencement of the war, or who has not changed his domicile prior to that period, must be considered, with respect to Great Britain, as an enemy, notwithstanding his naturalization in a neutral State. It is on these principles that I acquit the property of Joseph Donath and James I. Masurie, as being citizens of the United States, and condemn that of Peter Ducoing, Peter Lacombe, and Philip Urbin Duguet, they having been, at the commencement of the present hostilities be- tween our sovereign lord the king and the republic of France, and still are, citizens or subjects of the said republic." The plaintiff is by birth a Frenchman, and became a naturalized citizen of the United States, according to law, on the llth of Oc- tober, 1796. The schooner was an American vessel, and the plaintiff had goods on board to the value of the sum insured. An abandon- ment was made in due time, and the usual proofs of loss and interest were exhibited to the underwriters. On a case made containing the above facts, it was agreed, that if the court should think that the plaintiff was entitled to recover for a total loss, a judgment should be entered for $2,593; or if the court should be of opinion that the plaintiff was only entitled to a return of premium, that then the judgment should be entered for $185.50. Or, if the court should be of opinion * that the plaintiff was [*362 not entitled to recover anything, then a judg- ment was to be entered for the defendant. Mr. B. Livingston for the plaintiff. Mr. Hanson for the defendant. RADCLIFF, J. Placing out of view the ques- tion as to the conclusiveness of foreign senten- ces,! am of opinion that the warranty of Ameri- can property ought to be construed in reference to the belligerent parties. It was intended that the property should be neutral in regard to them. The reasoning of the Court of Ad- miralty appears to me to be well founded that the plaintiff, being a Frenchman, could not, either in regard to his own country or its enemies, expatriate himself, flagrante bello, so as to destroy the relation in which he stood at the commencement of the war. This principle appears to have been generally adopted by public writers, and in the practice of nations. I think, however, that for the reasons given in the case of Delavigne v. The United Insurance Company (ante, p. 310), decided in this term, that the plaintiff is entitled to a return of premium. BENSON, J., was of the same opinion. 23 853 362 SUPREME COURT, STATE OF NEW YORK l&Ot!- KENT, J. For the reasons given by me in the case of Goix v. Law (ante, p. 341), I con- sider the sentence of condemnation as con- clusive evidence of a breach of the warranty, and that judgment ought, therefore, to be rendered for the defendants. But supposing the sentence still open for our examination, I think that the warranty of neutrality must be considered in reference to the law of nations; and the true question is, whether the plaintiff is to be considered as a Frenchman or an American, according to that law. It is imma- terial how he was considered in France, or by the municipal law, because the parties, by the true construction of the contract, had in view a protection on the high seas, under the sanction of the general law. By the law of nations, the plaintiff was to be deemed a Frenchman, and not an American, in respect to the powers at war. It was necessarily to be inferred from the case that the plaintiff emigrated from France, pending the war, and 363*] it * is a sound principle of national policy that an emigration, flagrante bello. will not and cannot rightfully change the duties and responsibility of the party. His sovereign may still claim him as a subject, and the enemy of that sovereign has a right to regard him as an enemy. The parties at war can only know the subjects of each other, as their .re- spective domiciles existed at the breaking out of the war. 'By the naturalization of the plaintiff here, he only acquired municipal privileges. He is left in statu quo, as to his pre-existing relations to other nations. LANSING, Ch. J., did not admit the con- clusiveness of the sentence of the Admiralty Court, but concurred in this opinion on the other grounds. LEWIS, J., dissented, and was of opinion that the plaintiff was entitled to judgment. Judgment for tJie plaintiff, for the premium only. ' Reversed 1 Caiues' Gas., XXV. 2 Johns. Gas., 476. Distinguished 1 Caines, 291. Cited in 1 Johns., 11. ARNOLD AND RAMSEY v. THE UNITED INSURANCE COMPANY. Marine Insurance Warranty Neutral Prop- erty Prize Connul Domicile Foreign Sen- tence. Goods were insured from New York to two ports in the Island of Cuba ; "warranted American property, proof to be made in New York." The goods belonged to two native American merchants in New York, and to a native American who resided at the Havanna, in quality of American consul, and who were joint owners of the ship, and partners in the adventure. The vessel and cargo, during the voy- age, were captured by the British, and the goods be- longing to the American consul at the Havanna and his partners, were condemned as Spanish property. In an action on the policy, it was held that there was a breach of the warranty; that a consul of a neutral State, residing in a belligerent country, and 1. Thisjudginent was afterwards reversed in the Court of Errors in 1801. See post. 354 carrying on trade as a merchant, was to be con- sidered as domiciled in that country; and if con-- nected with neutral merchants as a partner in trade his property would be subject to capture and con- demnation by a belligerent as enemy's property. Citations Park, 195; 2 Valin,249, art. 8, 258, art., 11,- Vattel, 231; Martens, 155,229; Vattel, 711, 714 ;Vattel, 105, 105,100 ; Id., 158, 8 114; Vattel, 92, 1 213 ; Vattel, 132- THIS was an action on a policy of insurance, upon all kinds of lawful goods, on board the ship Hope, from New York to two ports in the Island of Cuba. In the declaration it was averred that the property belonged to the plaintiffs and one Daniel Hawley; there were also two counts for money had and received to the use of the plaintiffs, and for money paid, &c. The cause was tried before Mr. Justice Kent,, at the circuit in the city of New York, the 25th of July, 1799, when a verdict was found for the plaintiffs, subject to the opinion of the court on the following case: * The policy and loss, as stated in [*364- the declaration, were admitted; it was also admitted that the plaintiffs and Hawley had property on board to the amount insured, and that an abandonment was duly made. At the time the policy of insurance was effected. Hawley was a native American citizen, and resided at the Havanna, in the Island of Cuba, in quality of a consul of the United States. No information was given to the defendants that Hawley, or any other person than the plaintiffs was interested in the cargo. The vessel was described in the policy as "the good American ship called the Hope. " At the foot of the policy was the following written clause r " Warranted American property, proof where- of, if required, to be made 'in New York only." The Hope, while prosecuting her voyage, was taken by a British cruiser, and carried into New Providence, and there libeled in the Vice-Admiralty Court, on the ground that the ship and cargo belonged to Spain, or to persons being subjects of, or re- siding within the territories of Spain. The ship and a part of the cargo were released, but the residue, belonging to the plaintiffs and Hawley, was condemned as good lawful prize to- the captors. 2 Mr. B. Livingston and Mr. Burr for the^ plaintiffs. Mr. Troup and Mr. Hanson for the defend- ants. KENT, J. It was understood to be the agreement of the parties, in consequence of the special clause in the policy, and it was so- admitted at the argument of the cause, that the question whether the warranty was broken * or not was open for examination, [*3O> 2. From the sentence of condemnation, a copy of which was annexed to the case, it appeared that the vessel and part of the cargo belonged to Arnold and Ramsay, and to Hawley, who resided at the Ha- vanna, in the character of an American consul, with his wife and family; that the vessel took in part of her cargo at Trinidad, in the Island of Cuba, and was pro- ceeding to Havanna, to complete her lading there, when she was captured; and that Hawley accepted a draft drawn on him by Arnold and Ramsay, for the purpose of enabling them to purchase part of i the cargo, for their joint concern and benefit. JOHNSON'S CASES, 1_ 1800 ARNOLD AND RAMSEY v. THE UNITED INSURANCE COMPANY. 365 notwithstanding the sentence of condemnation in the Vice-Admira}ty Court. If this condemnation be warranted by the law of nations, it was, then, necessary to have disclosed to the insurer the part owner- ship of Hawley, as that circumstance material- ly increased the risk. There was also a breach of the warranty ; for the averment that the property was American must be wholly and strictly true, since the sound construction is that the policy must be American, in respect to the powers at war, and not merely in respect to our municipal law. The contract had refer- ence to an intercourse with foreign nations, and the security which was the object of the warranty was such as would be granted by the law of nations, under the sanction of which all foreign intercourse is 'to be conducted. If, on the other hand, the sentence of con- demnation was not conformable to the law of nations, then the warranty has not been broken, nor was it necessary to disclose the ownership of Hawley, as it could not be mate- rial. (Park, 195, Mayne v. Walter.) The decision of this cause, therefore, turns wholly on the legality of the sentence of con- demnation at New Providence, as far as it re- spects Hawlev. And the question is, was the property of Hawley, who, at the commence- ment of the risk, resided at the Havanna in the quality of consul, and transacted business as a merchant, American property, within the pur- view of the law of nations? On' this point I have no doubt. The reasons assigned in the decree of condemnation appear sound. The judge observes "that consuls have certain privileges and immunities, but that if they enter into trade, they are tied down by the same restrictions as other merchants are; that if consuls had a right, in their con- sular capacity, to enter into trade, and to be freed from being considered as residents in the belligerent country, they would have it in their power to cover foreign property, under the mask of its being American, to an immense extent." This would undoubtedly be the case. The law 366*] which authorizes ^maritime capture would be altogether evaded, and become, per- haps, null, if neutrals were permitted to reside within the belligerent territories, and to carry on trade under neutral protection. However favorable such an effect might be to the policy of neutrals, yet it is sufficient to observe that a state of war is permitted by the law of nations; that it has its relations and' its rights as well as a state of peace, and that neutrals are bound to conduct themselves in conformity to those re- lations and those rights. In order to guard against abuse, and to ascer- tain the parties at war by some determinate cri- terion, it seems now to be pretty generally understood, that the domicile shall be the test by which to determine whether a person is to be regarded as a subject or a foreigner. It was a maxim of the civil law that incolas domiciUum 3Q7*\facit, 1 and the *domicile was defined by 1. By the civil law, a bare habitation, or tempo- rary residence in a place, did not create the jus in- colatus. " Et in eodem ?oco etaoulos habere clomi- cttium ncm ambigitur, ubi quis larem rerumque ad fortunarum suarum xummam constituit, unde rursus non tt dbeewww, si nihil adcocet : unde cum profec- tus est, pregrinari videtur ; quod si redit, peregrinari jam dexttttt." Cod., lib. 10, tit. 39, 1. 7. So in the JOHNSON'S CASES, 1. the same law to be the place where a person re- sides and carries on his business. It was in the spirit of this general rule that the ordinance of France, in 1704, and that of 1744 were dictated, which declare that neutrals, fixing their domicile and carrying on commerce in a belligerent territory, were to be treated as enemies (2 Valin, 249, art. 8; 258, art, 11.) As long as public ministers and consuls con- fine themselves to the business appertaining to their public characters, their domicile is not changed, but remains in the country from which they are deputed, and they are not sub- jects of the country in which they reside. (Vattel, 231 ; Martens, 155, 229.) But if they en- gage in business inconsistent with or foreign to their public or diplomatic *character, [*368 they are thenceforth to be considered as donii ciliating themselves abroad, and becoming as subjects.amenabletotheordinary jurisdiction of the State. (Vattel, 711-714.) As they contribute by their industry and property, when engaged in trade, to aid the government under which they reside, it is but reasonable that the ene- mies of that government should have a right to hold their property responsible as that of an enemy. I am of opinion, therefore, that Mr. Hawley, by becoming a merchant at the Havanna, a character wholly distinct from his consular functions, was rightfully considered as estab- I lishing his domicile there; and that he became, j in regard to his transactions as a merchant, i and in reference to the enemies of Spain, a I Spanish subject. The condemnation, there- j fore, of the property of Hawley was lawful; and the warranty was not strictly or wholly | true, nor was a material fact disclosed to the j insurer. On either ground there must be judg- ' ment for the defendants. RADCLIFF, J., and BENSON, J., were. of the I same opinion. LANSING, Ch. J. In the policy is contained j a warranty that the goods were American property, and that proof of their being so i should be made at New York. Hence it becomes necessary to examine, 1. The intent of the warranty; and, 2. Whether it has been verified. The doctrine of insurances imposes it on the contracting parties to acquire the knowledge ! of existing wars, and the influence those may i have on maritime adventures. They are to be j presumed to know the extent of those wars, | what nations are belligerent, and those who re- | main neutral. The parties in this case must of i course have known that American, as neutral j property, ought to be respected by the nations ; at war, 'and that a less degree of risk was at- ; tached to property of that description than to i that of citizens or subjects of those powers. *In this situation, it could not have [*36?> j been their intent, in forming the warranty in 1 question, to apply the term "American prop- Digest, lib. 50, tit. 16, 1. 203. Earn dnmum unicuique nostrum debere extstimart, ubi quisque sedes ct tabu- las haberet, suarumqrue rcrum con^titutionem /ecttset. Agreeably to this is the opinion of Lord Loughbor- ouprh, in the case of Bempde v. Johnstone, 3 Ves., Jun., 201. See, also, the case of Somerville v. Somer- vllle.5 Ves., Jun., 750, where the question of domicile was learnedly and elaborately discussed. 355 369 SUPREME COURT, STATE OK NEW YORK. 1800 erty," merely as descriptive of the legal import of those terms, tested by the laws of the United States. It obviously applied to the general maritime law which regulated objects of this kind. The language of the warranty seems to be this: " I warrant this to be American prop- erty, and that it is of a description which all the powers at war ought to respect as such. But as in some instances, arbitrary distinctions, originating in national views "or local ordi- nances, have prevailed in the foreign courts, to some of which the construction of what con- stitutes property of this description may be submitted, I reserve to myself the right of hav- ing it decided by the tribunals of our own country but on the ground of the general maritime law, established by the usages of nations." If this exposition is correct, the next ques- tion may be solved by examining whether the goods insured were of a description entitling them to be considered as American property. The sentence of condemnation declares the goods to be the property of persons resident in the dominions of Spain, one of the powers at war, and as such, good prize to the captors. The warranty has, however, excluded that sentence from operating to the prejudice of the insured, it containing an express stipulation that the proof of this being American should be made exclusively at New York. So that the question is not merely, has this point been decided by the Court of vice-Admiralty at New Providence? but were the circumstances of this case such as to warrant the decision ? It appears, from the case, and it is expressly admitted, that Hawley, one of the persons in- terested with the plaintiffs, had his domicile at the Havanna, in the Island of Cuba, in the dominions of the King of Spain, one of the powers at war, and that he was a citizen of the United States, and their consul at that place. 37O*] * Among the effects of the residence of foreigners, in a. State of which they are not citizens, Vattel (155, 105, 106; Ib., 158, 114) enumerates the duty of contributing to its de- fense, and to all taxes (those excepted which have only a relation to the citizens), and they certainly aid the revenue of the country in which they reside by their consumption of In the case of The Vigilantia (1 Rob. Adm. Rep., 13, 14), Sir William Scott says that where there is nothing particular or special in the conduct of a vessel itself, the national character is determined by the residence of the owner : but there may be circumstances arising from that conduct, which will lead to a contrary conclusion. He refers to the decision of the Lords of Appeal in 1785 ; that where one of two partners resided in Denmark, and the other in St. Eustatius, where they established a house of trade, that the share of the partner resi- dent in St. Eustatius was liable to condemnation as the property of a domiciled Dutchman. So in 1795, in the case of one of two partners emigrating from Nantueket to France, for the purpose of carrying on their fishery, the property of the partner domi- ciled in France was condemned. Again, in 1798, it was decided that if a person en- tered into a house of trade in the enemy's country in time of war, or continued that connection during the war, he should not protect himself by mere resi- dence in a neutral country. In the case of The Endraught (1 Rob., 19), Sir William Scott said, that if a neutral chose to en- gage himself in the trade of a belligerent nation, he must l>e content to bear all the consequences of SM articles on which excises or duties are im- posed. The doctrine attempted to be established from Valin (2 Valin, 249, art. 8; 251, art . 11), appears to derive little support from the tern porary regulations we find referred to in the argument, as it appears that the ordinances in which that doctrine is contained were not per- manent in affirmance of the law of nations, and of consequence, merely devised as means to carry the principles of that law into effect, but limited in their duration to the existing war in which France was then engaged. They were calculated, among other objects, to deprive the subjects of the powers at war, who had not been naturalized, and had not transferred their domicile into the dominions of the neutral powers, before the commencement of the war in which France was then engaged, and those who, though naturalized, had since returned into the enemy's country to pursue their com- merce, of the rights they claimed as neutrals. They are to be receiveu as dictated merely by the policy of the king and country in which they originated; and in the instances in which they conform to the general law of nations, they only tend to show that the principles of that law influenced the French government in the formation of those ordinances. One of those temporary ordinances was passed in 1704, the other in 1744. They are nearly of the same import, though the ex- pression is somewhat varied. They appear to have been intended to regulate the proceedings of the prize courts, and to promulgate the principles by which their decisions should be regulated. Vattel (92, 213) observes that the inhabit- ants of a country, as distinguished from citi- zens, are strangers who are permitted to settle, and stay in the country. Bound by their resi- dence to the society, they are subject to the laws of *the State while they reside [*3 7 1 there, and they are obliged to defend it, because it grants them protection. If, then, persons who have their domicile in a foreign country, are subject to contribute to the exigencies of the state, by paying a portion of the public taxes, and obliged to defend it, they can have no pretensions to be considered as neutrals. They form a part of the efficient force of the country in which they reside, that such a speculation ; and if he confines his vessel ex- clusively to the enemy's navigation, he is liable to be considered as an enemy, with respect to the con- cerns of such vessel. See, also, 1 Rob., 105, 24 ; 2 Rob., 322, et seq. In the case of Mr. Johnson (3 Rob., 12) and of Mr. Millar (3 Rob., 27, The Indian Chief), it was decided that the character of an American consul residing in a foreign country would not protect that of the merchant, when united in the same person ; and Sir William Scott cites several cases before the Lords of Appeal, in 1782, 1784, and 1797, where it was so set- tled, after solemn argument. See, also, 3 Rob., 38, 39, 41, 44 ; 4 Rob., 28, 232, 239 ; 5 Rob., 379. In Tabbsv. Bendlelack (4 Esp. Gas., N. P., 108), Lord Kenyon considered an American residing with his family in England, and carrying on trade from that country, so far a British subject, in regard to belligerents, that if he warranted his ship to be American, the warranty failed, and he could not re- cover in case of a capture. On the question of domicile, see, further. Marsh v. Hutchinson (2 Bos. & Pull., 236), and the cas of Bruce v. Bruce, in a note, p. 229, and the cases there cited. JOHNSON'S CASES, 1. 1800 JACKSON, EX DEM. MURRAY ET AL , v. WALSWORTII. 871 force which is exerted to repel or annoy its enemies; and it would seem strange that in a situation so intimately connected with that country, as to render it difficult to distinguish them from its subjects, the protection of neu- trals should be extended to them. It appears to me, from these considerations, that the adjudications of the British and French courts, which have been made on this ground, during the existing war, were well warranted by the law of nations. But it has been urged, that as Hawley was a consul of the United States, he is, as such, in some measure entitled to the protection of the laws of nations. The admission of consuls depends either upon express convention or the permission of the sovereign in whose dominions they reside. (Vattel, 132.) But by receiving them, the sovereign strictly engages to allow them all the liberty and safety necessary in the proper dis- charge of their functions. What personal immunities a consul is particularly entitled to it is not necessary, on the present occasion, to consider; for whatever they may be, they can only be such as to preserve his safety and in- dependence in the discharge of those functions. An exemption from imposts is not essential to his quality of consul; if he engages in mercan- tile speculations, he is of course subject to all the burdens which other inhabitants, not sub- jects of the country in which he resides, are liable to. If there is any difference between his situation and that of other strangers, it may, perhaps, arise from his being, as an acknowledged public functionary of a foreign nation, exempted from personal service in any 372*] hostileenterpri.se. This, however, *will not so effectually disengage him from the in- terests of the society in which he resides as to make him completely a neutral. His property must contribute to the support of the war. If he is to be considered as a subject of Spain, in consequence of his having his domi- cile in its dominions, the warranty was not complied with in this case, and of consequence, a strict compliance with a warranty being re- quired, the policy is void. On these grounds, I am of opinion that the plaintiffs ought not to recover in this cause, and that judgment should be rendered for the de- fendants. LEWIS, J., dissented. Judgment for the defendants. ' Approved 2 Johns. Cas., 477. Distinguished 3 Johns. Cos., 50. Cited in 8 Johns., 319 ; 7 Wall., 553. JACKSON, ex dem. MURRAY ET AT,. , WALSWORTII. 1. Absent and Absconding Debtors Instrument Appointing Trustees Munomer Lapse of Time. 2. Proceedings not AutJwized. Where an instrument executed by the Chief Justice of the State, appointing 1 trustees pursuant to the act for relief against absent and absconding debtors, for all the creditors of certain persons trad- 1 .This Judgment was affirmed in the Court of Errors in 1801. JOHNSON'S CASES, 1. ing together under the firm of the " American Iron Company," and absent debtors, in mentioning the names of the individuals composing the company, stated some of them to be trustees for others, and some as executors, &c., these additions were con- sidered merely as words of description, so as to sup- port the validity of the appointment, and the pro- ceedings under the attachment; more especially after a lapse of time, and the acquiscence of the parties interested. The act relative to absent and absconding debtors does not authorize proceedings against persons acting as executors, trustees, or in a representative character. THIS was an sction of ejectment. On the trial of the cause, a general verdict for the plaintiff was taken by consent, subject to the opinion of the court on the following case: On the 27th day of February, 1769, about 18,- 000 acres of land, of which the premises in question are a part, were, by letters patent, under the great seal of the late colony of New York, granted to David Greame, Mary Croffts, James Crawford, George Jackson, John Elves, Arthur Forrest, Richard Willis, Thomas Dam- pier, John Duval, William Robertson, William Berry, Neal Ward, Mary Sleach, Lucy Sleach, Hutchinson Mure, Catharine Hassenclever, *and Charles Croffts, each of the said [*373 grantees to hold a full and equal eighteenth part of the said lands, as tenants in common, and not as joint tenants; and which land is situated on the north side of the Mohawk River, in the County of Herkimer. Peter Goelet, William Popham, and Robert Morris, three of the lessors of the plaintiff in this cause, claimed a right to recover the prem- ises in question, by virtue of an instrument in writing, made on the 29th September, 1788, by Richard Morris, Esq., then Chief Justice of the State of New York, which instrument was recorded in the office of the Secretary of this State, on the 5th May, 1794, and is in the words and figures following, to wit : " To all to whom these presents shall come, oV may in any wise concern, I, Richard Mor- ris, Esq., Chief Justice of the State of New York, send greeting : Know ye, that pursuant to an Act of the Legislature of the State of New York, entitled, ' ' An Act for relief against absconding and absent debtors," passed the 4th April, 1-786, and by virtue of the power and authority to me given in and by the said act, I have nominated and appointed, and do by these presents nominate and appoint, Peter Goelet, of the City of New York, mer- chant, Robert Morris and William Popham, of the said city, Esqs., to be trustees for all the creditors of David Greame, George Jackson, Arthur Forrest, Richard Willis, the Rev. Thomas Dampier, John Elves, and Richard Willis, aforesaid, in trust for Mary, the wife of William Croffts, John Elves, in his own right, Patrick Crawford and Gilbert Meason, executors of James Crawford, deceased, Hutchinson Mure, Robert Mure, and Richard Atkinson, joint partners, John Duval, Will- iam Robertson, Neal Ward, Mary Sleach, Lucy Sleach, William Berry, Peter Hassen- clever, and Charles Croffts, late partners with Andrew Seatou (who is become a bankrupt), under the style or firm of Hassenclever, Seaton & Croffts; afso the said Andrew Seaton, Will- iam Robertson, Miles Nightingale, and Rich- ard Willis, as assignees of the estate and effects of the said Andrew Seaton, under the 857 373 SUPREME COURT, STATE OF NEW YORK. 1800 said commission of bankruptcy, and the said Peter Hassenclever, in bis own right, late part- 374-*] *ners and joint dealers in trade, under the name, firm and description of the Ameri- can Iron Company, or Ringwood Company, and absent debtors, against whose estates, real and personal, an attachment hath been duly issued, pursuant to the said act, and such other proceedings had as in and by the said act are directed; and I do hereby, as far as in me lies, authorize and empower the said Peter Goelet, Robert Morris, and William Popham, to execute all the powers given to such trustees in and by the .said act. In witness whereof, I, the said "Richard Morris, have hereunto set my hand and seal, the 29th September, 1788. "RICHARD MORRIS." It was agreed that if the court should be of opinion that Peter Goelet, Robert Morris, and William Popham, three of the lessors of the plaintiff, have not, by virtue of the said instru- ment, a right to recover any part of the prem- ises in question, then the said verdict should be set aside, and judgment as in case of non- suit be entered against the plaintiff; and in case the court should be of opinion that the said lessors of the plaintiff are, by virtue of the said instrument, entitled to recover any part of the premises in question, less'than the whole, then, in that case, the verdict should be amended conformably to such opinion. Messrs. Pendleton, Harison, and Burr, for the plaintiffs. Messrs. Cody and Riggs for the defendant. LANSING, Ch. J., delivered the opinion of the court: The inquiry in this case is confined to two questions: 1. Were the proceedings against the Ameri- can Iron Company valid? and if they were, 2. What part of the land in question vested in the trustees by virtue of the appointment under which they claim? The appointment purports to be of trustees for all the creditors of David Greame and others, naming the other persons composing the company, among whom are John Elves and Richard Willis, in trust for Mary, the wife of William Croffts, Patrick Crawford and Will- iam Meason, executors of James Crawford, 375*] Robert Mure, and Richard *Atkinson, joint partners with Andrew Seaton, who is become bankrupt, under the style and firm of Hassenclever, Seaton & Croffts, and Andrew Seaton, William Robertson, Miles Nightingale, and Richard Willis, as assignees of the estate and effects of the said Andrew Seaton, under the said commission of bankruptcy; after which a general descriptibn is added, " late partners and joint dealers in trade, under the name, firm and description of the American Iron Company," or " Ringwood Company." We think that, considering the long time which has elapsed since the appointment of trustees of the estate of the American Iron Company, the acquiescence of the members of that company in those proceedings, and that the important interests which were stated and admitted, might be devested if the appoint- ment should be deemed invalid, every intend- 358 ment, consistent with the rules of law, is to be made in its support. The statute respecting absent debtors does not warrant proceedings against heirs, execu- tors, trustees, or others claiming merely by right of representation. If, therefore, either from an improper combination of persons or interests in the process, it became voidable or nugatory as to some of the parties, it might be a question how far it was valid as to others. If all the parties mentioned in the appoint- ment, as interested in their own right, together with the persons described as being represent- ed by others, had formed a copartnership, the survivors of this copartnership, as to all per- sonal contracts and interests, would represent the whole. If other persons succeeded to the right of some of the original copartners, and interested themselves in the concerns of the firm, whatever description they might think proper to assume, they were personally respon- sible for the copartnership debts, as much as if they had originally composed a part of the firm. *The introduction of the names in [*376 the former case of a set of men who claimed a.s representatives of the deceased copartners, might present an incongruous case; but such an one as obviously did not vary substantially the interests of the parties whose property was affected by the attachment; their names might well be considered in a process certainly not analogous to, or to be tested by the common law forms, as surplusage, and we think they ought to be so. There are, therefore, strong reasons for considering these additions as merely descriptive of the persons, independent of the aid given to that construction, from the lapse of time and the acquiescence of the par- ties affected by the proceedings. We are, therefore, of opinion that they are valid on this ground. The next question is, how is the title to the land in controversy made out under this ap- pointment? The letters patent were granted to David Greame and seventeen others, for each one, an undivided eighteenth part of the tract therein described, including the premises in question, as tenants in common. Of the patentees, the names of Mary Croffts, James Crawford, Catherine Hassenclever, and Mary Elizabeth Hassenclever, are not inserted in the appointment of the trustees. In that appointment, John Elves and Richard Willis are described as holding in trust for Mary, the wife of William Croffts: but the identity of the patentee and debtor cannot be inferred from this, nor can the privity between his es- tate and that alleged to be vested in the trust- ees, be deduced from it. Patrick Crawford and Gilbert Meason are described as executors of James Crawford; but this could neither affect or pass his right as a patentee. So that there are four patentees, whose title could not have vested, by the ap- pointment, in the trustees. *To the remainder, or fourteen [*377 undivided eighteenth parts, the plaintiff has maintained his right of recovery. The court are, therefore, of opinion that the verdict ought to be modified, conformably to the agreement of the parties, by entering it for JOHNSON'S CASES, 1. 1800 THE UNITED INSURANCE COMPANY v. LENOX. 877 that proportion of the premises for the plaint- iff, and for the remainder for the defendant. Judgment accordingly. Distinguished 1 N. Y., 333. Cited iu 13 Johns., 207 ; 9 Wend., 468 ; 1 Barb., 151. THE UNITED INSURANCE COMPANY LENOX. Marine Insurance Abandonment Freight Earned. Where a ship is abandoned to the insurer, who ac- cepts the abandonment, and the voyage is after- wards performed, and freight earned, the insurer is entitled to the freight earned subsequent to the .abandonment, or pro rata. Affirmed in the Court of Errors in 1801. Citations 2 Emerigon, 219, 221; 2 Valin, 59; 2 Burr., .*82 ; 3 Caines, 16 ; 1 Johns., 333 ; 3 Johns., 49. THIS was an action for money had and re- ceived. Plea, the general issue. It was tried at the last July circuit, in the city of New York, when a verdict was found for the plaintiffs for $1,167, subject to the opinion of the court on the following case : The ship Josiah Collins was insured by the plaintiffs, at and from Bangor, in Wales, to New York. She sailed on the voyage in- sured, and after being ten days at sea, was forced, by stress of weather and the injuries she had received, to bear away, and put into Rivadeo, in Spain. The assured, upon hear- ing that the ship was at Rivadeo, abandoned her to the plaintiffs, who accepted the aban- donment and paid a total loss. After the jibandonment, and before the acceptance, the assured also caused an insurance to be made on the freight of the ship, for which he paid the premium. The ship was repaired at Riv- adeo, prosecuted her voyage, and arrived at New York with the greater part of her cargo. After her arrival, the assured was appointed the agent of the ship, and in consequence thereof, the defendant, in his behalf, received for freight the amount of the sum for which the verdict was taken, which remained in his hands for the benefit of the party entitled thereto. 378*] *0n this case, the question submit- ted to the opinion of the court was whether the plaintiffs were entitled to the whole, or -any, and to what part of the sum received for freight by the defendant. Messrs. Troup and Harison for the plaintiffs. Mr. B. Livingston for the defendant. RADCLIPP, J. In our law, freight is con- sidered as a distinct subject of insurance. It is never deemed to be included in a policy, -either on a ship or cargo. The different in- terests which form the subjects of insurance are regarded as several in their nature, and independent of each other. From this single consideration, I think it follows, that an in- surer upon a ship can in no event be liable for ;any damage or loss sustained by the freight or -JOHNSON'S CASES, 1. cargo which he did not insure, and e converso, in case of the loss of the ship, he can in no event gain by means of the freight or cargo. The effect'of an abandonment is merely to substitute the insurer in the place of the in- sured. It bears no analogy to a sale, which is an original and absolute contract, and at once ascertains and fixes the rights of the parties. An abandonment is no contract, but the exer- cise of a right derived from a previous con- tract contained in the policy. Its operation must, therefore, be regulated by the nature of the act, and the just construction of the policy. Considered in this light, I can discover noth- ing in support of the plaintiff's claim to recov- er what he did not insure. Indeed, the rule appears to be sound and invariable that on the one hand the insured can never recover more than an indemnity for his loss, and on the oth- er, the insurer, on an abandonment, can never be entitled to receive more than the subject he insured. The plaintiffs insured the ship only, and they received the premium for that insur- ance; they never could be liable for any other loss than that sustained by the ship, and of course cannot be entitled to claim anything be- yond the value of the ship at the end of the voy- age, for the performance of which they have *undertaken by the policy, and for [*379 which they have been paid. To give them more would be to give them a compensation without a risk something for nothing. On accepting the abandonment, the insurers stepped into the place of the insured, and by substitution, acquired the same rights, and be- came subject to the same duties in relation to all concerned. It is true they became the owners of the ship, but they could only take her cum onere, subject to the situation in which she was placed, and the engagements of the voyage they had insured, and, of course, to the rights of all parties concerned in the ad- venture. Their premium was the adequate consideration for this. In like manner, the insurer upon the cargo, in case of an abandon- ment, takes it subject to any burthen that may exist, and to the rights of all parties. He is bound to pay the freight, if any be due, and to contribute to all necessary expenses, as the owner would have done. So, also, the insurer upon freight, under similar circumstances, is liable to contribute to a general average, and to submit to all proper deductions; and in either of those cases, the insurer, after an abandon- ment, can claim no more than what remains of the subject he has insured. This was well illustrated by the case stated on the argument, that the ship may belong to one person, the freight to another, and the cargo to a third. Suppose, in that case, the insured upon the ship to abandon to the underwriters, could they, by any construction, be justly entitled to the* freight which originally was, and contin- ued to be the property of another? They plainly could not, and it exemplifies the inde- pendent nature of those different subjects of insurance, and places them in their true light. To treat them differently, by connecting and blending them together, would lead to uncer- tainty and confusion, and render it impossible to form a consistent and uniform rule on the subject. The circumstance that the insured, in the 359 379 SUPREME COURT, STATE OF NEW YORK. present case, is the owner of both ship aiid freight, can make no difference. If they are distinct interests, it is immaterial whether 38O*] *lhey belong to one or to different per- sons. The whole adventure of a voyage (ship, freight and cargo) may, and frequently does belong to the same person, but I believe it was never imagined to follow from thence that an abandonment of the one could affect the other. The rules of law must be fixed and uniform, and cannot depend on such contin- gencies. The only authorities on the subject are col- lected from the French law (2 Emerig., 219, 221, who cites Roccus), and appear to me inap- plicable to our own. They regard the freight as accessory to the ship, and in pursuance of the maxim that every accessory follows its prin- cipal, they hold that an abandonment of the ship carries with it the right to the freight. The application of this maxim in the French law, seems to result from an express ordinance of Louis XIV. (2 Val., 59), by which it is de- clared that freight is not an insurable interest. So far from its being considered a distinct ob- ject of insurance, as with us, the policy of their law does not permit it to be insured at all. -In practice, however, the freight, with them, although not insured eo nomine, is usu- ally added to the value of the ship, and blend- ed in the same policy. It therefore naturally follows that an abandonment on such a policy would transfer the title to the freight, as well as to the ship, and they may with propriety, in their law, be considered as attached to and inseparable from each other. But with us it is not so; the freight is not an accessory; it is in itself a principal, and treat- ing it as such, a different rule ought to prevail. I am therefore of opinion that the plaintiffs are not entitled to recover any part of the freight, and that it belongs to the person who would have been entitled to it if the voyage had been performed without any impediment. KENT, J. It does not appear to be a settled point in the English law, what is the operation of an abandonment upon freight. There is no case that I have met with in which the point came into discussion, as it respected the insurer. 381*] *In Luke v. Lyde (2 Burr. , 882) a suit was sustained by the owner of the vessel, not- withstanding his abandonment, against the shipper for a ratable freight earned previous to the abandonment. But in that case the right of freight, as between the insurer and in- sured, was not determined, nor did it come into view. The whole attention of the court appears to have been directed to the liableness of the shipper; and whether the plaintiff re- covered for himself, or as trustee for the in- surer, or what would have been the opinion of the court if the insurer and the plaintiff could have interpleaded before them in order to de- termine to which of them the freight so due belonged, we cannot Jearn from the case. The present question seems, therefore, to be res Integra, and it must be determined from the consideration of the nature of abandonment, and from the application of known and analogous principles in the law. The freight in the present case belonged to the insured, who owned the ship, and who MO abandoned her. We are not, therefore, to ex- amine what would be the operation of an abandonment of the ship, if the ship should at the time belong to a different person. Here the same person was owner of both ship and freight. Abandonment is a cession of the right of the thing insured. If accepted, it is equivalent to an absolute sale and delivery of the property, and the insurer stands in the place of the in- sured, and is entitled to all the advantages of that situation. He must, consequently, become entitled to the freight subsequently earned, for freight is incident to the ownership of the ves- sel, and follows it as closely as rent does the re- version. All the subsequent charges of the voyage must be borne by the insurer, and, as he takes the burden, he ought likewise to reap the advantage. And upon principles equally strong, the insurer must be entitled to the freight earning or accruing at the time of the i abandonment, in like manner as if a person sell I or mortgage, devise or surrender the land, after the crop sown, or if he assign the reversion be- fore the rent becomes *payable, the [*382 eiriblemtnte in the one case, and the rent in the other, will pass with the laud. If any portion of the freight had already become due, the same would undoubtedly remain with the in- sured, and not be affected by the abandonment. But the growing freight must pass with the ship, for want of a precise and definite rule of apportionment. The case of a voyage partly performed, and broken or diverted by the perils of the sea, is not susceptible of an ac- curate adjustment of a ratable freight. And although instances may be supposed, in which few difficulties would arise, yet the rules of commercial law ought to be general and per- manent, capable of being ascertained with cer- tainty, and of being applied with precision. Freight is with us a distinct insurable inter- est, and this opinion has no tendency to ren- der it less so. But although a distinct, it is so far a qualified interest, when belonging to the same person who owns the ship, that if he abandons the one he must be considered as voluntarily relinquishing the other. The in- surer is substituted for him by his own act,, and succeeds to all his rights as owner of the- ship. Freight may be a distinct subject of in- surance without losing in other respects its quality as an incident. It is not necessary that ( it should be detached from its principal, be- Vond what is requisite to render it insurable. It must still, in a great degree, be considered as merely appurtenant to the ship, and if dis- tinctly insured, it is very questionable whether the owner can preserve his claim against the insurer of the freight if he abandon the ship.' In the case before us, the freight must be considered as almost wholly earned subse- quently to the abandonment, and if any por- tion of it was earned before, there was none due at the time. The freight was merely earn- ing, and the right to it was inchoate, and not absolute, which it could only have been at the delivery of the cargo, upon the completion of | the voyage. I am therefore of opinion that the plaintiffs >49. 1. But see 3 Caines, 16 ; 1 Johnson, 433 ; 3 Johnsoiv JOHNSON'S ('ABES, 1 .. 1800 THE UNITED INSURANCE COMPANY v. LENOX. are entitled to judgment for the whole sum found by the verdict. 383*] *BENSON, J. Previous to an imme- diate consideration of the question in this cause, I would state "that if a freighted ship be- comes accidentally disabled on its voyage (with- out the fault of the master) the master has his option either to refit it (if it can be done within a convenient time) or to hire another ship to carry the goods to the port of delivery. If the merchant disagrees to this, and will not let him do so, the master will be entitled to the whole freight of the full voyage. If the ship is so disabled that the master cannot carry the goods in her, or if he cannot find a ship to carry them to the port of delivery, he shall still be paid his freight, in proportion, how- ever, only to what he has performed of the voyage; but the merchant may abandon all the goods, and then he is excused freight." This is the language of Lord Mansfield, in the case of Luke etal. v. Lyde (Burr., 882), and here as well as there, by the merchant is intended the freighter and owner of the goods, and by the master, his principal or constituent, also the owner of the ship. From this doctrine, con- sidered as premises, I deduce these conse- quences, that although the ship cannot carry the goods, and though the master cannot find another to carry them, yet that he may, never- theless, retain them until he is paid the freight, and that if the merchant refuses to pay it, on the goods being tendered to him, he shall be deemed to have abandoned them; and if he take the goods out of the hands of the master (and whether on a formal tender of them, or otherwise, is not material) without paying the freight, the law will imply a promise by him to pay what may have accrued of it; but if the goods shall have come to him by a voluntary delivery only, he may, in such case, rebut the implication by proof in fact, that there was another and express contract, respecting the freight, between him and the master, at the time of the delivery of the goods, and in con- sequence of which he accepted them, or that the master then waived it. These appear to me to be the whole of the relative rights and duties of merchant and 384*] master requisite to be *noticed, and 1 will only subjoin, as connected with the con- sideration of them, in reference to the present case, that I do not think the case above cited ought to be received as deciding further than that the merchant may render himself liable on the implied axsumpsit I have mentioned, to pay the freight, and as prescribing a rule to ascer- tain the proportion or rate of it. It is true that the suit there was by the master, the as- sured of the ship, and he had abandoned, and the assurer had accepted her; both the court and counsel, however, seem to have been prin- cipally, if not wholly, occupied in examining merely, whether the merchant, inasmuch as the goods had been delivered to him at a place to which she had come before the full voyage was performed, was still liable to pay freight for them? It was held that he was, "because it was not owing to any fault in the master that the ship had come to the place where the goods were so delivered, and when he took the goods he did not require the master to find JOHNSON'S CASES, 1. another ship to carry them to the port of de- livery." And a rule for the apportionment of the freight is thereupon given; but the further question, whether the freight was to be deemed as having accrued for the benefit of the as- sured or of the assurer on the ship, was scarce- ly, if at all, brought into view, much less dis- cussed and determined. Indeed, the reason for the adjudication, as quoted, shows most manifestly the point intended to be adjudged, so that it does not appear that the interfering claims of the assured and the assurer to t he- freight have ever fully and distinctly occurred, or* been submitted, until in the present case. The question on which these respective claims depend, I conceive to be, whether, when a ship shall be abandoned to the assurer, and be accepted by him, the freight she was earn- ing at the time of the accident, in consequence of which she was abandoned, does not also pass with her to the assurer. On this question, my opinion is in favor of the assurer, and I shall very briefly state my reasons for this opinion. *The right to the freight is not ex- [*38i> tinguished by the abandonment of the ship, and if it does not pass to the assurer it must still subsist in the assured, and if the latter, then the assurer does not, by the abandonment, acquire a perfect or absolute, but only an im- perfect or modified right in the ship. He takes her subject to a right in the assured to as much of the freight as can by any means, reasonably practicable by the assurer, still be eventually made, even as for the full voyage. The law will consider the right of the assured to the freight as the end, and will necessarily give him ever}' requisite mean to it, compre- hending the instrumentality of the assurer, which, if he withhold, the law will then further give to the assured a remedy against him by suit, for the nonfeasance. The right and its remedy, as deduced from it, are, in my con- ception, correlative, the one necessarily im- plying the other; for, to suppose aright in one person, as reserved in law to a possible event- ual benefit, and to suppose, at the same time, that the benefit may depend wholly on the volition of another, whether it shall ever come to exist, appears to me to be a legal solecism. Thus, to exemplify the result in the case under consideration, however, the plaintiffs might have calculated it most eligible for them to sell the vessel at Rivadeo for what she would fetch, and to have sent instructions there for that purpose, they would have been prevented from exercising this kind of free agency; auy cal- culation of the last loss upon the whole, al- though ever so just and advisable, would not have served as an excuse, which must have been of a nature to have answered for all the other underwriters, however numerous or va- riously circumstanced they might have been otherwise, it would have been indispensable on the plaintiffs to have refitted the ship so as to bring the goods to New York, in order that the freight on them might be received by the assured. This would be an instance of putting the burden on one for the advantage of another, without parallel; and it may easily be conceived to *happen that assurers, ]j*38<> rather than subject themselves to such a hard- ship, would refuse to accept an abandonment, 361 SUPREME COURT, STATE OF NEW YORK. 1800 however justly the assured might be entitled to make it, and who would also be obliged to persist in it, in order to his recovery for a to- tal loss; so that the property becoming thus derelict, would inevitably become utterly lost between them, when possibly by the seasona- ble interposition of either, a considerable por- tion of it might have been saved. These considerations appear to me sufficient to show that the supposed right in the assured to the freight, after an abandonment of the ship, can never be made to consist with right reason; and the least reflection will suggest that I have not pursued the case into many other consequences or questions which may take place. I will state one only, and also in reference to what might have happened in the present instance. Suppose that the ship had been lost on the passage from Rivadeo to New York, and as there would not then have been A freight, out of which the plaintiffs could re- imburse the sum they might have advanced for refitting the ship, could they have recovered it from the assured? If not, there the hard- ship of an assurer's case will appear to be ex- treme. The mistake on this subject I conceive to be in supposing that as the ship and freight may, in the first instance, be insured as distinct interests, they continue as distinct interests to every other purpose throughout, until the event either of the loss, or of the safety of the freight, shall have happened; without distinguishing that the ship is the principal, or subject, or thing which is to produce the freight, and that when the assured abandons the ship to the assurer, he transfers thereby to him his power over the ship, as the principal, and with it his power over the freight, the accessory or inci- dent; he transfers his power over the cause, nd, consequently, his right to the eventual ffect, if any. These interests may be likened to an interest in the land, and the* emblements. By a special contract, the land may be trans- 387*] ferred, and the emblements *may be re- served, otherwise they will pass with it. If the owner dies intestate, the lands descend to his heir, but the emblemcnts go to the personal representatives, and the law accordingly gives them a power over the land. They may enter on it to preserve, promote, gather, "and remove the crop. Suppose the vendor of land was, by a special contract, to insure to the vendee that the land, if sold, should always sell for a certain price; so that the vendee might at any time abandon the land to the vendor at that price; if he abandoned it while a crop was growing on it, and if the vendor should accept it, it cannot be doubted but that the vendor . LONG. [*393 Cause of Action not Due Pleading Objection. Where the defendant was sued on a note before- it was due, and put in bail and pleaded in chief, it was held that it was too late afterwards to make the objection. . THIS was an action of assumpsit on a prom- issorv note. The defendant was arrested on the 20th of August, 1799, by virtue of a capias ad respondendum, tested in July Term, and returnable in October Term. The note on which the suit was commenced did not be- come due until the 21st of August, and was payable on the 24th. A verdict was taken for the plaintiff, sub- ject to a case containing the above facts. Mr. Hawes for the defendant. Mr. Evertson, contra. Per Curiam. If a person be arrested before the debt is due, he should apply, in the first instance, or to a judge at his chambers, to be discharged, and not put in bail and plead to the action. The defendant, in this case, having filed bail and pleaded in chief, come* too late to make this application. Rule refused. Distinguished 8 Cow., 205. Cited in 2 Johns. Cas., 225 ; 3 Wend., 172 ; 2 E. D. S., 76 ; 3 Code Rep., 171. PERCIVAL v. JONES. Point Reserved Special Verdict. A point reserved by the judge at N. P. is like a special verdict, and the plaintiff must prepare the case and open the argument. THE court decided that where a point is re- served by the judge at a circuit or the sit- tings, it is the nature of a special verdict, and the counsel for the plaintiff is to prepare the case and open the argument. Cited in Col. & C., 372 ; 1 Caines, 99 ; 2 Caines, 108 ; 38 Ind., 308. *DILL T. WOOD. [*394 Cost* -Notice of Trial Failure Objection 1o- Defective Process. Costs were granted for not proceeding to trial according to notice, though the defendant's objec- tion to the jury process was the reason why the cause was not brought on. JOHNBOS'S CASKS, 1. 1800 BIUD ET AL. v. SANDS. 394 OWMAN, for the defendant, moved for I be given, by the first day of the next term, or costs, because the plaintiff had neglected to bring the cause to tfial at the last circuit, pursuant to his notice. Mr. Elmendorf, contra, objected that the reason why the cause was not tried, was that when the cause was called the defendant's counsel made an objection to the jury process, which was admitted to be void. Per Curiam. The defect of the jury process was owing to the mistake of the plaintiff's attorney, and the defendant was under no obligation to come to trial on such pro- cess, nor had the plaintiff any right to re- quire it of him. The defendant must take his rule. Rule granted. be nonsuited. He contended that though the view is granted at the instance of the tenant, the demandant is bound to sue out the writ. (He cited Booth, 40.) Per Curiam. Take your rule. Mule granted. BIRD ET AL. . SANDS. Reference Absence of Material Witness Postponement. On the affidavit of the defendant of the absence of a material witness, who had gone abroad, the meeting 1 of the referees in the cause was postponed for two months. TITORTMAN, for the defendant, moved to VV postpone the meeting of the referees in this cause until the return of a witness from abroad, who was expected in two months. Mr. Pendleton, contra, objected that the cause had been at issue more than two years, and the defendant had not taken out a com- mission; and had refused to join a commission sued out by the plaintiffs in January, 1798, to take the examination of the same witness. Per Curiam. The delay in this cause is not owing to the defendant, but to the plaintiffs. The cause is now ready to come before the referees, and this motion is to be considered as the first application to put off a trial, on account of the absence of a material witness. The power given by the act to the defendant to sue out a commission in his favor, and his 395*] omission to do it, cannot *vary the ordinary practice. The defendant may have a rule to put off the meeting of the referees for two months, unless the witness should re- turn sooner. Rule granted,. Cited in 30 Johns., 476. EARL v. LEFFERTS. Consolidation Rule Judgment Costs Fine. Under a consolidation rule after judgment in one cause, the defendants in the other causes have eight days to pay the money, after judgment and taxation of costs ; and if the judgment is rendered in Albany, and the defendants live in New York, they have fourteen days, and so vice versa ; but the plaintiff may, for his own security, enter up judg- ments in the other causes immediately, but the costs are to be deducted if the money is paid in time. A CONSOLIDATION rule has been entered in this and several other causes, and a judgment having been entered in one of the causes, a question now arose whether the plaint- | iff might enter up judgment in the other causes immediately. Per Curiam. The defendants in the other causes may have eight days to pay the money after judgment in the cause which has been tried, and taxation of the costs in all other causes. The plaintiff may, however, pro- ceed immediately *to perfect his judg- [*3JK> ment, for his better security, but if the defendants pay the money within the eight days, they shall be exempted from the costs of entering up such judgments. Where the judgment is rendered at Albany, and the defendants live in New York, and vice versa, they shall be entitled to fourteen days, within which to pay the money; but if pay- ment is not made within the time allowed, or if the plaintiff does not choose to enter his judgment until after the time has expired, he may then enter it nunc pro tune, and have his full costs. SCOFIELD ET ux. 9. LODIE. Writ of Right Demand of View Nonsuit. Where the tenant in a writ of right demands a view, it is the duty of the demandant to sue out the writ of view, and if he does not, he will be non- suited. THE tenant in this cause at a previous term demanded a view, but no writ for that purpose had been sued out by the demandant. Mr. Munro now moved that the demandant sue out the writ of view, and cause view to ! JOHNSON'S CASES, 1. STANSBURY, Assignee of the Sheriff, &c. , DURELL. 1. Order of Court Further Order at Cham- bers. 2. Stay of Proceedings Costs Tends r of Costs. 3. Special Bail Justification. After the order of the court in a cause 1 , a further order of a judge, at his chambers, on the same matter, is irregular, When the proceedings in a cause are stayed on payment of costs, it is the duty of the defendant to seek the plaintiff and tender the costs. Special bail need not justify unless required. THE defendant, at the Iftst October Term, obtained a rule to stay the proceedings on the bail bond, no person appearing to oppose the motion. At the last January Term, application was made to vacate the rule of the preceding term on the ground of a want of notice; and because one of the plaintiffs was not truly named in the bail- 865 39 SUPREME COURT, STATE OF NEW YORK. 1800 piece which had been filed in the original cause, and the bail had not justified. The court ordered that the cause should be opened and be considered in the same situations at the commencement of the last term, and that proceedings in the suit on the bail-bond be stayed on payment of costs, the bail justify- ing, if required, the name in the bailpiece to be corrected, and the defendant to confess judgment in the original suit. The defendant's attorney, supposing that the order of the court extended no farther than to vacate the rule of October Term, applied to a judge during the last vacation, and obtained an order generally to stay all proceedings to this term, which was regularly served on the plaintiff's attorney, who, con- sidering it as irregular, proceeded in the bail- bond suit. 3O7*] *Mr. Riggs, for the defendant, now moved to set aside all the proceedings since the last term, as being contrary to the judge's order, and that all proceedings on the bail- bond be stayed on the terms offered at the last term. Mr. 8. Jones, Jun., contra. Per Curiam. As all the proceedings had been stayed at the last term, upon certain con- ditions, those conditions should have been first complied with before the defendant could be entitled to the benefit of the rule; and it was certainly irregular to apply to a judge at his chambers for any further order. It was the duty of the defendant to have sought the plaintiff and tendered the costs. But as there appears to have been some misapprehension of the rule at the last term, proceedings shall now be stayed on the same conditions ap at the last term, and on payment of all subsequent costs. Rule granted accordingly. MARSTON0. LAWRANCE AND DAYTON. 1. Plea Former Suit Pending Entry of Nil Capiat Reply Costs. 2. Id. Abatement Verification. Where the defendant pleads another action pend- ing, the plaintiff may enter a nil caplat per breve, in the first suit, before a replication to the plea in abatement, and that without leave of the court or payment of coste. Citations Comyns Abat., I., 11, 14. 366 THIS was an action on a promissory note, by the indorsee against the indorsers. The defendants pleaded in abatement a former suit by the same plaintiff, against them, on the same note to which he had pleaded in abate- ment, that one Francis Child was a partner, and ought to have been joined with them, which suit was pending at the commencement of the present action, and is still pending. Rep- lication, nul tiel record, and issued. It appeared that on the 13th of December, 1799, after receiving the plea in abatement, a discontinuance was entered by the plaintiff in the first suit; that the present suit was com- menced before October Term, the declaration filed the 28th of December, and the plea in abatement received the 31st of December. On the 13th of January, 1800, a nil capiat per breve was entered in the first cause, and on the 16th of January, the replication was filed in the present suit, and issue joined thereon. * Mr. Hanson, for the plaintiff , stated [*398 the question to be, whether the discontinuance of the former suit must be entered before the new suit is commenced or at any time before the replication of nul tiel record was filed. He contended that the discontinuance, being mat- ter of right, might be entered at any time be- fore replication. (He cited 1 Cromp., 188; Barnes, 257; 1 Leon., 105; Impey's K. B., p. 169; 1 Sellon, 304.) Mr. Pun-, for the defendants, contended that after a plea, the plaintiff cannot discon- tinue without leave of the court. Mr. Harison, in reply, insisted that no leave was necessary in any case where there was not room for the court to impose terms or con- ditions on the defendant, which was the case here. Per Curiam. It is sufficient if the nil capiat per breve be entered at any time before repli- cation in the second suit. The cases cited show that a discontinuance may be entered at any time before plea pleaded in the second suit, without leave and without costs. In a plea of abatement, the defendant must verify his whole plea. (Comyns Abat., I., 11).' If hie does not, he must answer over, and where the plea is triable by record, there may be a judg- ment of re&pondeas ouster, as well as where the trial is by certificate or inspection. Comyn* Abat., I., 14). Judgment of respondeas ouster. Cited in 16 Wend., 638; 10 N. Y., 501 ; 3 How. Pr., 416; 10 How. Pr., 86. JOHNSON'S CASES, 1 . [END OF APRIL TERM.] SUPREME COURT OF JUDICATURE STATE OF NEW YORK, JULY TERM:, IN THE YEAR isoo. 399*] * JACKSON ex dem. CULVERHOUSE, v. BEACH. 1. Alien Release to, by Trustee Naturalization. 2. TitU in State Office Found. 3. Natu- ralization Retroactive. A conveyed land to B in trust for C who was an alien. C afterwards, and before any office found, became duly naturalized, and B released the estate held in trust by him. It was held that the convey- ance to C was valid. No title in case of alienism, vests in the people of the State, until after office found. Naturalization has a retroactive effect, and confirms the former title. Citations Coke, 53 ; Powell on Devises,317 ; 7 Term R., 398 ; 1 Bac. Abr., 81,133 ; 2 Black. Com., 249, 250 ; Co. Litt., 8a: Ibid., 129 a; 4 Black. Com., 381, 482; Shop. Touch., 82; Cowp., 599; 2 Wilson, 275. THIS was an action of ejectment. At fthe trial of the cause at the last circuit in the city of New York, the following facts were either proved or admitted: One Obadiah Wells, being seized of the premises in question, on the 8th August, 1792, conveyed the same to one William Cogdill, who, on the 14th May, 1793, conveyed the premises to one John 8. Hunn, by deed, as follows: " This indenture," &c. " Whereas it was lately agreed by and be- tween the said William Cogdill and William Culverhouse, at present of the city and county aforesaid, but late of the island of Great Britain, that the said William Cogdill should, for the sum of 100 current money of the State of New York, release, convey, and confirm in fee-simple unto the said William Culverhouse, or such other person or persons as he should appoint, all and singular the lot of ground hereafter mentioned, bounded, and described, and that free and clear, and *f reely and clearly, [*4OO discharged of and from all incumbrance* whatsoever, except one certain mortgage exe- i cuted by Obadiah Wells, late owner of the premises hereinafter mentioned, unto the commissioner or commissioners of the loan of- fice of the State of New York, upon this lot, together with other lots; 71 of the said mort- gage being agreed to be upon, and to be paid by the proprietor or owner of the said lot here- in to be conveyed; which 71 is agreed be- tween the said Cogdill and Culverhouse, shall be a part of the said purchase money, and to be paid and discharged by the said William Culverhouse, not having as yet resided two whole years within the State, 'is, by the laws thereof, barred from holding real estate there- in until the expiration of the said two years, and until he hath taken the oath of riaturali/a- tion agreeable to the laws of the State of New York, to remedy which . inconvenience, the said William Culverhouse hath appointed John S. Hunn to take the title of the said lot from the said William Cogdill; but in trust for the only use, benefit, and behoof of him, the said William Culverhouse, his heirs and as- signs. Now, this indenture witnesseth, that the said William Cogdill, in pursuance of the aforesaid agreements; and also for and in con- sideration of the said sum of 100 to him in hand paid, or secured to be paid by the said William Culverhouse, at and before the ensealing and delivery of these presents, the NOTE. Aliens, their rights as to real property. By purchase an alien can take and hold against all the world except the State, and against the State until office found. Fairfax v. Hunter, 7 Cranch, 603 ; Orr v. Hodgson, 4 Wheat., 453 ; Gouveneur v. Robertson, 11 Wheat., 332 ; Smith v. Zaner, 4 Ala., 99 ; Scanlan v. Wright, 13 Pick., 523 ; Bradstreet v. Supervisors, 13 Wend., 546 ; Munro v. Merchant, 28 N. Y., 9; Jackson v. Lunn, 3 Johns. Cas., 109; Lar- reau v. Davignon, 5 Abb. Pr., N. S., 307; Fox v. Southack, 12 Mass., 143 ; People v. Conklin, 2 Hill, 68 ; Wadsworth, v. Wadsworth, 12 N. Y., 376 ; Jones v. McMaster, 20 How. (U. S.), 8 ; Jackson v. Adams, 7 Wend., 367 ; Halstead v. Com'rs of Lake, 56 Ind., 303 ; JOHNSON'S CASES, 1. People v. Snyder,41 N. Y.,397 ; 1 McCord (S. C. Ch.), 370. See Priest v. Cummings, 20 Wend., 338. By descent an alien cannot take lands. He has no inheritable blood. See note to Jackson V. Lunn, 3 Johns. Cas., 109. Naturalization, its effect on alien's right to hold real property. See Sutliff v. Forgey, 1 Cow., 89; Vaux v. Nesbit, 1 McCord (S. C. Ch.), 370; Heney v. Brooklyn Benevolent Society, 39 N. Y., 333; People v. Conklin, 2 Hill, 68. Disabilities of aliens are affected in most of the States by statutes. For a summary of the statutory provisions, see 1 Wash. Real Prop., pp. 74, 75 (4th Ed.). See N. Y. Rev. Stot. (7th Ed.), pp. 2,164-2,174. * 307 400 SUPREME COURT, STATE OP NEW YORK. 1800 receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, released, con- veyed and confirmed, and by these presents doth grant, bargain, seal, alien, reraise, release, convey and confirm unto the said John S. Hunn* in his actual possession now being, and to his heirs and assigns forever, all," &c. On the 12th January, 1795, Culverhouse, the lessor of the plaintiff, was duly naturalized; and on the 26th February following, Hunn, the trustee named in the above mentioned deed, for the consideration of ten shillings, released to him by deed the estate so held in trust. 4O1*] *The words used in the release were: "John S. Hunn hath remised, released, and forever quitclaimed, and by these presents doth remise, release, and forever quitclaim unto the said William Culverhouse, and to his heirs and assigns, all the right, title, interest, property, possession, claim and demand of him, the said John S. Hunn, his heirs and assigns, of, in, and to all, &c., and the reversion and rever- sions, remainder and remainders, rents, issues, and profits thereof, of him, the said John S. Hunn, his heirs and assigns. To have and to hold all and singular the right, title and inter- est of him, the said John S. Hunn, his heirs and assigns, of, in, and to the above described premises and appurtenances, unto him, the said William Culverhouse, forever." It was admitted that the lessor of the plaint- iff was never in the actual possession of the premises, which were vacant. After the release from Hunn to Culverhouse, the present action was brought to recover the possession. No office had been found, nor any proceedings in- siituted in behalf of the people of this State. Messrs. Hamilton and Riker for the plaintiff. Mr. Wbrtman, contra. Per Curiam. It does not lie with the de- fendant to object to the alienism of the lessor of the plaintiff; for the interest granted to 'Culverhouse was not forfeited so as to vest the title in the people of the State-, until after office found (Co., 53, Page's case; Powell on Devises, 317; 7 T. R, 398; 1 Bac. Abr., 81, 133); and until then he was competent to hold the land against third persons. Even if the defendant could make this objection, yet the lessor of the plaintiff having been naturalized, that naturali- zation has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture, and a confirmation of his former title (2 Bl. Com.. 249, 250; Co. Lit*., 8 a; Ibid, 129 a; 4 Bl. Com., 381, 482.) Whether the convey- ance to Hunn, therefore, be considered as vest- ing the estate in Culverhouse, by force of the statute of uses, or not, it is immaterial to in- quire, provided the deed from Hunn to Cul- verhouse was sufficient to vest the legal estate. As this release recites the trust, and was for 4O2*] *the further consideration of ten shil- lings, we- think it a good conveyance. The words are sufficient to raise a use in favor of Culverhouse, and the consideration ought to determine the effect of a deed more than the formal words used in it. A release may oper- ate as a grant (Shop. Touch., 82; Cowp., 599; 2 Wilson, 275), and vice verm. Where the in- tent of the parties appears to have be*en to pass the estate, courts are inclined to give effect to 86S that intent as far as possible. In the present case the intent is obvious, and the deed, in judgment of law, may be considered as a bar- gain and sale. Again, as no adverse posses- sion appears to have existed at the time (and it is not to be presumed), it may be inferred that the possession accompanied the deed; and the release may be made effectual by considering it as a grant, or that possession went with it, as circumstances may require. Judgment for tJie plaintiff. Distinguished 3 Johns. Cas., 120. Cited in 4 Wend., 67; 7 Wend., 368 ; 16 Wend., 638 ; 28 Barb., 661 ; 7 Leg. Obs., 194., DOE T. ROE. 1. New Trial Newly Discovered Evidence Isue Out of Chancery. 2. Evidence Deed Not Ackno^eledgcd Record Copy. On an affidavit of newly discovered evidence, a new trial was granted, on an issue out of the Court of Chancery. A paper purporting to be the record of a deed, and not duly acknowledged, is a nullity, and not admissible in evidence, either as a record or as a copy of a deed. was a feigned issue, directed out of -L the Court of Chancery, and tried before Mr. Justice Kent, at the Circuit in New York, on the 24th of July, 1799. The issue was, "whether a certain deed alleged by the said Richard Roe to have been made, executed, and delivered by one Cornelius Cozine, the elder, deceased, in his lifetime, whereby he did give and grant, bargain, sell, release, and convey unto his two sons, Cornelius Cozine, the younger, and Balm Johnson Cozine, and their heirs and assigns, all that certain tract of land, &c., at Bloomingdale, was made, exe- cuted, and delivered, or not." On the trial, the following facts appeared: Cornelius Cozine the elder was in possession, and reputed to be the owner of the farm in question. Some years before his death, he removed to the city of New York, where he chiefly resided, until his death in 1765. When he removed *to the city, his wife and [*4O5 daughter and his two sons above named re- mained on the farm, which he occasionally visited. His wife died during the American war, and his two sons, Cornelius and Balm, after the removal of their father, continued to reside on the farm, and to cultivate it as their own, until his death. One of the witnesses testified that he had h'eard Cornelius Cozine the elder declare that the farm belonged! to his said sons, and that he was sorry that they had not made a better use of it. Cornelius Cozine the younger died in 1773, and Balm Johnson Cozine died -during the American war, and they both continued in possession of the farm until their deaths re- spectively. In 1771, B. F. Cozine built a dwelling-house on the farm, and about the year 1773, he caused a barn to be built upon it. The counsel for the defendant then offered in evidence the original record of a deed pur- porting to bear date the 23d of April, 1759, and to have been duly executed by Cornelius CO- JOHNSON'S CASES. 1. GOELET V. M'KlNSTRY. 403 zine, the elder, to his two sons above men- tioned, by which, in consideration of 1,000, he conveyed the farm in question to them, as joint tenants in fee-simple. The deed ap- peared to have been recorded in the office of the Clerk of the City and County of New York, on the application of Cornelius Cozine, of Bloomingdale, on the 10th December, 1761, in consequence of the following proof and certificate indorsed thereon, to wit: "City of New York, ss. Thomas Clement, of the city of New York, scrivener, maketh oath that he wrote the within instrument as a clerk, and was present and saw the within- named Cornelius Cozine, Sen., sign, seal and deliver the within instrument as his act and deed, for the uses therein mentioned, and that he saw at the same time, the within-named Nathaniel Holmes and Henry Green sign their names as witnesses thereto, in the presence of the said Cornelius Cozine, and also of this de- ponent, and further this deponent saith not. " Thomas Clement , "Sworn, 9th December, 1761, before me, ' ' William Smith. " 4O4*] *"Be it remembered, that, on the 9th day of December, in the year of our Lord 1761, personally appeared before me, William Smith, one of* His Majesty's council for the province of New York, the above-named Thomas Clement, of the city of New York, scrivener, and made the affidavit above men- tioned; and I, having perused the within in- strument, and finding therein no erasures or interlineations, do allow the same to be re- corded, and to take effect, as the law requires. " WILLIAM SMITH." The original deed was not produced, and the defendant's counsel said that they could give no particular account of it; and the judge refused to let the above record be read to the jury, in evidence of the deed alleged to have been made, executed, and delivered by Cor- nelius Cozine the elder to his two sons above named, unless some proof could be given of the loss of the original deed : and a verdict was thereupon found for the plaintiff. On a case made, containing the above facts, and also on affidavits of the discovery of new and material evidence since the trial, a motion was now made to set aside the verdict, and for a new trial. The affidavits stated, that one Forman, the father of the deponent, had in his possession, hefore the late war, several papers belonging to Cornelius Cozine, and Balm F. Cozine, and among them a deed, said to be from Cornelius Cozine the elder to his two sons, for the farm at Bloomingdale, which were lodged with the said Forman for safe keeping, and were kept in a wooden box; that a number of the papers were destroyed by the rats having eaten through the box, and that three or four years ago, the top of the box was off; that having searched the box the day before, and made diligent inquiry in the family, no papers belonging to the Cozines could be found. Messrs. Hamilton, Hanson, and Ogilvie, for the plaintiff. JOHNSON'S CASES, 1. N. Y. REP., BOOK 1. Messrs. Pendleton and Troup for the defend- ant. Per Curiam. (Absent, the Chief Justice.) As it is suggested that further light can be thrown on the case, and *new evi- [*4O5 dence appears to have been discovered, we think, without expressing any opinion on the merits of the case, that a new trial ought to be granted on the payment of costs. We con- sider the paper offered at the trial and rejected as a nullity, and wholly inadmissible; it is neither a record, nor a copy of a deed. New trial granted. 1 Cited In 20 Wend., 429; 12 Barb., 387; 3 Wood & M., 356. GOELET . M'KlNSTRY. Partnership Purchase Action Against Sur- vivor Allegations. If one of the two partners in trade purchase goods for both, and one of them dies, an action of indebit- atus assumpsit may be brougnt against the sur- vivor, without taking notice of the partnership, or the death of one and the survivorship of the other. Citation Comb., 383. THIS was an action of assumpsit for goods sold and delivered to the defendant. The cause was tried at the last circuit in the city of New York, when a verdict was found for the plaintiff, for $430.85, with liberty for the plaintiff to alter the verdict to $234.92, in case the court should be of opinion, on the follow- ing facts, that the plaintiff was not entitled to the full amount of the verdict. The plaintiff gave in evidence an account for goods sold and delivered to the defendant alone, which, with the interest, amounted to $234.92. He then offered in evidence another account for goods sold and delivered by him to the de- fendant and one Hatch, as partners. It was proved that Hatch was dead, and that the defendant had since acknowledged the ac- count to be just, and, after striking the bal- ance, had promised to pay it. This balance, when added to the sum due on the separate account of the defendant, made the amount found by the verdict. The declaration stated that the defendant alone was indebted, without taking notice of the partnership between him and Hatch, or that Hatch was dead, and that the defendant had survived. *Mr. Troup, for the plaintiff, cited [*4O6 Comb., 383; 2 Term Rep., 479. Per Curiam. The case of Hyatt v. Hare (Comb., 383), is in point. It was there de- cided that " if there be two partners in trade, and one of them buy goods for them both, and the other dieth, the survivor may be charged by indebitatus assumpsit generally, without taking notice of the partnership, or that the 1. The original suit is still pending in the Court of Chancery. 24 369 406 SUPREME COURT, STATE OF NEW YORK. 1800 other is dead and he survived." This is not only reasonable, but well settled law. The plaintiff must have judgment. Jadgmentfor the plaintiff. Cited in 15 Wend., 318 ; 3 McLean, 167. LA PLACE t>. AUPOIX. 1. Trover Defendant's Admission. 2. Ibid. Demand. If the defendant admits that he had the goods of the plaintiff, and that they are lost, this is sufficient evidence of a conversion to maintain trover, with- out showing a demand and refusal. A demand of payment or satisfaction generally, for the goods, is a sufficient demand. Citations 1 Esp. t Cases, 31 ; 4 Term R., 260 ; 1 Burr., 393. THIS was an action of trover for a quantity of indigo. Plea not guilty. The cause was tried at the last circuit before Mr. Chief Justice Lansing. The plaintiff gave in evi- dence a written note, without date, from the defendant to the plaintiff, in the words follow- ing: " Sir and Friend, ' You may rely on my diligence to make the most of your indigo, of which you have a cask and six barrels and a half, weighing nett 1,373 pounds. I will hold the proceeds to your orders when collected." A witness deposed that he was present at a conversation between the plaintiff and the de- fendant, before the commencement of the present action, in which the plaintiff demanded the money for his indigo ; that the defendant said that the goods were lost, and that the in- surance was not yet settled; that the plaintiff re- plied he had not authorized the defendant to sell them, or to make insurance. The wit- ness understood from the conversation that the property had been delivered to the defendant in the island of Hispaniola, and had been shipped to the United States; and that the in- surance had been made in England, but was not yet paid. 4O7*] *The counsel for the defendant in- sisted that the plaintiff had failed in his proof, and that a verdict ought to be given for the defendant. The judge observed to the jury that in a case of this nature it was necessary to prove a de- mand of the goods specifically, unless there was evidence of their having been converted into money; and that where there was such evidence, proof of a demand of payment, and refusal, was sufficient to establish a conver- sion; that although he was inclined to think that the plaintiff had not produced such evi- dence, nor supported his action, he thought the equity of the case was on his side; and that if, therefore, the jury were satisfied that the property in question had been turned into cash at the time of the demand of payment, they might then consider the refusal as suffi- cient proof of conversion, and find a verdict for the plaintiff. The jury found for the plaintiff accordingly, for the full amount of the indigo. 370 A motion was now made to set aside the verdict and for a new trial. Messrs. A. Bleecker and Hopkins for the plaintiff. Mr. B. Livingston for the defendant. Per Curiam. The defendant in this case admitted that he had the goods in question, and that he had lost them. This is sufficient evi- dence of a conversion; it would have been idle to make a formal demand of goods, after the defendant had declared that they were lost. Besides, the plaintiff demanded payment and satisfaction generally, and that was sufficient. (Thompson v. Shirley and Body, 1 Esp., Cases, 31; 4 Term Rep., 260; 1 Burr., 393.) Rule refused. Cited in-6 Wend., 607 ; 48 N. Y., 495 ; 5 Barb., 564 ; Hemp., 19. *MACKAY [*4O8 v. RHINELANDER, HARTSHORNE ET AL. 1. Marine Insurance Misrepsentatwns length of voyage Question for jury. 2. Agent Witness Competency. If a vessel be represented as out "about nine weeks," when in fact she has been out ten weeks and four days, it is not a material misrepresenta- tion, provided the latter period be within the usual time of the voyage ; and whether it be so or not. is a question of tact for the jury to decide. An agent of the insured who applied to the broker to have the policy effected, like all agents, is a competent witness, ex necessitate. THIS was an action on a policy of insurance made upon the brig called the Leonard, on a voyage from Boston to Surinam. The cause was tried at the last November Circuit in the city of New York, before Mr. Justice Radcliff. The interest of the plaintiff, and the loss of the vessel by capture and condemna- tion were proved, and that the usual prelimin- ary proofs had been given. 1 1. These preliminary proofs, and the practice of requiring evidence of their having been exhibited to the insurer before the commencement of the ac- tion, originated from a particular clause inserted in the New York policies that " the loss is to be paid in thirty days after the proof thereof." NOTE. Marine insurance, representation. Representation is an affirmation of some material fact, extrinsic to the policy, or an allegation which would lead the mind to the same conclusion. 3 Kent Com., 282 ; Livingston v. Md. Ins. Co., 7 Cranch, 506 ; 1 Parsons Marine Ins., 402, et seq. Distinguished from warranty in that warranty is inserted in the policy, must be Strictly complied with, and, to effect policy, need not be material. Macdowall v. Eraser, 1 Doug., 280 ; Pawson v. Wat- son, Cowp., 785; DeHahn v. Hartley, 1 T. R., 343 ; Callaghan v. Atlantic Ins. Co., 1 Edw. Ch.. 64; Suck- ley v. Delaneld, 2 Caines, 222 ; 1 Parsons' Marine Ins., 408 ; Augusta Ins. Co. v. Abbott 12 Md., 348; Mis- representation, if material, avoids the policy. Fitsherbert v. Mather, 1 T. R., 13; Columbian Ins. Co. v. Lawrence, 2 Pet., 25 ; Lewis v. Eagle Ins., Co., 10 Gray, 508; 17 Wend., a5fl; Hazzard v. N. E. Mar. Ins. Co., 8 Pet.. 557; Dennistown v. Lilie, 3 Bligh., 202; Macdowall v. Fraser.l Doug., 260; Au- gusta Ins. Co., v. Abbott, 12 Md., 348. The test of materialitu is not whether the fact could or did effect the risk, but whether it would JOHNSON'S CASES, 1.. 1800 MACKAY v. RHINELANDER, HAKTSHORNE, ET AL. 408 The insurance was effected pursuant to a written order for that purpose, dated the 9th August, 1798, and which stated the vessel as having been out ' 'about nine weeks. " A witness stated that it was represented, at the time the policy was underwritten, that the nine weeks were to be computed from the 3d August, 1798, and that this was so admitted by the plaintiff in a case containing the facts agreed to be submitted to referees. The Leonard sailed from Boston on the 21st May, 1798, for Surinam, and was captured on the 21st June, and sent into Cayenne, and there condemned as prize. Several merchants and shipmasters were sworn as witnesses, some of whom stated their opinion to be that the difference between nine weeks, and ten weeks and four days, on such a voyage was material, and would enhance the risk; and that a vessel out ten weeks was out of time, the usual passage from Boston to Surinam being from twenty-five to forty days, and home, from twenty-five to thirty-five days; others stated that the passage from Boston to Surinam was from thirty -five to sixty and ninety days; one witness testified, that he had known passages of four and five months. 4O9*] *The agent of the plaintiff who pro- cured the insurance was offered as a witness, to prove the order given to the broker, and what representations were made. He was objected to as interested in showing that he had followed his instructions; but this objec- tion was overruled by the judge. The wit- ness stated that when he first applied to the broker, he gave him a letter of the plaintiff, dated the 3d Angust, 1798, in which he stated the vessel to be out about nine weeks; that the written order was afterwards given to the broker, and the word "about" was interlined in it after advice of the loss was received; that the representation to the , defendants was that the vessel had been out about nine weeks. The judge charged the jury, that the word "about," as used in the representation, was of an indefinite meaning, and not capable of a precise determination: but ought to be con- strued according to the subject to which it applied, the voyage insured ; that to have reference to the time within which the vessel might probably be heard of, in order to deter- mine whether she was so far out of time as to increase the risk, would be too nice a calcula- tion; that he thought the weight of evidence in favor of the fact that the vessel had not, at the time the policy was underwritten, been out beyond the usual term of such a voyage; and that, therefore, the difference between nine weeks, and ten weeks and four days, was not so material to the risk that it ought to vacate the policy. The jury found a verdict for the plaintiff. A motion was now made to set aside the ver- dict, and for a new trial. 1. Because of the misdirection of the judge. 2. Because the agent of the plaintiff was an inadmissible witness. 3. Because the verdict was against evidence. Messrs. Hamilton and Evertson for the plaintiff. Mr. Harison and Mr. 8. Jones, Jun., for the defendants. *Per Curiam. The representation [*41O that the vessel was out about nine weeks, when, in fact, she had been out ten weeks and four days, was not material, as no fraud was pretended, since it appeared that a passage of ten weeks and four days was within the usual period of a voyage from Boston to Surinam; because no more presumption of loss could arise in the one case than in the other, and the only use in stating the time is to enable the insurer to estimate the risk. Now whether ten weeks and four days would be within the usual time was a fact for the jury to deter- mine, according to the weight of evidence. From this view of the case, it is unnecessary to examine the meaning and effect of the word " about," used in the representation to the insurers. The cause has been submitted to the jury on the weight of evidence, and not considering the verdict as against evidence, we are not disposed to disturb it. The agent of the plaintiff, Mr. Codman, like all other agents, was a competent witness, ex necessitate. We are therefore of opinion that the de- fendants must take nothing by their motion. Rule refused. N. B. The plaintiff in this cause having died after the verdict, and subsequent to the time the judgment might have been entered on the return of the postea, had it not been .suspended by a case made for a motion for a new trial, the court ordered the judgment to be entered for the plaintiff nunc pro tune, as of the term subsequent to the verdict. Cited in-4 N. Y., 348 ; 67 N. Y., 202 ; 4 Barb., 524 ; 8 How. Pr., 246; 52 How. Pr., 161 ; 9 Abb., 22; 2 Hilt, 319. reasonably affect the insurers opinion. Seaman v. Fonereau, Strange, 1183; Farmers Ins. Co. v. Snyder, 16 Wend., 481 ; Ely v. Hallett, 2 Caines, 59 ; Lynch y. Dunsford, 14 East, 495. Question of materiality, in general, for the juri/. N. Y. Firemen Ins. Co. v. Waidon, 12 Johns., 513; Livingston v. Delafleld, 1 Johns., 522 ; Barnewall v. Church, 1 Caines, 236 ; Farmers Ins. Co. v. Snyder, above cited ; Livingston v. Md. Ins. Co., 6 Cranch, 274? Md. Ins. Co., v. Ruden, 6 Cranch, 338; M'Lan- ahan v. Universal Ins. Co., 1 Pet., 170. Representations as to the future. Dennistown v. Lilie, 3 Bligh., 202; Bowden v. Vaughn, 10 East., 415; Rice v. N. E. Mar. Ins. Co., 4 Pick., 439; Alston v. Mechanics Mutual Ins. Co., 4 Hill, 329 ; Bryant v. Ocean Ins. Co., 22 Pick., 200 ; Whitney v. Haven, 13 Mass., 172 ; Hubbard v. Glover, 3 Camp., 313. Duty of assured to state rumors. Lynch v. Hamil- JOHNSON'S CASES, 1. ton, 3 Taunt., 36; Lynch v. Dunsford, 14 East., 494; Ely v. Hallett, 2 Caines, 57. Usage as modifying insurance contracts. Mc- Gregor v. Ins. Co., 1 Wash., C. C., 39; Hone v. Mutual Safety Ins. Co., 1 Sandf . Super., 137 ; Mutual Safety Ins. Co. v. Hone, 2 N. Y., 235; Mercantile Ins. Co. v. State Ins. Co., 25 Barb., 319 ; Rankin v. Am. Ins. Co., 1 Hall, 616; Mobile Marine Dock Mut- ual Ins. Co. v. McMillan, 27 Ala., 77; Columbian Ins. Co. v. Catlett, 12 Wheat., 383; Taunton Copper Co. v. Merchants Ins. Co., 22 Pick., 108; Winsor v. Dillawav, 4 Met., 221; Hazzard v. N. E. Mar. Ins. Co., 8 Pet., 557. Particular representations held material or other- wise. In addition to cases already cited, see Alsop v. Coit, 12 Mass., 40 ; Kirby v. Smith, 1 B. & Aid., 672 ; Irvin v. Sea. Ins. Co., 22 Wend., 380 ; Williams v. Delafleld, 2 Caines, 329. 371 411 SUPREME COURT, STATE OP NEW YORK. 1800 411*] *ANDREWS v. BEECKER. Assignment Bond Release Notice Plead- ings. Where the obligor of a bond, after notice of its being assigned, took a release from the obligee, and then pleaded it to an action brought by the assignee in the name of the obligee, and tne plaintiff replied the prior assignment, the replication was held good, and the release was considered as a mere nullity. THIS was an action of debt, on a bond dated 14th January, 1799, conditioned to execute a certain deed therein mentioned. The defendant pleaded a release given to him by the plaintiff, dated the 23d September, 1799, of all suits, debts, bonds, &c. The plaint- iff replied that on the 18th January, 1799, he assigned the bond to Adams & Parish, of which the defendant had due notice. To this replication there was a general demurrer and joinder. Mr. Woods, in support of the demurrer. Mr. Riggs, contra. Per Curiam: The replication is clearly good. A release after the assignment of the bond and notice to the defendant is a nullity, and ought not to be regarded. As the demur- rer does not appear to be frivolous, the defend- ant may withdraw it on payment of costs, and rejoin. ' Approved 11 Johns., 49 ; 13 Johns., 22. Cited in 2 Johns. Gas., 260 ; 3 Johns., 426 ; 5 Johns., 194 ; 8 Johns., 154 ; 15 Johns., 407 ; 17 Johns., 292 ; 19 Johns., 97 ; 6 Hill, 239 ; 47 How. Pr., 244, 445. 412*] *POST v. VAN DINE. Attachment SforiffBail Tender of Money Costs. Where the defendant tendered the money during court, having put in bail, which was excepted to, and the plaintiff did not ask for a trial, the court refused to fix the sheriff by an attachment. capias in this cause was returnable at 1. the last April Term. The declaration was filed de bene esse, on the 6th of May. On the llth of June the plaintiff received notice of special bail, and on the 13th excepted to the bail. The rule for bringing in the body of the defendant having expired on the llth of July, the plaintiff refused to accept of addi- tional bail, unless they would justify. On the same day notice of second bail was given to the plaintiff, and an offer was made by the defendant to deposit a sum of money to the full amount, as security. Two persons were then put in as bail, with a notice of justifica- tion on the 19th of July, but they now jus- tified in open court. The defendant also made an affidavit of merits. A motion was now made in behalf of the plaintiff for an attachment against the sheriff, on the ground that where a trial is lost, an at- tachment will be issued to stand as security. ( 1 Sellon, 214; 4 Term Rep., 352.) Mr. Eacker for the plaintiff. Mr. Walton for the defendant. Per Curiam. There was no time at the last circuit to try a junior cause, so that, in truth, no trial has been lost. The defendant having sworn to merits, and as he tendered, on the llth of July, the full amount in money as security, which was refused, and as bail has since justified, we think the motion ought to be denied, but on payment by the sheriff of the costs of the rule to show cause, and of this motion. Rule refused. *ST AFFORD 0.COLE AND SPAULD- [*413 ING. Service By Mail Affidavit of Evidence If the defendant's attorney swears that he sent a plea to the plaintiff's attorney by mail, the court will presume it was received, unless the contrary be made to appear. TUDGMENT in this case had been entered J by default, for want of a plea, though a plea was sent by the mail, and the attorney for the defendant swore that he believed it was received by the plaintiff's attorney. Mr. Riker, for the defendant, now moved to set aside the judgment for irregularity. Mr. Wortman, contra. Per Curiam. The defendant's attorney swears that he sent the plea by mail, and that he believes it was received; and as this is not denied by the plaintiff's attorney, though he had a copy of the affidavit some days before making his counter-affidavit, we will presume that the plea was received. The judgment 1. The above is the only note of the case that could be found, and the reasons of the court are not fully stated. The principle, however, has been more than once recognized by this court. ( Wardell v. Eden, 1 John., 531, note, Littlefteld v. Storey, 3 John. ) Some difference appears to have existed in the English courts on the question. In Bauerman v. Radenius (7 Term Rep., 663), Mr. Erskine cites a case brought by a nominal plaintiff, for persons beneficially interested, for whom he was a trustee, in which the defendant produced a release from the plaintiff, and Lord Mansfield held it conclusive: and Lord Kenyon, in the ease then before the court, seems to consider himself as bound by the strict rules of law to admit the declarations and acts of the plaintiff on the record, to defeat the action, though the plaintiff appeared to be a mere trustee for third persons. And in the case of Craib et ux v. D'Aeth (7 Term Rep.,'670 ), the Court of 372 King's Bench admitted the doctrine to be so settled. But the Court of C. B. in the east! of Legh v. Legh ( 1 Bos. & Pull., 447 ), decided in conformity with the above opinion in Andrews v. Beecker, and certainly in a manner more agreeable to equity and common sense. Courts of law having recognized assign- ments of choscs in action, are, in justice, bound to protect the rights of the assignees, as much as a court of equity, though they may still require the action to be brought in the name of the assignor. They have, in numerous instances, of late years, taken notice of trusts, and it would be absurd to turn the party around to another court, upon a mere formal objection. (1 Term Rep., 621; 4 Term Rep., 340, 341.) The English courts have felt and expressed their indignation at the attempt of a mere nominal plaintiff in ejectment, to defeat the rights of persons beneficially interested. (Payne v. Rogers, Doug., 406 ; 1 Salk., 260.) JOHNSON'S CASES, 1. 1800 BOARDMAN AND HUNT V. FOWLER, MANUCAPTOR, ETC. 413 must be set aside, on payment of costs by the plaintiff's attorney himself. Rule granted. Cited in 10 Wend., 635 ; 11 How. Pr.. 484. BOARDMAN AND HUNT *>. FOWLER, Manucaptor, &c. 1. Sickness of. 2. Bail Excuse Surrender Deputization. The sickness of bail was admitted as a good ex- cuse for not surrendering; the principal within the eight days. Special bail may depute another to nake the surrender, ex necessitate. A MOTION was made in behalf of the defendant, to stay the proceedings on the recognizance of bail, and for leave to enter an exoneretur on the bail piece. It appeared that the defendant was arrested, in this suit, on the 17th of April; that he fell sick on the 21st of April, and continued ill for ten days; and the principal was surrendered on the 26th, by an agent of the defendant, he being unable to attend for that purpose. It was objected that the surrender was not made within eight days after the return of the capias against the bail, and that the surrender was made by an agent of the bail, who could not depute another to take the principal. 4 1 4*] *Per Curiam. The sickness of the de- fendant was a sufficient excuse for not making the surrender within the eight days. It appears by a certificate of the sheriff, that the princi- pal surrendered himself, and we are to pre- sume that it was done voluntarily, so there is no room for the objection as to an agent ; but if that were a question now to be decided, we are inclined to think that special bail may, ex necessitate, depute. Rule granted. Cited in-4 Johns., 310 ; 7 Johns., 153 ; 5 Cow., 26 ; 30 How. Pr., 20 ; 10 Abb., 380 ; 12 Abb., 84 ; 16 Wall., 371. KEMBLE . FINCH Ejectment Second Declaration Waiver. The service of a second declaration in ejectment, by the plaintiff's agent, though without his knowl- edge, is a waiver of the first. A DECLARATION in ejectment, in this cause, was served on the tenant in pos- session, who soon after quitted, and another tenant came into possession, when a person acting as the agent of the plaintiff served a second declaration on the new tenant. This was done without the knowledge of the plaint- iff's attorney, who proceeded under the first declaration, and took judgment against the casual ejector. A motion was now made to set aside the judgment, and all subsequent proceedings. JOHNSON'S CASES, 1. Per Curiam. By the service of a new declaration by the plaintiff's agent, though without the " knowledge of his attorney : the first declaration and service were waived. The plaintiff may, at any time, stay or waive his own proceedings, and his acts must bind him. Let the proceedings in the first cause be set aside and the lessor of the plaintiff pay the costs of this application. Rule granted. *LEFFERTS v. BYRON. [*415 Amendment of Declaration Service. Where a declaration has been served with oyer, and the declaration is afterwards amended, and a copy of the amended declaration served on the defendant, a new oyer need not be delivered. THE declaration with oyer in this cause, was served on the defendant's attorney. The declaration, being afterwards discovered to be incorrect, was amended, and served de no'co, without a new oyer. The defendant's attorney refused to receive the amended declaration, without a new oyer, and the plaintiff proceeded and entered a default. Mr. T. L. Ogden, for the defendant, now moved to set aside the default. Mr. Hopkins, contra. Per Curiam. There was no necessity for serving a new oyer with the amended declara- tion, the first being correct. The motion must be denied. Rule refused. COLVIN D. MORGAN. Privilege Member of Assembly. A member of the assembly is not entitled to his privilege after he has reached home, though within the fourteen days. Citation Rev. Laws of N. Y., Vol. I., p 133. THE defendant in this cause moved to be discharged from the arrest, on the ground that, being a member of the Assembly, he was arrested within fourteen days after leaving the Legislature, but he did not state whether he bad reached his home or not, at the time of the arrest. Per Curiam. If the defendant arrived at his tiome within the fourteen days, and before the arrest, the reason of his privilege, and, of ourse the privilege itself, ceased. (Rev. Laws of N. Y., vol. 1., p. 133.) As the defendant does not state where he was at the time he was arrested, the motion must be denied with costs. Rule refused. Cited in-2 Johns. Cas., 222. 373 416 SUPREME COURT, STATE OP NEW YORK. 1800 416*] *!N THE MATTER OF WILLIAMS, an Insolvent Debtor. Imprisoned Debtors Non-resident Creditors Notice. In proceedings under the "Act for the relief of debtors, with respect to the imprisonment of their persons," creditors residing out of the State, as it respects notice, are to .be considered as not to be found. A N application was made in behalf of the i\. insolvent, who was in prison, that he might be discharged under the "Act for the relief of debtors, with respect to the impris- onment of their persons." It was objected, 1. That notice had not been served on a particular creditor residing in the 374 State of Massachusetts, nor an affidavit made that he could not be found. 2. That the sum for which the prisoner was charged in execution was not mentioned in his petition. 3. That the inventory purports to be an in- ventory of his real and personal estate, when, in fact, no real estate was mentioned in it. Per Curiam. All the objection s are frivolous. A person residing out of the State, as to the service of a notice under the act, is to be con- sidered as not to be found. Rule granted. The Chief Justice was absent during the whole of this terra, on account of extreme sickness in his family. JOHNSON'S CASES, 1. [END OF JULY TERM.] CASES ADJUDGED IN THE Court for the Trial of Impeachments AND THE CORRECTION OF ERRORS,* FROM FKBRTJA-RY, 1798, TO , 18OO. 417*] *HERMAN LE EOT, WILLIAM BAYARD, AND GERRIT BOON, Appel- lants, v. LEWIS VEEDER, MICHAEL GALLIN- GER, HANS GALLINGER, LODOWICK SNYDER, JOHN SNYDER, NICHOLAS SHAFER, PETER RUPERT, JOHN HOWELL, MICHAEL RUSSEL, AMOS ANSLEY, GEORGE STAM, MATTHIAS LINK, JOHN SMITH, AND JOHN FIMS, Respondents. 1. Injunction Lost or Destroyed Title Deeds Sufficiency of Affidail. 2. Pleading Illegal Contract. 3. Demurrer Charging Champerty and Maintenance. 4. Bill of Discovery and Relief Demurrer Want of Equity Remedy at Law. 5. Cost* on Reversal Separate De- murrers. 6. Court of Equity Rules Govern- ing. Where a bill is filed by several complainants, praying- an injunction and seeking relief on account of title deeds which are lost, an affidavit of one of the complainants, that "he had been informed and verily believed, and hoped to prove, that the deeds in question did exist, and were lost or destroyed in the manner mentioned in the bill," is sufficient. Whether a plea that a contract relative to land to be patented is illegal, because it contravened the royal instruction (prior to the American Revolution) re- straining the patents for lands to a certain quantity to each patentee, is a valid plea, entered It seems that a demurrer to a bill, charging that the defendants claimed land by conveyances from persons out of possession and praying a discovery of that fact, because it might subject the defendant to the penalties of the act for buying pretended titles, would be bad, unless it appears that the answer would show that the defendant knew of the vendors being out of possession, and of a subsisting adverse possession. If a complainant be properly before the court for a discovery, and at the same time prays relief, a general demurrer to the bill for want of equity, or because the plaintiff has a fit and adequate remedy at law, is bad unless it is manifest on the face of the complainant's bill, that no discovery or proof can possibly make his case a proper subject of equitable jurisdiction. Where several defendants in chancery put in separate demurrers, on which separate decrees were given, this court on the reversal of those decrees on appeal, obliged each respective respond- ent to pay to the appellants his costs on the appeal for each respective decree so reversed. Citations Nelson, 78; 1 Vern., 180; 1 Vern., 247; 2 P. Wins., 541 ; 3 Atk., 132 ; 1 Vesey, 345 ; Free, in Chan., 536; 2 Brown's Chan., Rep., 280; Id. 309; 4 Id. 480; 1 Atk., 450; 2 Atk., 389; 1 Ves., 248; Munro v. Allaire. rpHE appellants (the complainants in the JL court below) exhibited their bill in chancery against the respondents and sixteen other de- fendants, therein named, in which they set *forth, that governor Sir Henry Moore, [*418 on the 2d February, 1768, purchased from the native Indians a tract of land, containing 25,000 acres, then in the County of Albany, but now in the County of Montgomery, for the use of Peter Lewis, Moses Ibbit, Peter Lewis, Jun., Samuel Runyons, Peter Millar, Lucas Veeder, Peter Frederick, Stephen Hipp, Michael Russel, Peter Fiax, Leonard Crutzenbergen, Michael Gal- linger, Andries Snyder, Nicholas Shafer, George Hipp, Johannes West, Adam Rupert, Francis Beard, George Keep, George Stam, Lawrence Eaman, Matthias Link, Thomas * By the 32d article of the constitution of the State of New York, this court is to consist of the "Presi- dent of the senate for the time being, the senators, Chancellor, and judges of the Supreme Court, or the major part of them; except that when an impeachment shall be prosecuted against the Chancellor, or either of the judges of the Supreme Court, the person so impeached shall be suspended from exer- cising his office until his acquittal: and in like manner, when an appeal from a decree in equity shall be heard, the Chancellor shall inform the court of the reasons of his decree, but shall not have a voice in the final sentence; and if the cause to be determined shall be brought up by writ of error, on a question of law, on a judgment of the Supreme Court, the judges of that court shall assign the reasons of such judgment, but shall have no voice for its affirmance or reversal." (A court for the trial of an impeachment has never yet been held.) JOHNSON'S CASES, 1. 37 418 COURT OF ERRORS, STATE OF NEW YORK. 1800 Morgan, Joseph Mordaunt, and John Timms, who, thereupon, petitioned for a patent, which issued to them accordingly, on the 28th February, thereafter; that in consideration of money, and other valuable considerations (not known to the complainants) paid, delivered, or performed by the late Sir William Johnson, of the said county, to the said petitioners, and in consideration that he promised to pay all the office and other fees on issuing the patent, it was agreed between Sir William Johnson and the petitioners that when the patent should be made to them, they would receive the same in trust for him, and that when the title should become vested in them by the pat- ent, they would convey to him; that Sir William Johnson accordingly paid the fees, amounting to upwards of 60W. ; "that shortly after the issuing of the letters patent, by which the title 419*] *to the said tract of land became vested in the grantees therein named, and during the course of the year in which the said letters patent issued, the grantees in the said letters patent named, being then in possession thereof, and seized of the same, by virtue of the grant made to them by the letters patent aforesaid, they the said grantees in the said letters patent named, in pursuance of their said agreement with the said Sir William Johnson, did, in consideration of the sums of money, or other valuable consideration, paid, delivered, or performed by the said Sir William Johnson to the said grantees, in the said letters patent named respectively, and in consideration of the said Sir William Johnson's having paid, or agreed to pay, all the office and other fees which became payable, and did accrue on issuing the said letters patent as aforesaid, in execution and discharge of their said agreement with the said Sir William Johnson before mentioned, by good and sufficient deeds and conveyances, in the law, for that purpose, respectively grant, release and convey unto the said Sir "VV illiam Johnson, in fee-simple, the whole of the said 25,000 acres of land, in the said letters patent mentioned and described; by virtue of which conveyances, and imme- diately, or in some short time after the execu- tion thereof, the said Sir William Johnson took possession of the whole of the said 25,000 acres of land, and caused the same to be ( surveyed, and trees standing on the boundary lines thereof to be marked, showing and designating the bounds of the land:" That Sir William Johnson, on the llth June, 1772, for 3751., conveyed a parcel containing 10, 000 acres, to Lord A. Gordon, the boundary line of which appears also to have been according to a sur- vey made for the purpose; that shortly after he conveyed another parcel containing 2,000 acres to John Kelly; that by his will of the 27th January, 1774, he devised the remaining 13,000 acres to his two brothers and four sisters, and directed his executors to sell the same, and the moneys to be equally divided between the devisees; and that shortly there- after he died; that Lord A. Gordon, on the 42O*] 25th * May, 1787, conveyed the tract of 10,000 acres to R. and I. Watts, who, on the 5th December, 1792, conveyed it to the com- plainants, Le Roy and Bayard, for 5.000J. ; that R. and I. Watts, as attorneys to the executors of Sir William Johnson, on the 13th 376 November, 1792, conveyed the tract of 13,000 acres to the same complainants; that convey- ances were afterwards executed, and acts done, which were set forth in the bill, to vest in the complainant Boon, his third of the lands, and for confirming the title in the three com- plainants ; "that some time after the death of Sir William Johnson, and in the early part of the late war between the United States and Great Britain, Sir John Johnson, the son, and one of the executors of the last will and testa- ment of Sir William Johnson, having in his custody sundry title deeds and papers, which belonged to the estate of the late Sir William Johnson, among which were the deeds or in- struments, and evidences of conveyance, or conveyances, from the several patentees or grantees, in the aforesaid letters patent named, to the said Sir William Johnson, of the said 25,000 acres of land in the letters patent afore- said mentioned, for the purpose of guarding against the loss of those papers, or for some other purpose, buried the whole of the said papers in the earth, where they remained for some years, exposed to moisture, and other injuries, after which the said papers, or such of them as remained or could be found, were taken up, but were so much injured and de- faced as to be altogether illegible, by which means, all the deeds, or written evidences, of the conveyances of the said 25,000 acres of land, from the said patentees or grantees, in the said letters patent named, to the said Sir William Johnson, were either lost or destroyed, or by some other accident are now wholly out of the power of the complainants to produce:" That nine of the defendants named in the bill, endeavoring to avail themselves of the destruc- tion or loss of the conveyances from the patentees to Sir William Johnson, and claiming either as original patentees themselves, or by purchase, devise or descent from some of the original patentees, *and confederating [*421 with the other twenty-one defendants, had commenced a suit in ejectment in the Supreme Court, against Boon, to recover part of the lands, being the only one of the appellants who resided on the land; that the defendants pre- tended that they claimed title in consequence of sales to them by the original patentees, or by persons deriving title under the original patentees, and that the persons at the time of the sale were seized and actually possessed of the land, whereas the persons, if any, were not, at the time of the sale, in any manner, in possession of the land. On these allegations, the bill prayed as usual that the defendants might answer, and discover and set forth their title, and whether the persons under whom they claim title were ever in possession of the land; that the lessors of the plaintiff in the suit in ejectment might be enjoined from proceed- ing therein, that the complainants might be quieted in their possession, and for further relief. Boon was the only one of the appellants whose affidavit was annexed to the bill, and it substantially verified every allegation in the bill: that part of it which relates to the con- veyances from the patentees to Sir William Johnson, and the destruction of them, is as follows: " And the said deponent hath also been in- JOHNSON'S CAPES, 1. 1800 HERMAN LEROY, ETC., v. WILLIAM BAYARD, ETC. 421 formed, and doth verily believe and hopeth to be able to prove, that shortly after the making of the said grant to the said petitioners, they did respectively convey and release all their right, title and interest respectively in the tract of land thereby granted to the said Sir William Johnson, in the said bill of complaint named; that the said Sir William Johnson did actually pay the office and the other fees attending the obtaining the said letters patent for the said tract of land, amounting to 600 and upwards; that he, sometime in the year 1769, did take possession of the said tract of land by causing the same to be surveyed, and trees standing on the boundary lines thereof to be marked, show- ing and designating the bounds of the said lands; and he hath also been informed and doth verily believe that the deeds of convey- ance and release above stated to have been 422*] made and executed by *the patentees aforesaid, to the said Sir William Johnson, were destroyed in the manner in the said bill of complaint mentioned." There was no affi- davit by the other two complainants. To this bill some of the defendants answered; and fourteen of them (the respondents in this appeal) separately filed general demurrers, and set forth the following causes of demurrer: 1. That the complainants ought, according to the course of proceeding and the rules of the court, to have made affidavit, and annexed the same to their bill, that they had not in their power the deed or deeds whereof they seek a discovery in this court. 2. That the agreement suggested in the bill to have been made between the said Peter Lewis and his associates, in the said bill named, and the said Sir William Johnson, to obtain a grant of the said lands to the use of the said Sir William Johnson was illegal, and, therefore, is not entitled to the aid of the court. 3. That the complainants charge by their bill that the defendants hold under a convey- ance executed by some person or persons hav- ing a pretended title to the lands, and pray a discovery of such title, which discovery, if the suggestions in the bill are true, would subject the defendants to a grievous penalty. 4. For that the scope of the said bill is to dis- cover the defendants' title to the said lands and to quiet the complainants in the possession thereof before the complainants have estab- lished their title by a trial at law. 5. That it appears from the complainants' own showing in their said bill, that they claim, or pretend title to the lands in the bill men- tioned, under sundry conveyances in the bill set forth, which is matter merely triable at law, and touching which the complainants may easily ascertain their title on the trial of the actions of ejectment brought by the defend- ants at law. 6. That the bill contained no equity. 423*] *The Chancellor allowed all the sev- eral demurrers and ordered the bill of the complainants as to each of the defendants to be dismissed with costs. From this decree the complainants brought their appeal to this court. Messrs. Hamilton and Biggs for the appel- lants. JOHNSON'S CASES, 1. Messrs. E. Livingston and Van Vechten for the respondents. BENSON, J. In a case otherwise properly cognizable in a court of law, if the plaintiff for want of a writing, the evidence of his right, is obliged to sue in equity, it is a rule there that he must verify on oath the allegation that the writing is lost, or in the possession of the defendants. This rule is founded on the same reason as the rule in courts of law, in cases of pleas to the jurisdiction, foreign pleas, and claims of cognizance, and is intended only to prevent a change or transfer of jurisdiction, without due cause shown, arising from facts proved on oath, and does not diminish or deprive the defendant of any real advantage of defence; so that proof, not absolutely positive and conclusive, but less precise and full, will be sufficient. In order to confine the rule to its mere 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 (Nels.,78; 1 Vern., 180; Id., 247; 2 P. Wins. 541; 3 Atk., 132; 1 Ves., 345), whatsoever they may be, it is to be supposed that 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 pos- session of the defendant (Free, in Chan., 536), in these cases the allegation of the loss of the papers, or that they are in the possession of the defendant, need not be on oath. Until some decisions in England within ten years past (2 Brown's Chan. Rep., 280; Id., 319; 4 Brown's Chan. Rep., 480), it has 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 part, is void in toto, and cannot be separated (1 Atk., 450; 2 Atk., 389). " A general demurrer to the whole bill, if there is any part of the bill to which the defendant ought to put in an answer, the demurrer being entire, must be overruled " (1 Ves. , 248) ; a a demurrer, if defective in part is bad for the whole, *for it cannot be split. [*424 Although the decisions of the English courts are deservedly of great authority, yet the rea- sons in the cases alluded to, the supposed hard- ship on a defendant, if he cannot avoid the expense of taking a copy of a long bill, if there chances to be a right to a discovery; thereby making the only question to be, whether the plaintiff should be put to the expense of a new bill, or the defendant of a new demurrer, are not convincing; for if the defendant, instead of a general demurrer to the whole bill, will demur particularly to each separate or distinct 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 expense of so much of the copy of the bill to which the demurrer was allowed, so that there will not, in that respect, be any hardship on him. It may be also stated that other means within the powers of the court to correct the mischief, if it prevails, of filing bills of an undue length, containing matters which the defendant ^mght not to answer, may easily be 377 424 COURT OF ERRORS. STATE OF NEW YORK. 1800 devised, preferable to merely turning the such as a conscience rightly informed cannot plaintiff round, and subjecting him to the I approve; but this principle is not applicable to delay and expense of a new bill. My conclu- j the present case. The supposed illegality of sion, therefore, is, that there does not appear I the agreement between the original patentees sufficient reason to change an established and j and Sir William Johnson, consists in its being approved practice, and consequently, if there | in contravention of the instruction from the **-' *'" ' --*. -i- - king to the governor, restraining the patents 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, it must be overruled in the whole. This leads to an examination of the several causes of demurrer. First : The defendants object to the proof as arising from the affidavit oif the complainant Boon. 1. That there is only the oath of one whereas there ought to be an oath by each of the complainants. 2. That the oath ought not only to state the destruction of the sup- posed writings, but also that the deponents for lands to a quantity not exceeding 1,000 acres to each patentee. The futility of this regulation was soon discerned, and the instruc- tion was for near 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 con ceding that the legality of an agreement 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 have them not in their own possession ; and, 3. i Indian purchase; because, immediately on the That the deponen* doth not swear from his j purchase, the king, in whose name these pur- own knowledge, but from the information of chases were always made, became a trustee for oihers. Here I state that the proof of the the persons to whose use they were made; and 425*] allegation* of the loss of the writing is restricted to the oath of the party, in exclu- sion of the oath of a stranger, and, therefore, the trust, possibly on artificially legal princi- ples, might have been limited to a quantity not exceeding the rate of 1,000 acres to each per- if the circumstances of the case are such as | son. The several ceslni qut Iruxte, however, had that it is to be presumed the party cannot I an equitable interest in their respective shares, know the facts from his own knowledge, he which they could legally assign, and agree to must then, from necessity, be admitted to tes- vest the title at law in the assignees on the is- tify from credible information, or, in other suing of the patent; and as it does not appear words, from the hearsay of others. When- when the agreement, in the present instance, ever the law admits hearsay testimony, the fact is thereby as competently proved and established, as if the person giving testimony was made, whether before or after the Indian purchase, the illegality of it cannot come under consideration on the defendant's demurrer. It was to testify from his own knowledge. And I was a matter of which they could avail whenever a "person swears from the credible I themselves by plea only, with the requisite information of others, it not only implies that averments supplying the uncertainty of the he hath inquired to an extent, and in a manner bill, as to the time when the agreement was to produce a rational belief that the fact is as | made. he testifies it to be, but it also excludes the Third. The answer which has been given supposition that he hath any reason even to to the third cause of demurrer is that it was not requisite for the defendants, in answering the bill, to declare either that *there suspect it to be otherwise. A distinction is to be taken between the cases where the writing is so lost only, as that it cannot, for the pres- j was an adverse possession, or if there was, that ent, be found, and is supposed still to exist, \ the defendants knew it; but that it would have and the cases where the writing is wholly de- i been sufficient if they had simply admitted stroyed, and therefore supposed not to exist. ! that their vendors were not, at the time of the Though in some of the former cases, it maybe j purchase by them, the tenants in possession; proper, in order to guard against evasion, to ' because, whether the possession was vacant, or require the party to swear also, that he hath j whether it was adversely held by others, and not himself the writing in his possession, yet ! if the latter, whether the defendants knew it, in the latter cases, it would be altogether a | whichever might have been the fact, was useless accumulation of proof; for it would be to require proof of another proposition of fact, which follows as a necessary logical con- 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 sequence from one already proved. Assum- ! to accuse himself is so estimable that we can ing it, therefore, and which I think cannot be I not be too cautious in admitting distinctions or questioned, that the present case is one of j qualifications of it; and, therefore (especially those in which proof, from the information or as the discovery sought for in this instance is hearsay of others, is to be received, then the of a fact altogether useless in the complainant's fact of the destruction of the supposed con- case) I should have supposed it more safe, if a veyances from the original patentees to Sir | particular demurrer had been put in to that William Johnson, is duly and competently j part of the bill, to have allowed it, and have proved; and, consequently, the affidavit of the i ordered the allegation and interrogatory, which complainant Boon alone is sufficient, so that i the demurrer supposes to be exceptionable, to the first cause of demurrer fails. be struck out of the bill. Second. It must be admitted that there can- not be a more sound or salutary principle than 42O*1 tne one on which *the second cause of I shall consider the three last causes of de- murrer together; for I am inclined to think that they might all have been shown under the demurrer proceeds, that a court of equity should j last general cause of demurrer; they being es- always withhold its aid and countenance from I sentially the same, amounting to a denial that a suitor whose conduct appears in any part ' the court ought to grant a relief, supposing all 878 JOHNSON'S CASES, 1. 1800 WILLIAM LAIGHT, ETC., v. JOHN MORGAN, ETC. 427 the allegations in the bill to be confessed, which is only saying, in other words, that there is a want of equity. It is ordinarily premature wholly to dismiss a bill on a demurrer for this general cause, 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 jurisdiction. Such was the late case of Munro etal. v. Allaire (Feb- ruary, 1796), decided in this court, where the complainant came to have a purchase of lands perfected and confirmed to him, the supposed ale being made by trustees under a will ; and he being one of the trustees did not allege him- self also a cestui que trust, or one of the legatees to whom the money arising from the sale was to be paid, and that he, although a trustee, 428*] 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 re- marked that a defendant doth not forego, or waive a single advantage as to the merits, or the point whether the complainant has equity, by not demurring. He may equally insist on the same matters, by way of answer, which he might have done by demurrer; and if he should even admit 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 question whether the complainants were en- titled to any, or what relief, until all the proofs arising from the answers of the defendants, or otherwise, had come in; and consequently, that the several decrees allowing the respective de- murrers of the respondents, and dismissing the appellants' bill, ought to be reversed. The re- spondents have not only put in separate de- murrers, but they have also proceeded separate- ly to decrees. How far, or by what means, a court of chancery ought to restrain and regu- late the right of defendants to sever in their defense, so as to prevent them from availing themselves of it, solely to vex the complainant, are matters on which I forbear to give any opinion here, 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 complainant. This may, in some measure, prevent the abuse alluded to. My opinion, therefore, is that each respective respondent, on the present appeal, be decreed to pay to the appellants for their costs on the appeal, a sum to the same amount which would have been decreed to be paid by them all jointly, if they had joined in demurrer in the court below. The majority of the court, concurring in this opinion, it was thereupon ordered, adjudged 429*] and decreed *that the several decrees of the Court of Chancery, allowing the separ- ate 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 directing the said bill, as it respected each of the respondents, to be dis- missed, be reversed; and further, that the re- spondents severally pay to the appellants the sum of thirty dollars, for their costs on this appeal, in respect to each respective decree so JOHNSON'S CASES, 1. reversed, and that the cause be remitted to the Court of Chancery, and that such further pro- ceedings there be had thereupon, as well for the execution of this judgment, order and de- cree, as otherwise, as shall be agreeable to equity and justice. Judgment of reversal. ' Followed Post 432. Cited in 3 Johns. Ch., 471 ; 3 Paige, 251 ; 5 Paige, 149 ; 10 Barb., 137. See 1 Caines Cas., i ; 2 Caines Cas., 175. WILLIAM LAIGHT, JOHN JACOB ASTOR, AND PETER SMITH, Appellant*, v. JOHN MORGAN (who was Impleaded with JONATHAN DANFORTII. and Thirty-three others), Respondent. 1. Bill in Equity Perpetuate Testimony Estab- lish Title Quiet Possession Affidavit Nec- essary. 2. Id. Discovery Title Deeds Lost or Defaced Demurrer. 3. Id. Discovery and Relief Good in Part Practice. Where a bill seeks to perpetuate the testimony of aged and infirm witnesses ; or where a bill seeks to have a title established, and the possession quieted, an affidavit of the facts on which such application is founded, is necessary. Where a bill seeks a dis- covery as to title deeds lost or defaced, which does not require an affidavit ; and also to perpetuate the testimony of witnesses, a general demurrer to the whole bill, for want of an affidavit, is bad. Where a bill is filed for discovery, and also for relief, the bill being good for the one object, without affidavit, though not for the other, it will be retained as for the sound part, and the defendant ought to answer to the part which is good, and demur, if he think proper, to the other. Citations 1 Johns. Cas., 417 ; 1 P. Wms., 117 ; 3 Id., 77 ; Id., 150 ; 2 Atk., 157 ; 1 Vesey, 248 ; 1 Atk., 450. THE appellants filed their bill of complaint in the Court of Chancery against the re- spondent and the other parties, stating, among other things, that on the 25th of March, 1768, George III., by letters patent, granted unto Michael Byrn, and seventeen others, in fee, a tract of land in the then County of Albany, containing 18,000 acres; that on the 8th of May, 1770, the same king granted in fee unto the late Sir William Johnson, deceased, and twenty- five other persons, another tract of land in the same county, containing 25,000 acres; that all the patent fees and *other expenses at- [*43O tending the issuing of the letters patent for the said tracts, were paid solely by the said Sir William Johnson; that the names of the other patentees were inserted (herein for his benefit, and with the express intention on their parts of releasing to him their several proportions of the said several tracts; that the said patentees did accordingly, in the year 1770, convey, by sufficient deeds unto the'said Sir William John- son, in fee, their interest in the several tracts aforesaid; that Sir William Johnson caused the same to be surveyed as his own property, and at his own expense. The appellants then deduced in their bill a 1. This report is taken from a manuscript of Mr. Justice Benson. 379 430 COURT OF ERRORS, STATE OP NEW YORK. 1800 regular title to themselves to the said two tracts of land, from the executors of Sir Wil- liam Johnson, who had power to sell the same. The bill then stated that during the American war, the deeds executed by the said patentees, together with other papers of Sir William Johnson, were for greater safety put into an iron chest and buried in the earth, whereby the said deeds were so mouldered and spoileu, as to have become entirely illegible, and inca- pable of proof in the usual way; that after it became known that the deeds were thus in- jured, several persons who originally settled on part of the said lands under Sir William Johnson, and particularly the defendants, availing themselves thereof, now hold the same against the appellants, either without any title at all, or by title derived from the said paten- tees, after they had released to Sir William Johnson; that they had commenced two ac- tions of ejectment in the Supreme Court against two of the defendants to their bill, to recover such part of the premises as is in their possession, which actions were at issue; that many of the witnesses who could prove these matters lived out of the State, and were old, infirm, and not likely to live long; that other material witnesses who lived within the State were likewise very aged, infirm, unable to travel, and not likely to live long. The appellants then prayed that John Mor- gan, and the other defendants to -their bill, 431*J might be decreed to deliver *to them the quiet possession of such part of the said lands as were occupied by them, and that they might have their witnesses examined, touching the execution of the deeds aforesaid, and touch- ing their loss, spoiling or destruction, in order to perpetuate their testimony, and that they might be otherwise relieved, as the nature of their case might require. To this bill John Morgan and each of the other defendants demurred separately, and each assigned the same causes of demurrer, which were as follows: 1. Because there is no affidavit that the complainants had not in their power the deeds whereof they seek a discovery. 2. Because no affidavit is annexed to the bill of the age of the witnesses whose testi- mony is wanted. 3. Because the bill prays to perpetuate testi- mony, and for general relief, both of which cannot be joined in one bill. 4. Because it appears that the parties exe- cuting the releases to Sir William Johnson were at the time out of possession, and that the same are therefore void. 5. Because the bill charges the defendants with holding under persons having a pretended title, which discovery would subject them to a grievous penalty. 6. Because the scope of the bill is to dis- cover the defendant's title, and to quiet the complainants in their possession, before the latter have established their title by a trial at law. 7. Because the complainants claim title under sundry conveyances mentioned in their bill, which is a matter merely triable at law, and which may be established by the actions of ejectment which they have brought. The chancellor allowed the demurrer, and 380 ordered, adjudged and decreed that the said bill, as to the respondent John Morgan should be dismissed, with costs to be taxed: Similar decrees were also separately made as to each of the other thirty-four defendants; from this decree the complainants appealed to this court. *Mr. Burr, for the appellants, cited [*432 Mitford's pleadings, 52, 53, 113; Mosely, 192; Free, in Chan., 536; 3 P. Wms., 77"; 1 P. Wms., 117; 4 Bro. C. C., 299; 2 Eq. Cas. Ab., 13, 259, 280; 1 Vesey, 248, 249; 1 Vern., 49; 3 Atk.,130; 2 Bro. C.'C., 281, 319; 3 P. Wms., 150; 2 Atk., 157. Mr. Spencer, for the respondents, cited 1 Vern., 180, 247; 1 Chan. Ca., 11; 2 P. Wms., 541; 3 Atk., 77, 117; 2 Vent., 366; 3 Atk., 439; Hind., 24, 36; 1 Vern., 308, 441; 1 Atk., 571; 2 Atk., 391, 484; Prec. in Chan., 531; 4 Bro. C. C., 480; Hind., 149. KENt, J. The bill of complaint in this cause appears to have had three objects, viz. : 1. To obtain a discovery of facts from the defendants. 2. To perpetuate testimony. 3. To obtain specific relief. Upon the demurrer to the whole bill, there were seven causes of demurrer assigned. The three last causes were assigned in the same words, in the similar case of Le Roy and others v. Veeder and other* (Ante, p. 417), de- cided at the last session of this court; and by that decision, they are to be deemed as having been overruled. The fourth cause of demurrer was abandoned by the counsel for the respond- ents, upon the argument, as untenable. If the third cause be not equally so, it is, perhaps, not material in the present case, since, as I shall presently show, the decision of this cause finally depends upon the 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 considera- tion of these two questions, as arising out of the two first causes of demurrer. 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 adffidavit, maintainable? 1st. The bill alleges the loss of papers ma- terial to the complainants' title, and seeks a discovery concerning *them from the [*433 defendants. This is a matter within the ordin- ary 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 bene esse, of witnesses who are alleged to be aged or infirm, or resi- dent abroad; and for this purpose I conceive that an affidavit was requisite, by the practice of the court (1 P. Wms., 117; 3 P. Wms., 77), stating generally the age, infirmity, and place of residence of the witnesses; and as no affi- davit 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 complainants to two tracts of land established, and quiet possession given them. This is a matter properly of legal jurisdiction, and relievable by the courts of common law; and for this reason, I deem an JOHNSON 'B CASES. 1. 1800 Louis LE GTJEN v. ISAAC GOTJVERNEUR AND PETER KEMBLE. 433 affidavit to the truth of the material facts stated in the bill, to have been requisite. It appears to me to be an established, as well as a reasonable and fit rule, that whenever a bill seeks to transfer to chancery a question properly cognizable by the courts of law, the facte rendering such a change of jurisdiction proper, must be verified by oath, so that a suitor shall not, upon mere suggestion or pre- text, break in upon, and disturb the settled boundaries of the courts of justice. As, therefore, the bill, in respect to one ob- ject, the discovery, did not require an affidavit, and in respect to the other two objects, to wit, the examination of witnesses, and the relief, it did require one, it leads me to consider, 2. The question, whether a demurrer to the whole bill, for the want of such affidavit, be good. It is an established and convenient rule of pleading in chancery, that the defendant may meet a complainant's bill by several modes of defense. He may demur to one part, answer to another, plead to a third, and disclaim to a fourth part of a bill. If, therefore, a bill seeks a discovery of a matter which is proper, and likewise seeks a discovery of other matter which is not proper, as for instance, matter 434*] *which would charge the defendant with a crime, the defendant must answer to the proper, and may demur to the improper question put to him, or he may answer to the proper questions, taking no notice of the resi- due. So if a bill, as in the present case, seeks for discovery, and also for relief, consequent upon such discovery, the bill being good for the one object, without affidavit, and not for the other, the defendant ought to meet the sound part of the bill by answer, and be left to his own option whether he will demur or not to the other part. (3 P. Wms., 150; 2 Atk., 157.) I do not find any authoritative rule declar- ing, that if a bill be bad in part only, and good in other parts, the whole bill thereby becomes viti- ated, and will be dismissed on a general demur- rer. The settled rule is most assuredly otherwise, and a bill combining discovery and relief, with- out affidavit, though liable to demurrer as to the relief sought, shall, nevertheless, be retained and supported, for the purpose of discovery. <1 Vesey, 243; 1 Atk., 450.) A different rule would be very inconvenient, and unnecessarily grievous. To support a demurrer to a whole bill, when part of it, had such part been separ- ate and distinct, whould 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 defendant into court, who, when he arrives, will be in no better situation than he was be- fore, since the same answer which might have been sufficient, and the same consequences which would have been produced at first, must follow on the answer to the second bill. I am accordingly of opinion, that the de- murrer, which instead of being confined to the exceptionable parts of the bill, went to the whole of it, ought to have been overruled, and, consequently, that the decree of the court of chancery allowing the demurrer of the re- JOHNSON'S CASES, 1. spondents, and dismissing the bill of the appel- lants, must be reversed. *This being the unanimous opinion [*435 of the court, it was thereupon ordered and ad- judged, that the decree of the Court of Chan- ceiy be reversed. And it was further ordered, that the respondent pay to the appellants their costs in prosecuting their appeal, to be taxed, &c. Judgment of reversal l Cited in 3 Johns. Ch., 471; 4 Johns. Ch., 290, 297; 5 Johns. Ch., 186; 6 Johns. Ch., 346; 5 Paige, 149; 9 Paige, 584; 10 Barb., 137; 9 Pet., 658; 1 Bald., 409, 415. *LOUIS LE GUEN, Appellant, [*436 ISAAC GOUVERNEUR AND PETER KEM- BLE, Respondents. 1. Judgmenl Final as to what Matters. 2. Ex- ceptions to the Rule Counter demands Eject- ment Laches Neglect. 3. Applicability to Other Courts. 4. Illustration Defences. 5. Jurisdiction Question of Fraud. 6. Fraud Knowledge of Failure to Plead No Re- lief. 7. Sill of Review. 8. Appeals from Court of Chancery. 9. Id. House of Lords Power and Practice. 10. Chancellor Dis- cretionary Pmcer Questions of Fact. 11. Re- versal on Appeal Costs Damages. Where a party to a suit at law has knowledge of a fraud or other matter of defence, in time to avail himself of it at the trial at law, and he neglects to do so, he cannot afterwards, obtain relief in a court of equity against a judgment at law, on the ground of such fraud or matter of defence, that he might (1) Mr. Chief Justice Lansing, though he concurred in the above judgment of the court, on the ground that, the defendants being trustees, the Court of Chancery had proper jurisdiction in the cause, and so no affidavit was necessary; yet he was of opinion, that a bill for discovery and relief, without an affidavit, was a nullity, and that a general de- murrer to the whole bill would be good. Though the rule in England was formerly as above decided by the court, yet a different rule seems to have been laid down by Lord Thurlow, in 1798, after much consideration, in the case of Price v. James (2 Bro. C. C., 318), and which has been since recognized and adhered to by their courts of equity. In the case of Rootham and others v. Dawson (3 Anst., 859), a bill was filed for the discovery of the I contents of a lost bond, and prayed for payment of what was due upon it, and that a new bond might be executed. The defendant demurred, for want of an affidavit ; and the demurrer was allowed. In Loker v. Rolle (3 Vesey, Jun., 7), it was decided, that where the complainant is entitled to a discovery, but goes on and prays relief to which he is not en- titled, or which he might have at law, it is good ground of demurrer, and the defendant is not bound to answer ; and for that cause a demurrer was al- lowed. (See also 3 Ves., Jun., 343). In the case of Hodgkin v. Longden (8 Vezey, 2), though it was admitted that the rule was formerly otherwise, Lord Eldon observed, that Lord Thurlow had decided, that a general demurrer will hold, though the plaintiff is entitled to discovery, if not ' entitled to relief, on the ground, that the discovery being asked for the purpose of entitling the plaint- iff to the relief, if the plaintiff was not entitled to the relief, he should not have the discovery, which was asked for the purpose of obtaining that relief. ; And this, though contrary to the old rule, was ' recognized by Lord Eldon, who said, however, that it ; did not preclude the defendant from demurring as to the relief, and answering as to the discovery. (See also 2 Vesey, Jun., 459. 514. 6 Vesey, Jun., 773. i 2 Bro. C. C., 280. 319. 4 Bro. C. C., 480). I . NOTE. See classified table of citations at the end of above important case (Le Guen v. Gouverneur) showing its authority upon each subject considered. 381 436 COURT OF ERRQRS, STATE OF NEW YORK. 1800 have set up at the trial, but is forever concluded by the judgment. On an appeal from an interlocutory order of the Court of Chancery, directing an issue to be tried at law, this court will hear and decide upon the whole merits of the cause. The chancel- lor, though he has power to award an issue to ascer- tain the truth of facts which appear doubtful to his mind, may, nevertheless, if he thinks proper, de- cide for himself on the facts, according to nis dis- cretion. Where a judgment, order, or decree of a court be- low is reversed, on an appeal to this court, the ap- pellant is entitled only to his costs in the court be- low, up to the time or the order or judgment of that court, and cannot recover costs or damages on the appeal. Citations Prec. in Cha., 221 ; 3 Atk., 224 ; 1 Vern., 176; 2 H. Black., 414; 7 Terra R., 289; 2 Cas. in Cha., 95 ; Cha. Rep., 243 : 2 Burr., 1009 ; 1 Atk., 298 ; 2 Vern., 146, 378 ; Prec. in Cha., 233 ; 3 Bl. Com., 431 ; 2 P. Wm., 156, 220 ; 1 Burr., 396, 480, 482 ; 2 Ves., Jun., 295 ; Park., 303 ; 1 Burr., 396 ; 1 Eq. Cas. Ab., 176 ; 1 Vez., 434 ; 2 Vez., 576; 3 Atk., 35; 2 Atk., 178; 1 Bro. P. C., 57; 2 Bro.. 405, 415; 3 Bro., 180, 218; 4 Bro., 582; 5 Bro., 387, 454, 478 ; 6 Bro., 468 ; 7 Bro., 1, 208 ; Laws of N. Y., vol. 1, Nov. 23, 4783 ; 2 Ves., 42, 554 ; 2 Atk., 450, 295 ; 3 Atk., 516 ; 2 Ves., 56 ; 2 Burr., 1009 ; 7 Term R., 269 ; 2 Black., 414, 415 ; 3 Bl. Com., 454 ; 1 Eq. Cas. Abr., 81, pi. 4, 299 ; 2 Cas. Abr., 176 ; 2 Atk., 178 ; 3 Atk., 35 ; 1 Ves., 434 ; 3 P. Wms., 371 ; 3 Atk., ,35 ; 3 Atk., 223 ; 1 Id., 293 ; Prec. in Ch., 221 ; 3 P. Wms., 426; 2 Wash. R., 258, 270, 272, 275 ; Yelo., 202 ; 2 Mod., 100 ; 12 Mod., 515 ; Park., 303 ; Milf ord, 125 ; 2 Forb., 155 ; 2 Atk., 395 ; 2 Vez., 256 ; Barnard Ch. Rep., 100 ; 1 P. Wms. 673 ; 1 Wood., 232, 240, 241 ; 1 Bro. P. C., 58 ; 2 Bro. P. C., 408 ; 3 Bro. P. C., 183, 186 ; 4 Bro. P. C., 575, 585 ; 5 Bro. P. C., 454, 487 ; Bro. P. C., 469 ; 7 Bro. P. C., 222, 423 ; Colics Cases, 49 : 2 Vesey, Jun., 528, 529 ; 1 Strange, 617 ; 1 Ansthu- ther, 180, 183 ; 1 Salk., 252 ; 1 Bro. P. C., 578 ; 2 Bro. P. C.. 165. ON the 13th of April, 1795, the respondents, as factors of the appellant, sold to Isaac Lopez, M. Lopez, Jun., and Abraham Rivera, merchants, under the firm of Gomez, Lopez and Rivera, about 600 bales of cotton, at 37 cents per pound, and 12,000 weight of indigo, of the Isle of France, at two dollars per pound, amounting to $122,415.36; for which the pur- chasers gave their promissory notes, payable in one year, with interest after 60 days. A written contract, by direction of the appellant, was entered into between the respondents and the purchasers, and among other conditions of the contract, it was stipulated, that the pro- ceeds of the articles in France, or elsewhere, should be first applied towards the payment of the purchase money; and further, that the re- spondents "might have it in their option to re- ceive the whole or a part of the amount of said notes, at Havre de Grace, or at any other port, the ship carrying the property for the pur- chasers, might discharge at in Europe." ' A few days after, the goods were shipped on board, and the vessel sailed for Havre de Grace, in France, where she arrived about the 1st July, 1795, from thence, by direction of Gomez, who was on board, she sailed to Ham- burgh, and there landed the goods, which were afterwards, by order of Gomez, reshipped to London, and there sold. *The appellant made repeated ap- [*437 plications to the respondents, or their agents, to make election to receive the purchase money out of the proceeds of the articles in Europe, and to give an authority, by which the appel- lant might receive the surplus thereof, after the respondents had retained a sufficient sum to indemnify them for all their advances and responsibilities on account of the appellant. The respondents declining to follow this di- rection and to make the election, the appellant considered them as having thereby substituted themselves in the place of the purchasers, and become liable for the purchase money, and thereupon brought an action at law in the Su- preme Court, and obtained a final judgment against the respondents for the amount. A writ of error was afterwards brought by the respondents to this court, to reverse that judgment, when it was affirmed. (a) (a) The following report of the cause in the Su- preme Court, may be found useful, and will throw some additional light upon the above case : SUPREME COURT JANUARY TERM, 1797. LE GUEN v. GOUVERNEUR AND KEMBLE. This was an action of assumpstf . The declaration contained two counts. The first count was on a special agreement as follows : Louis Le Guen complains of Isaac Gouverneur and Peter Kemble, in custody, &c. for that whereas the said Isaac Gouverneur and Peter Kemble, on the the 13th April, 1795, were, and long before had been, ] and ever since have been, and now are, merchants j and factors, to wit, at the city of New York, at the ! first ward of the said city, in the county of New | York, and during all that time, have carried on there the business of factors under the firm of Governeur & Kemble, and as such factors have been used to re- ceive from divers persons, goods, wares, and mer- chandise, to be sold and disposed of upon the account I of such persons respectively, and the same goods, j wares, and merchandise, to sell and dispose of upon i such account, in consideration of certain rates of i commission or factorage to them allowed upon the ! amounts of the sales by them made of such goods, j wares, and merchandise, according to the usage and custom of the business of factors aforesaid, in the i city aforesaid. And whereas the said Louis, on the j said 13th day of April, in the year aforesaid, at the ' city, ward, and county aforesaid, was possessed of i 257,129 pounds of cotton wool, and 12,99o pounds of : indigo, as of his own proper goods and chattels ; and ' he the said Louis being so thereof possessed, it was then and there agreed by and between the said Louis and the said Isaac Gouverneur and Peter Kemble, 382 that the said Louis should deliver the said cotton wool and indigo to the said Isaac Gouverneur and Peter Kemble, to be by them sold and disposed of upon his account, and that they the said Isaac Gou- verneur and Peter Kemble should sell and dispose of the same upon his said account, and should ad- vance and pay, or become bound as sureties, for the freight, duties, and all other lawful and reasonable charges and expenses of and concerning the said cotton wool and indigo, and for so doing should be allowed a commission of 2 1-2 per cent, upon the amount of the sales thereof, and such further com- mission as according to the course of their agency therein, and the usage of merchants and factors in the city aforesaid, in the like cases, they might be entitled to have, as a reward for their pains and trouble therein. And whereas the said Louis, in pursuance of that agreement, afterwards, that is to say, the same day and year aforesaid, at the city, ward, and in the county aforesaid, delivered the said cotton wool and indigo to the said Isaac Gouverneur and Peter Kemble, to be by them sold and disposed of as aforesaid ; and the said Isaac Gouverneur and Peter Kemble then and there received the said cot- ton wool and indigo, to sell and dispose of the same as aforesaid. And whereas the said Isaac Gouver- neur and Peter Kemble, after the delivery to them of the said cotton wool and indigo, to wit, the same day and year af oresaid, at the city, ward, and in the county aforesaid, sold and disposed of the said cot- ton wool and indigo, by the description of "upwards of 600 bales of cotton in the gross weight," and "about 12,000 weight of the Isle of France indigo," to Abraham R. Rivera, Isaac Gomez, Jun. and MoseB Lopez, of the city aforesaid, merchants, for the ac- count of the said Louis Le Gunn, upon the terms and conditions following, to wit, that they the said Abra- ham R. Rivera, Isaac Gomez, Jun. and Moses Lopez should pay to them the said Isaac Gouverneur and Peter Kemble for the said cotton wool, by the de- JOHNSON'B CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUU AND PETER KEMBLE. 488 438*] *Before the trial at law, two of the purchasers, (the other refusing to join), on the llth October, 1796, filed a bill in chan- cery against the appellant, the respondents, 430*] *and Lopez, the other purchaser, pray- ing relief, on the ground of fraud in the sale; alleging, that the appellant had represented the cotton as of the growth of the Isle of scription aforesaid, at and after the rate of three shillings current money of the State of New York, for each pound thereof ; and for the said indigo by the description aforesaid, at and after the rate of sixteen shillings of like current money aforesaid for each pound thereof; and towards that pay- ment should make and deliver to the said Isaac Gouverneur and Peter Kemble their joint notes in writing, commonly called prom- issory notes, thereby promising to pay to them the said Isaac Gouverneur and Peter Kemble, or their order, twelve months after date, the amount of the said cotton wool and indigo, at the rates and prices aforesaid, with interest thereon for the term of ten months, at and after the rate of six pounds for every hundred pound for a year, and should cause the said cotton wool to be, on or before the 25th May, next ensuing, laden on board a certain ship called the White Fox, then being in the port of the said city of New York, to be carried in the said ship to Havre de Grace, in France, or Hamburgh, in Germany, in parts beyond the seas, one or both of the said places, to the intent to sell and dispose of the same there ; and should also cause the said cotton wool and indigo to be fully covered by in- surance, and the policy or policies of such insurance should deposit with the said Isaac Gouverneur and Peter Kemble, by way of collateral security towards securing the payment of the said notes, in case of the loss of the said cotton wool and indigo in the voyage aforesaid ; and in case of, and after the land- ing of the said cotton wool and indigo in some for- eign port, should cause the certificates, documents, and proofs required by the laws of the United States, to ascertain the said landing, in order to the obtaining of the drawback of the duties thereupon allowed by the said laws, to be forwarded and sent to the said Isaac Gouverneur and Peter Kemble to the end that they, the said Isaac Gouverneur and Peter Kemble, might obtain the said drawback for their benefit ; and also should cause to be applied the proceeds of the sales of the said cotton wool and indigo in France, or elsewhere, as soon as the monies arising therefrom could be remitted and received in the said city of New York, towards the payment of the notes aforesaid, to abate the growing interest thereon from the time or times of and in proportion to such payment, but that never- theless the said Isaac Gouverneur and Peter Kem- ble, should have a right to elect to receive the whole or any part of the amount of the said notes, at Havre de Grace aforesaid, or any other port in Eu- rope where the said ship might discharge the said cotton wool and indigo, to be paid by the said Abra- ham R. Rivera, Isaac Gomez, J un. and Moses Lopez, to them the said Isaac Gouverneur and Peter Kem- ble, or their agent, out of the proceeds of the sales of the cotton wool and indigo, together with a pre- mium thereupon, at and after the rate of five pounds for every hundred pounds thereof, for receiving the same in Europe, and to be paid in coin, that is to say, in Spanish milled dollars, at and after the rate of 100 cents lawful money of the United States for each dollar, or in French crowns at and after the rate of 110 cents of like money aforesaid for each crown : and that the said Isaac Gouverneur and Peter Kemble, when advised of such payment or payments, should make endorse- ments thereof upon the said notes, which said sale and disposition, upon the terms and conditions aforesaid, are expressed in and appear by a certain agreement in writing, the date wnereof is the afore- said 13th April, in the year aforesaid, made by and between the said Abraham R. Rivera, Isaac Gomez, .Tun., and Moses Lopez of the one part, and the said Isaac Gouverneur and Peter Kemble of the other part, and now in the possession of the said 1 Isaac Gouverneur and Peter Kemble, whereby also the said parties for the true performance thereof, bind themselves each unto the other in the penal sum of 20,000 dollars : and the said Louis doth aver, that the said sale and disposition were made, and the said agreement therefore entered into by the said Isaac Gouverneur and Peter Kemble, by the immediate JOHNSON'S CASES, 1. *France, whereas it was in truth of the [*44O growth of Surat; and the indigo as of two de- scriptions, Flotang and Violet Copper, when a small part only was of one of those descrip- tions, *and the remainder of different [*441 kinds, and that the appellant had produced samples agreeing with his representation; that the articles proved to be of inferior quality to direction, and with the immediate privity and con- sent of the said Louis, and that all and singular the matters and things in and by the said writing- agreed to be performed to the said Isaac Gouver- neur and Peter Kemble, and particularly that the right by them thereby reserved, to elect to receive the whole or any part of the amount of the said notes, at Havre de Grace aforesaid, or any other port in Europe, where the said ship should discharge the said cotton wool and indigo, together with the said premium of five per cent., were intended for the special benefit and advantage of the said Louis, subject only to the lien and right of the said Isaac Gouverneur and Peter Kemble, to have and receive the general balance of their account with the said Louis, and to be secured for and concerning such further and other claims and demands, as they might and should be entitled to and have, by reason of their agency and undertakings, for and on be- half of the said Louis, as his factors, to wit, at the city, ward, and in the county aforesaid : And the said Louis doth also aver, that afterwards, and be- fore the aforesaid 25th day of May, in the year aforesaid, that is to say, on the 24th day of May, in the year aforesaid, at the city, ward, and in the county aforesaid, the said cotton wool and indigo were by the said Abraham R. Rivera, Isaac Gomez, Jim. and Moses Lopez, laden on board the ship afore- said, then being in the port of the said city of New York, and the said ship with the said cotton wool and indigo on board, forthwith thereafter set sail from the said port of the said city of New York, to proceed on her said voyage immediately to the port of Havre de Grace aforesaid ; by reason whereof, they, the said Isaac Gouverneur and Peter Kemble were in duty bound to pursue the direction and re- quest of the said Louis, as touching the exercise of the right, so as aforesaid reserved, to receive the whole or any part of the amount of the notes afore- said at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, together with the said premium thereupon, that is to say, within the limit and to the extent of the sum which would be due to the said Louis, upon the amount of the said notes, after reserving and deducting thereout so- much as would be necessary and sufficient to satisfy the said Isaac Gouverneur and Peter Kemble for the general balance of their account aforesaid, and also to secure them for and concerning such further and other claims and demands, as they might and should be entitled to and have, by reason of their agency and undertakings for and on behalf of the said Louis, as his factors; and were also in duty bound, upon the request and direction of the said Louis, to give to the said Louis, power and authori- ty to receive from the said Abraham R. Rivera, Isaac Gomez, Jun., and Moses Lopez, the residue of the amount, of the said notes, after such deduc- tion and reservation as aforesaid, together with the said premium thereupon, at Havre de Grace afore- said, or at any other port in Europe, where the said ship should discharge the said cotton wool and in- digo, out of the said proceeds of the sales thereof : And in consideration thereof, they, the said Isaac Gouverneur and Peter Kemble, afterwards, to wit, on the same 25th day of May, in the year aforesaid, at the city, ward, and in the county aforesaid, un- dertook, and then and there f aithf ully promised the said Louis, to exercise the right so as aforesaid re- served, within the limit and to the extent aforesaid, pursuant to his request and direction, and to give to him. if by him requested and directed, the power and authority aforesaid ; and the said Louis in fact saith. that afterwards, to wit, on the same 25th day of May, in the year aforesaid, and often afterwards, at the city, ward, and in the county aforesaid, he requested and directed the said Isaac Gouverneur and Peter Kemble to elect to receive the amount of the said notes, or at their option, so much thereof as would be due to the said Louis, after deducting and reserving so much as would be necessary and sufficient to pay and satisfy the said Isaac Gouver- neur and Peter Kemble, for the general balance of 38S 442 COURT OF ERRORS, STATE OF NEW YORK. 1800 442*] *thosc for which they were sold, and brought in London, $20,000 less than they would have done, had they been of the description and quality represented. 443*] *The appellant, in his answer to this bill, on the 23d Februarv, 1797, fully and pos- itively denied all the allegations of the com- plainants on which the charge of fraud their account aforesaid, and also to secure them for and concerning 1 such further and other claims and demands, as they might and should be entitled to, and have, by reason of their agency and undertak- ings, for and on behalf of the said Louis, as his fac- tors, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, out of the said pro- ceeds of the sales thereof ; and after such deduction and reservation made, to give to the said Louis power and authority, to receive from the said Abra- ham R. Rivera, Isaac Gomez, Jun. and Moses Lopez, the residue of the amount of the said notes, to- gether with the said premium thereupon, at Havre He Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, out of the said proceeds of the sale* thereof : And the said Louis further, in fact sjvith, that after such deduction and reservation as aforesaid made, there would remain due to him, the said Louis, as for the residue of the amount of the said notes, a large sum of money, to wit, the sum of 70,000 current lawful money of the State of New York, of which the said Isaac Gouverneur andPeter Kemble then and there had notice : Nevertheless, the said Isaac Gouverneur and Peter Kemble, not regarding their said promise and undertaking, ac- cording to their duty as the factors of the said Louis, ,o as aforesaid made, but contriving, and fraudu- lently intending, craftily and subtilly to deceive and defraud the said Louis in this behalf, although often requested and directed thereunto as aforesaid, have not elected to receive the said amount of the said notes or any part thereof, at Havre de Grace aforesaid, or any other port in Europe, where the said ship should discharge the said cotton wool and and indigo, nor have tney jjiven to him, the said Louis, the power and authority so as aforesaid by him requested of them, as they ought to have done, but have wholly refused so to do, &c. The second count was for money had and re- ceived to the use of the plaintiff. The plaintiff con- cluded with demanding damages to 70,000. The defendants pleaded non (Wtumpyit. The cause was first tried in March, 1797, at the cir- cuit held in the city of New York, before Mr. Justice Lewis, when a verdict was found for the defend- ants, on the first count. In April term following, a motion was made on behalf of the plaintiff to set aside the verdict and for a new trial, which was elaborately argued by the counsel on both sides. A new trial was granted by Hobart, J., Lansing, J., and Benson, J., against Yates, Ch. J., and Lewis, J., who dissented. . The new trial was at bar, when the jury found a special verdict, and the following are the material facts which it contained : On the 13th of April, 1795, Le Guen was the owner of sundry goods and merchandise, to wit, of 687 bales of cotton, and 24 casks and 38 cases of indigo, which before that time had been placed by him in the hands of Gouverneur & Kemble, as his factors and agents, to sell and dispose of the same for his best advantage, and upon the commission usually allowed to such factors and agents for the transaction of such business. By the inter- vention and express consent and direction of Le Guen, Gouverneur & Kemble, as his factors or agents, on the 13th of April, 1795, sold the said goods and merchandise* to Isaac Gomez, Jun. and Moses Lopez, copartners in trade, under the firm of Gomez & Lopez, and to one Abraham R. Rivera, upon the terms and conditions contained in a certain contract made between Gouverneur & Kemble, Gomez & Lopez, and Rivera, which was produced in evidence, and is as follows : "Whereas Gomez & Lopez, and Abraham R. Rivera, have agreed with Gouverneur & Kemble, to take upon themselves the charter of the Hamburgh ship White Fox, Captain Haberstrok, on the same terms which were made with Mr. Dohrman. for her to proceed from the port of New York to Havre de Grace and Hamburgh, for the consideration of two thousand pounds sterling, payable in London, con- *was founded. On the 9th May fol- [*444 lowing, the respondents put in their answer to the bill, declaring that they did not know that the appellant had practised any fraud or mis- representation *in the sale, and on the [*445 20th June following, Lopez, the other purchaser, put in his answer, which agreed in substance with that of the appellant, and exculpated ditioned that there shall be fifty running days al- lowed to load and unload the said ship, and that I every day over and above that time the ship may be | detained, demurrage of five pounds sterling per day [ shall be allowed for such detention. And whereas they, the said Gomez & Lopez, and Abraham R. Rivera, do further agree to purchase (and load in S the said vessel) from the said Gouverneur & Kem- ! ble, upwards of 600 bales of cotton in the gross j weight, at three shillings New York currency per 1 pound, and about 12,000 weight of Isle of France in- digo, at sixteen shillings said currency, the net pro- ceeds payable in their joint notes of hand in this city, twelve months after date, with ten months interest thereon, at the rate of six per cent, per an- num, subject to the following conditions, viz : 1st. That the said Gomez & Lopez, and Abraham R. Rivera, will have the property all covered by in- surance, and the policies for such insurance shall be lodged with Gouverneur & Kemble, as a collateral , security for the payment of the notes. 2d. That ! whatever property may be first received from the i sales of these goods in France or elsewhere, shall be : applied to the payment of the notes, as soon as the I money can be received and remitted here, to abate ! the growing interest, any time within the twelve | months. 3d. Th*> purchasers obligate themselves to return the necessary depositions and certificates of the goods being landed in a foreign country, to en- ' able the said Gouverneur & Kemble to recover the drawback of the duties for their benefit, which they i the said Gomez & Lopez and Abraham R. Rivera re- | linquish any interest therein, and they engage the said cargo of cotton and indigo, shall be on board on or before the 25th of May prorimo. 4th. That the I said Gouverneur & Kemble may have it in their op- ! tion to receive the whole or a part of the amount of the said notes at Havre de Grace, or at any port the ship may discharge at in Europe, which they, the said Gomez & Lopez and Abraham R. Rivera engage i to pay them, the said Gouverneur & Kemble, or i their agent, out of the proceeds of the sales of the j cotton and indigo, together with a premium of five per cent, thereon, for receiving it in Europe, which is to be complied with in specie, either in Spanish , dollars valued at 100 cents, or in French crowns at 110 cents ; and the said Gouverneur & Kemble, on their parts, will make indorsements on the notes, when advice shall be received of such payments being made. For the true performance of all which ! covenants hereunto subscribed to, the parties bind 1 themselves each unto the other, in the penal sum of 20,000 dollars. Witness our hands in New York, this I 13th day of April, 1795, and seals." The cotton and indigo were on the same day de- I livered by Gouverneur & Kemble to the purchasers, who, bef ore the 30th of May, 1795, put them on board of the ship White Fox, having previously given I their notes to Gouverneur & Kemble for 48,966 fe., payable in 12 months. The cotton and indigo were entered for exporta- ; tion at the custom-house, and Gouverneur & Kem- ' ble received a debenture for the sum of 4,834 15s., j payable on the 15th day of August in the same year, ! and as agents and factors of the plaintiff, but in j their own names, executed a bond to the United i States of America, in the penalty of $12,086.87, in 1 the usual form, for the landing of the said cotton 1 and indigo in some foreign country, and to produce the regular certificates of evidence thereof, within j 12 months from the date thereof. On the 4th of May, 1795, Gomez. Lopez, and Rivera 1 chartered the ship White Fox, of the master, Died- ! erick Kohne, from Now York to Havre de Grace, and from there to Hamburgh. The charter-party was set forth, in the special verdict, and was in sub- I stance* as follows : That the shippers were to pay 2,000 sterling for the entire freight, in good bills on London, and an additional freight for any goods that might be shipped at Havre de Grace for Hamburgh. Fiftv days were allowed for loading and unloading, &c., and five pounds sterling de- murrage was to be paid for every day the vessel was longer detained. JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 446 446*] *him from all the allegations of fraud or misrepresentation. A few days after the affirmance of the judg- -447*] ment in the *Supreme Court, to wit, on the 30th March, 1798, the respondents filed a bill in the Court of Chancery against the appellant, stating the sale of the cotton and indigo, the -448*] *suit brought by Gomez & Rivera in chancery, and that they had obtained an in- junction on the ground of fraud on the part of the appellant, and that the suit remained *undetermined; and praying appellant might be enjoinec that the [*449 from suing out execution on the judgment obtained by him against the respondents in the Supreme Court, *as it would be unjust to permit him [*45O On the 4th of May, 1795, Gouverneur & Kemble executed a bond to the owner of the vessel, in the entitled ; that I had accordingly engag ed a fast sail- , , ing vessel to carry me, and that the necessary ar- penalty of 2,800 sterling, guaranteeing 1 the due ! rangements being made, I should depart the 3d or performance of the charter-party on the part of 4th instant, to give my personal attention to the Gomez, Lopez, and Rivera ; and on the 28th of | course of an affair of primary importance to me, the same month, they executed a bond to one Dorh- ; and thereby, perhaps, prevent any disastrous con- man, who had previously chartered the White Fox, in the penalty of 1,800 sterling, guaranteeing the performance of a certain agreement relative to the charter, between Dorhman, and Gomez, Lopez, and Rivera, on the part of the latter. After the sale and delivery of the cotton and in- digo, the plaintiff, on the 30th of May, 1795, wrote to the defendants a letter, in which he expresses his anxiety as to the steps taken by them to secure the payment of the cotton and indigo sold to Gomez, Lopez, and Rivera, and adds, "it is my wish and de- sire, 1st. That you insist on the conditions of the deed of sale, which relate to the insurance being performed, and require that the amount of the sale be entirely covered, as well as the premium, that in .all cases the recovery of the insurance be sufficient for the payment of what is due to me. 2d. That you do not give any order for the disposal of the proceeds of this shipment, without my knowledge ; and consent, that I may, if I think proper, avail my- self of the 4th article of the contract, to receive the money in France or Hamburgh ; and that we may come to a determination on this subject, be so obliging as to point out, and let me know the hour .and place at wnich we may meet." An interview took place between the plaintiff and defendants, on the same day, in which the plaintiff demanded of the defendants to suspend the , departure of the White Fox, until the insurance upon her cargo was entirely completed, to furnish him with a copy of the contract or writing, respect- ing the sale of the cotton and indigo, with an au- thorization to receive in France the amount of the engagements of the purchasers, and to give him an extract of the account of Gouverneur & Kemble, that he might pay it to their entire satisfaction and discharge ; to which demand they replied, that the sum wanting to complete the insurance, was not of sufficient consequence to delay the departure of the vessel, and that they would provide for the de- ficit, and turning to Gomez, observed that it was his property, and that he had a right to depart with the vessel when lie pleased, and that thev would, on the next Monday, deliver to Le Guen his account current. Le Guen represented to Gouverneur & Kemble, that the proceeds of the cargo were spe- cially liable for the payment of the money due from the purchasers; that he could not be burthened with the amount of the freight and premium of in- surance, and demanded that the purchasers should give security for the payment of these objects, in- dependent of the proceeds of the cotton and indigo, and that Gouverneur thereupon repeated to Gornez, that the cargo was his property, and that he could dispose of it. The ship sailed on her voyage the next day. Gouverneur & Kemble caused insurance to be sequences which might otherwise arise. These de- sires, intentions and expectations, were afterwards reiterated by me, but not being met as I could hope, I, on the 30th of May, wrote the letter Of which a copy is herewith transmitted, and to which I re- ceived no answer. To my surprise, I learnt the next day that the vessel had sailed, and I am this moment ignorant that any adequate means have been attempted to secure the application of the pro- ceeds of the cargo, according to the wish which I communicated, and the right reserved to me by the contract, and I remain unfurnished with any docu- ments or means by which I might take the measures that might appear to me advisable. Even the pre- caution which I urged, of addressing to the house of Le Conteulx & Co., of Rouen, an authenticated copy of the contract of sale.to the end that they might take care of my interest, was at that time refused, and as far as I know, has been omitted. To increase the inconvenience of my situation, I am left with the embarrassment of having on my hands the vessel I had hired to convey me to Europe, and may be ex- posed to loss from that source. In this situation, I am sony to be obliged to think that your house has failed in observing towards me a conduct corre- suonding with my rights and interest, and I con- clude that it has made itself responsible for whafr- ever losses may ensue. Desirous of obviating, how- ever, as far as may still be possible, eventual mis- fortunes to any party, I offer myself to co-operate with you in concerting, without loss of time, such measures as may still be practicable, to give effect to the operation, according to the true intent, and the rights of each party. To this end, we may avail ourselves of such legal or other advice as the nat- ure of * he case may render it useful. But this offer is made upon the express condition that the proposed co-operation shall not derogate in the end, from any claim upon your responsibility for consequences which may at this time exist, and that I shall retain the same rights and remedies that I might have if no such co-operation had taken place." On the same day, Gouverneur & Kemble wrote an answer, as follows : "We enclose you herewith, an account of sales of the goods that were placed in our hands, which render 54,196 11s. lOd. for their net proceeds. We also hand you a statement of our account current, and when we are in the receipt of all the money result- ing from the sales of these goods, and the drawback of the duties, there will be coming to you a balance of 47,544 15s. 6d. We further state, there will be coming to us 6.356 2s. 6d. to cover the present ad- vances, &c., besides which, we are responsible for the charter of the ship White Fox, in 3,733 6s. M. on your account. Under these circumstances, we made upon the cotton and indigo, from the port of j have grounded an objection to give you an author- New York to two ports in Europe, at different pre- ! ization to receive the money in France for the sales miums, and in their own names, and paid the pre- of the goods, until we are first re-imlmrsed and made miii ins, amounting in the whole to $7,367. In the ! secure. We have no objection to co-operate with policies was a note as follows : "The vessel is neutral, and the property warranted American, proof of interest to be made here only, : and not to be bound by the adjudication of any for- eign court." On the 6th of June, 1795, the plaintiff again wrote you for the ultimate security of the property upon fair principles of justice and equity. In justice to those gentlemen who have become the purchasers of the goods, we think proper to observe, that they are men of property and fair characters, and that we are , _._, r disposed to treat them with a degree of delicacy to the defendants, and, referring to their letter of I throughout this unfortunate transaction, which the 29th of May, he says : "I requested that my ac- will evidently end in a considerable loss, and prove count with you might be prepared, in order to be adjusted, and that I might be enabled, by the pos- session of the notes, or some competent authoriza- tion, and an authenticated copy of the contract of sale, to receive the sum which was coming to me out of the proceeds of the cargo, and informed you that it was my intention, thus provided and enabled, to go in person to Europe, to attend the progress of the affair, and receive the payment to wnich I was a gross deception, by their not having a competent knowledge in the article of cotton ; it would there- fore be with reluctance that we should undertake anything that might operate to their prejudice or injury. Still we are not unwilling to devote our- selves to vour interest, nor do we see any reason for all the difficulties and anxieties your imagination is apparently troubled with, without sustaining any real cause of alarm." , JOHN SON'S CASES, 1. N. Y. REP., BOOK 1. 25 385 450 COURT OF ERRORS, STATE OF NEW YORK. 1800- to receive the money, until it was ascertained i whether he had been guilty of the fraud alleged j by the purchasers. The bill concluded with! 45 1 *] *praying an injunction and relief. An i injunction was accordingly issued. On the 7th June, 1798, the appellant put in i 452*] *his answer to the bill of the respond- j ents, in which he set forth the bill filed j by Gomez & Rivera, and his answer to ; that bill, in which he explicitly denied every allegation of fraud. 453*] *To prevent any risk or inconven- i ience to the appellant, the chancellor or- 1 dered the respondents to pay the amount of the | judgment into the bank of New York; and the j 454*] *plaiutiff was permitted to draw out, ' unconditionally, about $53,000; the residue- was received bv him, on giving security to- refund, in case it should become necessary, by the decree of the court. *After publication had passed, the [*455- chancellor, on the 1st March, 1799, directed that an issue should be tried in the Supreme Court, to determine whether there had been *any fraud in the sale of the cotton and [*456- indigo, and ordered the trial to be before a special jury, at the next circuit court in the County of Dutchess. *A previous question having been re- [*45 7 served by the counsel on both sides, to be de- terminea as preliminary to the trial, namely,, "whether the respondents were precluded The verdict then states, that on the 6th of June, 1795, Le Guen was indebted to Gouverneur & Kem- ble in the sum of 4,795 6s. 2d., and that the defend- ants held in their hands a custom-house debenture, the property of the plaintiff, payable in August, 1795, for 4,834 15s. out of which the defendants were entitled to a commission of 60 8s. lOd. which would, after the receipt of the debenture, leave a balance due by the plaintiff to the defendants of 21 3d., upon the general balance of their ac- count, as his factors and agents, and that he con- tinued so indebted until and after the month of August, 1795 : that Gouverneur & Kemble received the amount of the debenture when it became due, and the bonds which they had entered into to the United States custom-house, for and on account of Le Guen. were cancelled on the 1st of April, 1796. That Gouverneur & Kemble charged the premi- ums of insurance to Gomez, Lopez, and Rivera, on the 10th of June, in 1795, and received their joint promissory note for the same, payable in six months from that time. Several letters passed between the parties, of which the following is extracted as the substance : On the 9th of June, 1795, Le Guen writes to Gou- verneur & Kemble, "I observe with regret that (though you have dropped one of the items which originally composed your claim, the premiums of insurance) you persist in the idea of retaining ex- clusively in your command and disposition, the whole of my property, on the ground of a lien upon it, arising trom your agency, which, according to your own statement, amounts to little more than one fifth of its value, and adhere to your objection to give me an authorization to receive any part of it. It was ever my intention, and, as I conceived, imported in my original propositions, to provide for your payment and security to the extent of your just claims, as the condition of the authorization I demanded of you to receive what was rightfully coming to me. This was equally the intention of the co-operation proposed by my letter of the sixth, and I continue disposed to enter into that co-opera- tion upon this principle. It is true, there are sev- eral items in your account about which we differ in opinion, yet I was and am ready to make suitable reservations and arrangements towards a right ad- justment of them ; but I cannot imagine that this ought to have prevented, or ought now to impede precautions and measures tending to secure a due application of the proceeds of the cargo, and to put me in possession of the funds to which I am indis- putably entitled, and according to the election which was reserved for my benefit in the terms of the con- tract. On this ground of putting me in a situation to possess, without delay, that to which I am indis- putably entitled, and of leaving your just and legal claims upon the property, and otherwise, unim- paired, I am still willing to co-operate. But as I conceive there were pretensions and omissions in the first instance, which render you responsible for consequences, as it may now be too late to repair the deficiency, as every moment's delay increases the risks, I still make the offer of co-operation, on condition of holding you in the same state of re- sponsibility in which you were prior to that offer. At the same time, it will be explicitly understood, that in acceding to the co-operation on this condi- tion, you do not incur any new or additional re- sponsibility. With this explanation, I urge an im- mediate and positive answer, whether you will con- cur in an arrangement on this base. Moments are precious. That which might be useful now, may quickly become useless by procrastination." IThe- nature of the co-operation will be an after consider- ation. The terms to be settled between us, accord- ing to our mutual opinions, and the advice we may mutually take." To this letter Gouverneur & Kemble replied, on the 10th of June, 1795 : "It is not our wish to throw any embarrassments in your way, but the magni- tude of our claims, and our engagements in your- behalf, render it proper that we proceed with cau- tion. To stop the ship until the insurance was com- pleted, was not in our power. Messrs. Gomez, Lo- pez, and Rivera, stipulated to make insurance,, but this might be done as well after as before the vessel sailed ; and if neglected altogether, it would amount to a breach of contract only, for which the vessel could not be detained. With respect to the premium for insurance paid by us,althougb we omit- ted it in our last account, we do not assent to the force of your objection to the payment of it. The insurance being effected for your benefit and so- j curity, it is more reasonable that you should run the hazard of recovering back the premium than we,, who act only as agents. To remove, however, every impediment to a settlement, and manifest a spirit of accommodation, this charge has been, for the pres- ent,dropped. We cannot forbear remarking, that not- withstanding your solicitude to obtain the author- ization in question, you constantly uphold a claim upon us for certain consequences, without point- ing out in what manner we may have rendered our- selves responsible. Although we are not conscious- of any act which can give you this claim, and are therefore easy on this head, yet you cannot but per- ceive the impropriety of our admitting that we have incurred this responsibility, which we should do, were we to come to a settlement upon the terms proposed by you. As to our lien on the notes, and other documents relating to this transaction, we never had any doubt of our right to withhold them,, and also to refuse you any authority to act, until the whole of our demand was satisfied, and we sat- isfactorily secured against contingent claims. In- deed, as the contract is in our name, and we are bound under a penalty of $20,000 to endorse on the- notes, which are also in our favour, the pa_ymente>- as they are made, we might insist (were we disposed, as you insinuate, to create difficulties) upon all the moneys passing through our hands,or those of an agent chosen by us, and for that purpose keep pos- session of every paper until the transaction was- finally closed. But we are sincerely anxious to put an end to a controversy which did not originate with us ; for this purpose, we beg leave to refer you to our letter of the 6th instant, in which we were so- expljcit as to the terms upon which we were willing to give you the authority you desire, and to co- operate with you, that nothing remains to be added. To give you, however, a further proof of our wish for a speedy and amicable arrangement, we are willing, if these terms are not agreeable to you, to- submit the whole matter to arbitration." On the 12th of June. 1795, Le Guen writes to Gou- verneur & Kemble : Agreeable to the contents of my letter of yesterday, I have the honour to trans- mit you here enclosed, proposals which would set aside all altercations respecting our respective pre- tensions, until the time when the result of the pay- ments of Messrs. Gomez, Lopez, and Rivera shall Ixi known, saving the settlement of our accounts, which might take place immediately. If your desire for . an arrangement is as sincere as that which actuates- ! me, I flatter myself that you will acquiesce in those JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 458 458*] *by the antecedent circumstance, from insisting on the alleged fraud as a ground of relief," the chancellor decided that they were not precluded, and confirmed the 459*] *order for the trial of the issue. From ! this order, the present appeal was entered to j this court. The evidence given in the Court of Chancery 46O*] on the part *of the respondents, was in proposals ; proposals agreeable to the fairest princi- ples of justice. As moments are precious, I earnest- ly desire that you will favour me with an immediate answer. "Exposition of the claims of Messrs. Gouverneur & Kemble, according- to the account current, and the post scriptum that follows : 1st. 6,256 2s. 6d. Balance in their fa- vour, exhibited by the drawback, which will be paid them by the cus- toms, in the term of three months, 4,834 15 Their commission of receiving 1 and paying, charged in Messrs. Gouverneur & Kemble's account on 53,597 11s. 5d. at 2 1-2 per cent., which, according to the regulations of the chamber of commerce, ap- pears due only on the returns from this State to any part of the United States, ------ 1,339 18 9 A deficiency of about 7,200 Ib. of sugar, of Mr. Beares' parcel, and which ought to be made good to me, - - 370 6,544 13 9 which would present an overplus, exclusive of my other claims upon sundry charges, the missing of two bales of cotton, &c. 3d. 3,733 6s. 8d. Their guarantee for the amount of the freight, assent- ing to the freight being paid out of the first proceeds of the cargo, (sav- ing my claim on whoever it may concern) this guarantee becomes void, or nearly so. "From this exposition, it appears that all the claims of Messrs. Gouverneur & Kemble ought to be confined to that arising from the bond they have given at the customs, for the due return of the cer- tificates of the landing of the said goods in a foreign port, amounting to $12,086.87. Desirous of disposing of my property, and being determined to make use of the right which has been reserved to me, in the 2d and 4th articles of the contract of sale made to Messrs. Gomez, Lopez, and Rivera, enabling me to receive part of their obligations, or the whole of their amount in France, I decide on making the fol- lowing proposals to Messrs. Gouverneur & Kemble, which will convince them of my dispositions to come to an arrangement : 1st. To give me an authenticated copy of the con- tract of sale, and an authorization to receive $100,- 000, in part of the obligations of Messrs. Gomez, Lopez, and Rivera, out of the proceeds of the cargo, after the freight shall have been paid, and immedi- ately after that payment only, enabling me fully to receive that sum. 2d. To keep at their disposal the balance of the above-mentioned obligations, amounting to $22,- 415.37, for their bond to the customs, saving to myself the disposal of this balance when the landing certificates are arrived, and after the final settle- ment of our account. 3d. To drop, for the present, all altercations, re- specting the responsibility which I have a right to exercise against Messrs. Gouverneur & Kemble, if the delay of the necessary dispositions in France should be productive of some injury to me, in the recovery of the obligations of the purchasers of my goods." To this letter and the proposals, Gouverneur & Kemble, on the same day, replied as follows: " Desirous as we are of coming to an accommoda- tion with you, we cannot, consistent with a regard to our own security,accede to the propositions which accompanied your favour of this date. We deem ourselves entitled to a re-imbursement out of the first proceeds of the cotton and indigo. If, there- JOHNSON'S CASES, 1. substance as follows: That the appellant in his conversations with Gomez, Lopez, and Rivera, represented the cotton as of the growth of the Isle *of France, and the indigo as of two [*40 1 qualities, Flotang and Violet copper; and that he produced samples agreeing with this repre- sentation; that the purchasers wished to delay *the conclusion of the bargain for a few [*46& days, in order that they might examine thear- fore, we authorize you to receive $100,000, it may ex- haust the whole of the proceeds, in which case our security will be considerably diminished, as we could have recourse only to Messrs. Gomez, Lopez, and Rivera, on their notes," &c. On the 15th June, Le Guen again writes: "I bad hoped that my propositions would have appeared to you entirely reasonable, or at least, that you would have made me such others in return of a specific nature,as you did yourselves approve. But instead of this, you merely refer me to your former prop- ositions, of which I know not of any, except 'a reference to arbitration. I am obliged to conclude still more firmly than heretofore, that it is your de- termination at all events to retain my whole prop- perty in your disposition, till the final winding election which was reserved by the terms of the con- tract, to receive the money coming to me, iu Europe, and disappointing all the measures pro- jected on that basis. I protest once more against this mode of proceeding, and all the consequences of it; and I demand, for the last time, that you forthwith furnish me with an authenticated copy of the contract of sale, and with a competent authorization to receive, at the port of discharge, whatever sum shall remain of the proceeds of fru goods sold on my account, to Messrs. Gomez, Lopez, and Rivera, after deducting and reserving at your disposal, such sum as shall be completely sufficient to cover you for the general balance of your ac- count, and for all that you have made yourselves accountable for on my account, also for the com- missions you claim as well on the receipt as on the sale, and even for damages, in case of protest of the bill of exchange to be drawn for the freight or char- ter money.and for insurance of the money which you claim, to cover you for your advances and responsi- bilities to the United States. This, nevertheless, is not to be understood as a final admission of any claims on your part, which may not be according to law, and the usage of trade ; but as a preliminary arrangement for your eventual security." On the same day, Gouverneur & Kemble sent the following answer: " Upon reviewing our late cor- respondence, we cannot but think that we have manifested every disposition to bring the contro- versy between us to a speedy and amicable deter- mination. We have offered, and again repeat the proposal, that we will deliver into your hands all the papers and notes which regard this transaction without delay, upon your giving us satisfactory security in this country, to pay us in a reasonable time our commission, and such sums as we may have disbursed, or made ourselves responsible for, on your account, and also sufficiently secure us against the payment of such sum s as we may eventually be called upon by reason of pur interference in this business. When it is considered that we have a right to insist upon an immediate payment of the balance of our account, as the condition of our de- livering 1 up these papers, you cannot deem this proposition unreasonable. We are certainly not obliged to receive payment in France, especially at a time when so many difficulties attend getting money from that country: and were we to accede to the terms held out by your favour of this date, we should be obliged to wait the event of an appli- cation for the money to Messrs. Gomez, Lopez, and Rivera, in France, before we could have recourse to you. Much more has already been said upon this subject than was necessary: to conclude, we con- ceive ourselves entitled to keep all the securities we have at present, and were we disposed to be litigious, we might, even now, apply to you in a judicial way for the payment of our demand. This being our situation, we have no hesitation in rejecting 1 your offers of this day as inadmissible. If you are so solicitous of having authenticated copies of the con- tract, and an authorization to receive the money, we are willing to give them upon the terms herein- 462 COUIIT OF ERRORS, STATE OF NEW YORK. 1800 tides, but the appellant objected, saying the delay was unnecessary, as he would warrant 46&*] *the articles, and if allowed, the draw- back would be lost, as the time for exportation j with that privilege was nearly expired; that j the purchasers were ignorant of the nature j 4(>4*] *of the articles, but relying on the j promise of the appellant to execute a warranty, i they concluded the bargain without further ' examination, and left the shipment of the *articles to the direction of the appel- [*465 lant; that the appellant and a person who was his broker, produced letters from France stat- ing, that cotton like the sample exhibited *was worth there from a dollar to a [*46<> dollar and a half a pound, and indigo five dol- lars a pound ; that it was discovered in Lon- don, that the cotton was of the growth before mentioned, or upon any other terms which three indifferent gentlemen shall point out." On the IKth June, 1795. Le Guen again writes, among 1 other things: I " confine myself to demand- ing of you, without delay, an authenticated and certified" copy of the contract of sale made with Messrs. Gomez, Lopez, and Rivera, and to declaring to you, that inasmuch as you have, by the circum- stances which preceded the departure of th^cargo, and in addition thereto, by refusing to comply with all the propositions and demands 1 have made to you since, entirely deranged my plans, and deprived me of the power of commanding my funds in France, and of all the advantage from the employment of them there, I hold you responsible, and shall insist upon your responsibility for all losses, damages and disad vantages which may ensue, including an in- demnification for the derangement of the measures I had adopted for proceeding in person to France, to possess myself of my property." On the 17th October, Gouverneur & Kemble, in a letter, observe: "That unfortunate adventure of Mr. Gomez, as we were well aware of, is like to turn to a ruinous account. After waiting some time at Havre, he has been obliged to expose it to further risks and expenses, by proceeding to Hamburgh for a market." On the 7th December, 1795, Gouverneur & Kemble write: " As a vessel will snil in a day or two for Hamburgh, we take the liberty to inform you, that we are willing, if it will meet your approbation, to authorize the American consul residing at that port, or any other gentleman we can mutually agree upon, to receive from Messrs. Gomez, Lopez, and Rivera, payment on account of their notes, agreea- ble to the fourth article of their contract with us. If you deem any other authority necessary, we will have no objection to join in it, if the same shall be consistent with our safety and security. As Mr. Gomez is at Hamburgh with the cargo, it is probable such authority will find him there, and that he will IK- disposed to treat with our agent upon fair and equitable terms. The money we propose to remain in the consul's hands, subject to our draft, or sub- ject to your own order; provided you will either pay. or give us good security, for our demands against you. In case of any difficulty in adjusting our account, we will submit the same to the monthly committee of the chamber of commerce.or to any other indifferent persons." To this, Le Guen, on the 9th December, replied: " You are perfectly apprised of the ground on which I conceive myself to stand. I have made a contract upon a definite price, and I have legal advice upon which I rely, that you are my guarantee in case of disastrous consequences ; looking to your responsi- bility, I feel tranquil for the event, and cannot be expected to abandon or weaken so good a ground. With this saving, which I make once for all. as to what I now add, or may hereafter say upon the sub- ject, I reply to your first letter, that I think it would be for the interest of all concerned, that the pro- ceeds of the cargo in Hamburgh should be paid into the hands of, and deposited with some person or house of unquestionable responsibility. Not being acquainted with the mercantile standing of the American consul, I can say nothing, but I have en- tire confidence in either of the houses of Messrs. Bernherd & Nootnagal, Lubbert & Dumas, and Matthuson & Silem. On the llth December, Gouvneur & Kemble again write: " Under a conviction that it is your wish that we may assume a discretion which may eventually render us liable, we think proper to inform you, that we shall not empower any nouse in Europe to receive any payment on the notes we hold, without an express authority from you in writing for that purpose. Unless we receive explicit directions from you on that head, we shall think it our duty to wait until the money is remitted to this country, or until we receive advice that it is placed in Europe, so as to be commanded by us without any risk." On th<- .same day, Le Guen writ'js: " I entirely ap- 888 i prove of the idea that if the deposit be made with j either of the houses I have indicated, or with anv other we may agree upon, I wilj take the risks of it to the extent of the sum deposited, and it shall in no wise be deemed to implicate you in any new responsibility. But I consent to "this only on the ground that I cannot obtain from you an authori- zation to receive the proceeds myself, which I should prefer, and if obtained, would immediately depart for Hamburgh. The sum 1 shall receive will be in deduction for the one I claim, preserving at the same time, all my right for the remaining bal- ance, which I mean to maintain in either case." To this, Gouverneur & Kemble, on the same day, answered: " We are ready to execute the necessary powers to either of the houses which you mention in your letter of the 9th inst., in such form as our counsel shall jointly agree upon, for the purpose of receiving the proceeds of the cargo sold to Messrs. Gomez, Lopez, and Rivera, in this case it is under- stood, that you secure us for all our claims, and against all the contingent demands which may be made against us on account of our agency, which, ! in case of any dispute, shall be immediately ad- ; justed, if you agree, by the monthly committee of the chamber of commerce, or by any three mer- i chants we can fix upon." On the 36th December, Le Guen writes: "I have i been favoured with your letter of the 33d inst., ! therewith enclosed a co)py of the one of the 32d inst., which you wrote to Messrs. Lubbert & Dumas, in Hamburgh, I am surprised you do not notice concern- power, ig to my letter of the 19th inst. that as you are unwilling to agree with my proposal to di- | vide the deposit between two houses, I consent that it be paid into the hands of Messrs. Lubbert & Du- ' mas ; as the deposit is at my risk, I expect that it will not be disposed of, in any case, without my consent." On the 3d January, 1798, Gouyerneur & Kemble write : "That they are in possession of the informa- tion respecting the operations of Mr. Gomez in England, which makes it necessary that the power should go forward to Messrs. Smiths & Atkinson, of London, instead of Messrs. Lubbert & Dumas, of Hamburgh, which is prepared ready for the pur- pose, and they will take care to forward it ; that it is probable, from their information, that the prop- erty will be removed from Hamburgh to London ; that part of the cotton was actually on its way. They will, therefore, pursue the necessary steps to touch as much of the money as can be done in Eu- rope, not doubting of his approbation." To which Le Guen, on the 6th January, answered : "Though I will not disapprove of any measures you may take to secure the proceeds of the cargo for whomsoever it may concern, yet it must be under- stood, that I assume no special risk upon the sub- ject, and that I look more and more to your event- ual responsibility. The going with the cargo from the port of discharge at Hamburgh, to London, changes essentially the nature and effect of the con- tract." On the 35th March, 1798, Gouverneur & Kemble write to Le Guen, that "they transmit to him there- with, the copy of a letter they have just received from Mr. Gomez, relative to the cotton and indigo sold to Gomez, Lopez, and Rivera. An extract of a letter relative to it, from Messrs. Smiths & Atkinson, of London ; and that after he has perused them at- tentively, they would be glad to receive his direc- tions respecting it, if he wishes anything to be done on their parts." To which Le Guen, on the 38th March, replies : "I have received your note of the 35th inst. with copies ] of letters of the 5th and 6th of January last, from 1 Mr. Gomez, and Messrs. Smiths & Atkinson. In an- swer, I refer you to mine to you, of the 6th January last ; and have only to add, that situated as the affair is, I have no directions to give." The verdict then states, that by the custom of JOHNSON'S CASES, 1. 1SUO Louis LE GUEN v. ISAAC GOUVERNEUR AND PKTER KEMBLE. 467 4r<$7*] *of Surat, and the indigo of fivediffer- - ent kinds, a small quantity only being of the qualities represented; that in consequence of this discovery, Gomez, who was present, 468*] *abaudoned the articles to the agents of the correspondents in London; that the cotton sold for seventeenpence sterling, and the indigo at four shillings and sixpence, and five 460*] *shillings a pound; but had they been Normandy, in which province the port of Havre de Grace is situated, the vendor of a cargo of (roods and merchandises has a privilege or lien upon the cargo, for the price of it, until it is sold by the pur- chaser, and actually delivered to another person. And that in consequence of such lien or privilege, such vendor, if he thinks himself in danger of losing his security, may apply to the consular tribunals for redress, and that such tribunals, proceeding: up- on principles of equity and good conscience, would interpose to prevent the removal of such cargo by the purchaser to another place, unless upon good security being given to the vendor, it appeared that it would thereby be subjected to great danger or deterioration, and this, even if there was a clause in the contract of sale allowing the going to another port ; but that in the hist case very strong proof would be required that the purchaser was in real danger of suffering by the removal ; that Louis Le (luen always was, and yet is, a citizen of France ; that Gouverneur & Kemble did not, at any time previous to. the 1st December, 1795, elect to receive the proceeds of the said cotton and indigo at the port of discharge, nor to give to the said Louis Le < Juen any authorization to receive the proceeds of the said cotton and indigo in Europe, or any part thereof, and did, on or about the 22d December aforesaid, elect to receive the said proceeds at Ham- burgh, and afterwards did, on the 2d January, 1796, elect to receive the said proceeds at London ; that in the month of June, 179o, a demand was made by the plain ti 11', of the defendants, for an authorization to receive from the said Gomez, Lopez, and Rivera, agreeably to the terms of the contract aforesaid, at the port in Europe, where the said ship White Fox should - ; ceeds of the sales of such cotton and indigo as iv- i mained, after deducting a sum sulficient to cover ! the defendants for the general balance of their ac- i count, and other claims and responsibilities, in con- j sequence of their agency. This action, in its consequences affecting private 1 interests of great magnitude, has been strenuously j contended between the parties, in every stage of its progress which would admit of urging their adverse ! and totally irreconcilable pretensions. In the ardor of controversy, they have, however, I conceded these points, whicn, without their con- l cession, would not admit of a doubt That, in ordi- i nary cases, a factor is bound to comply with the in- I structions of his principal, in the disposition of the | subject entrusted to his care ; that the f actor has a lien on it, for all his advances, commissions and re- sponsibilities ; and that he is not compellable to part with the subject or its production, if not converted into cash, until those demands are completely satis- fied ; for, if the subject is converted into cash, the reason for pledging the whole, for the security of the factor, ceases ; as, by retaining the sum he is entitled to, or responsible for, he can incur no farther risk of failing in an ultimate satisfaction. No doubt could arise respecting the application of , these principles to this case, while the subject re- ; mained to be disposed of in the ordinary mode of j sale, at the place at which it appears both parties originally contemplated a disposition of the subject. But the parties having by a contract, to which they all assented, made an arrangement to convey the subject to Europe, their situation was by that means varied as to the local exercise of their re- spective rights ; and which, I take it, by that con- tract, they reciprocally agreed to modify, so as to carry it into effect in all its parts, preserving their mutual relations and rights, as principals and fac- tors. The questions which arose on the contract were : 1st. Whether the defendants were bound to elect to receive the proceeds of the subject of factorage in Europe. 3d. Whether the plaintiff had a right to exact payment of the surplus from the defendants in Europe, after satisfying the whole amount of their commissions, advances and responsibilities ; and, 3d. If the defendants were bound to make such election, and were subject to make such payment, what ought to be the measure of damages? As to the first point, the subject of factorage was evidently entrusted to the defendants for the benefit of the plaintiff : his interest was the primary object to be attended to in the conduct of his factors, and every instruction given by him, not incompatible with' their rights, it was their duty to conform to and carry into effect. The election reserved to the defendants by the contract with Gome;., Lopez, and Rivera, must of necessity l>e considoivd, as for his benefit and emolument, and as inseparably incident to the trust confided to them ; for .very disposition of the subject, pursuant to the in: tructionsof their principal, could only be for his advantage exclu- sively; unless some positive contract detract* -d from, or made a different modification of his inter- ests. From the most attentive examination of the contract given in evidence ut the trial, I could dis- 889 471 COURT OK ERRORS, STATE OF NEW YORK. 1800 but said that it should be done soon; that all answer on oath, denying all the allegations of the partners were concerned in and privy to fraud, and that there were any representations 472*] *the purchase; that the market price I of fraud as stated by the witnesses of the re- in New York, at the time, for Surat cotton, spondents, *was relied on. It also ap- [*474 was 22 cents a pound, and for Copper indigo, I peared to be confirmed by the evidence of 94 cents a pound. j Moses Lopez, one of the purchasers, and Abra- 473*] *On the part of the appellant, his | ham Gomez, Jun. cover no traits in it, to satisfy my mind that it was the intent of the parties that this obvious principle should be departed from. The reservation of the rights of election to receive the proceeds of the cot- ton and indigo, either at New York or in Europe, and the premium to be received by the defendants, if they should elect to receive in Europe, were, in my opinion, clearly intended, and ought to enure solely for the benefit of the plaintiff ; if so, the de- fendants could not, after consenting 1 to export the subject, avoid a compliance with the instruction of their principal as to the exercise of the right of election, without violating their duty. As to the second point, it appeared to me, that though the defendants were not compellable to part with the subject confided to them as factors, to be disposed of at New York, so as to permit its expor- tation, without being satisfied for the whole amount of their commissions, advances and responsibilities ; yet, that by assenting to the exportation, they vir- tually stipulated to exercise the rights they had ac- quired, as factors, at the port of discharge in Europe ; by that means relinquishing the locality of their agency, and consenting to leave it at large, and thus attaching their rights and duties to the subject, to be exerted and exercised at whatever place it might be transmitted to, in pursuance of the contract, to which they were parties, and thus placing themselves in the same situation, and pre- serving the same relations at the port of discharge, as they were placed in, and as subsisted between them at New York, previous to the arrangement contemplated by the contract. If this is a legal and consistent exposition of the contract, it would result, that though the defend- ants might retain the control of the property of their principal, either personally or by substitution of others, whom they supposed trustworthy, and for whose conduct they were content to be responsi- ble, until it was converted into money ; yet the in- stant it was so converted in their hands, or in those of their agent, it was their duty, after retaining the amount of their commissions, advances and re- sponsibilities, to pay the surplus to the plaintiff, at such port of discharge, if he should require it : and that as their agency was indispensable to enable the plaintiff to avail himself of nis rights, under the contract in question, by becoming parties to it, they expressed their readiness to do, and submitted to the obligation of doing everything in their power, which could l>e reason ably expected from them as factors, to facilitate the arrangement they had acceded to, so as to produce consequences most advantageous to their principal, not impairing their own rights. I In this case the contract was made with, and in the names of the defendants ; the plaintiff must rely upon their agency, or on authority received from them, to enable him to exert any power in con- troling the destination, or obtaining any part of the proceeds of the subject ; if they refused their aid to effect both or either of these Objects, they were unattainable by the plaintiff. I hold that he had a right to exact from the defend- ants this aid, so far as to enable him to receive the surplus of the proceeds of the subject, after satisfy- ing the demands of the defendants at the port of discharge that their refusal to authorize nim to receive such surplus, WHS a violation of their trust, which amounted to full evidence of an intent to convert the whole to their own use, regardless of the interests or instructions of their principal ; and that for such violation they became liable, as in cases where the factor had, contrary to the instruc- tions of his principal, credited, or credited for a longer jxTiod than that limited by such instructions. In l>oth these cas<* it has been held, that the giving such credit is evidence of a disposition by the factor on his own account, and that he is answerable for the amount in his principal, whatever may be the result of such sales. In giving this opinion, I lay out of the ease, as totally inapplicable to its real merits, the various propositions reciprocally made and rejected by the parties; as propositions made bv one party, to which the other was not obliged to accede,' they 390 could not influence a decision on the questions which arose in the cause. The demand made by the plaintiff, in his letters of the 15th, of June, is such a one. as I think he had a right to exact a compliance with, and that the refusal on the part of the de- fendants to comply with it, was, in effect, a derelic- tion of the relation in which they had placed them- selves as factors to the plaintiff, of which he might avail himself, to hold them accountable for the whole subject, by substitution, instead of Gomez, Lopez, and Rivera. As to the third point. All the facts respecting this transaction in Eu- rope, were of a nature incapable of being developed in the course of legal investigation here, till several months after the vessel sailed from New York. The plaintiff's right of action, however, accrued upon the refusal of the defendants to comply with his demand. If we depart from the subject, and do not consider its value as settled by the contract to which the defendants were parties, I know of none to which a resort could be had for the measures of damages ; and I have, since this cause was first pre- sented for my determination, sought it with a con- siderable degree of solicitude, arising from the im- portant consequences of that opinion, as affecting the plaintiffs. I could not, however, satisfy myself, that any other measure could be resorted to on this occasion ; and if the withdrawing the subject from control of the principal, if assuming an absolute and uncontrolled disposition of it, amounted to a conversion of the propertv of the principal by the factors to their own use, the amount of the sales to Gomez, Lopez, and Rivera, deducting the amount of the defendants' demand, appears to me to pre- sent not only a reasonable, but the only rule of damages in this case. I am therefor of opinion that the plaintiff is en- titled to judgment. BENSON, J. The question in this cause is, whether the trust which the defendants took on themselves for the plaintiff was such as that he had a right to demand from them what he did demand, in his let- ter of the 15th of June, 1795. The facts from whicU this right is to arise, are those on^y which preceded the 31st May, inclusive, being the day on wnich the ship sailed, with the cotton and indigo on board. None of the subsequent facts, or matters found by the verdict, have varied or in any manner affected the trust, as it then was, and are, therefore, no fur- ther material or useful to be considered, than as some of them may serve, in the nature of circum- stantial proof, to give a more full and distinct knowledge of the preceding facts. Hence it will IK? perceived, that the question does not depend on the law of principal and factor, as to the rights of the latter to retain. The rules of law on this subject, generally, are acknowledged to be, that the factor has a right to retain the property of the principal until his legal demands against him are paid ; that however small the amount of the demands, and however great the amount of property may be, the factor is not bound to deliver up any parcel of the property, but may retain the whole ; that he hath a right to retain, not only until he shall be re-imbursed such sums as he may nave paid, but also until there shall be deposited with him a sum, competent to answer whatever he may have become liable to pay on account of his principal, as well contingently as absolutely ; and that he is not held to accept of a se- curity of any kind instead of a deposit, nor a de- posit of goods instead of a deposit of money ; but these rules being applicable to cases only where the principal demands the property to be delivered up to him, are inapplicable to the present case, in which the principal, so far from demanding to have the property, or any part of it, delivered up to him, de- mands only a mean to enable him to receive in an- other and distant place, where the same is payable by the vendees of the property, "the sum which may remain after the factors shall have deducted and re- served at their disposal, a sum completely sufficient to cover them for the general balance of their ac- count, however claimed." According to this state- JOHNSON'S CASES, 1 . 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 475 47o*] *It appeared further, that the first -application for the purchase was made to Gouverneur, one of the respondents, in con- sequence of an advertisement in the gazette of 476*] *the 9th March, 1795, stating "600 bales of cotton to be sold by the respondents, good speculation for France;" that when the *bargain was concluded, no persons [*4 7 7 were present, except the purchasers and the appellant, and A. Gomez, Jun. ; that no means were used by the appellant to prevent a free ex- amination *bf the articles; that Gouv- [*478 011 favorable terms, which they offered as a j erneur, one of the respondents, told Lopez and ment of the question, it will also be perceived, that to seek for particular rules, or for adjudications precisely and throughout apposite to it, would be fruitless and unnecessary; and that for a decision on it, there must be a reliance wholly on judgment or discernment, in applying to the case, in its peculiar .and appropriate circumstances, the universal maxim that with the end the means also must be intended to be granted. In this view of the controversy, and of the grounds on which it rests, it necessarily di- vides itself into the following inquiries : 1st. Is the stipulation in the 4th article of the contract, reserv- ing an option to the vendors to receive the whole, or any part of the consideration money for the .goods, in Europe, in preference to leaving it, to be receivable in this country, to be adjudged to have been intended for the interest or benefit of the plaintiff, the principal, instead of being for the in- terest or benefit of the defendants, the factors or substitutes ; or in other words, is the interest or ben- efit of the plaintiff, so to be separated from, or par- amount to, any interest or benefit of the defend- ants, as to be deemed the end to have been intended to be answered by that stipulation 't If so, then, .2*1. Was what the plaintiff demanded from the de- fendants, in his letter to them of the 15th June, 1795, A fit and reasonable mean to that end? With respect to the first of these questions, it would appear to me that a mere statement of it precludes the necessity of proof, or demonstration of the truth of the affirmative ; if the stipulation specified Jn the question, is for the interest or benefit of the defendants, I do not see a reason for not supposing every other stipulation in the contract equally so. I cannot even imagine a rule or test by which the stipulations intended for the interest or benefit of the party principal are to be discriminated from those which were intended for the interest or ben- efit of the party factors ; so that the reasoning, as I view it, to prove that the stipulation under consid- eration was for the interest or benefit of the def end- suits, must terminate in a conclusion that the whole contract was intended for their interest and benefit. The sale of the goods, the persons to whom, and the terms on which they were sold, were by the "ex- press direction" of the plaintiff; the defendants ac- cept of, and submit to the direction ; they are mere | instruments to effect what he had determined was i for his own, not for their, interest and benefit. The .sale was of the residue of the cargo of the ship Cleo- patra, received by the defendants, to be sold on ac- count of the plaintiff ; had the defendants a differ- ent or a greater interest or benefit in the last sale than they had in the preceding sales ? In their ac- counts their commissions are the only interest or benefit they claim. On a calculation of whose profit or advantage is it to be, to elect having the consid- eration money for the goods made payable in Eu- rope, instead of leaving it to be payable in this country? Was it to be on a calculation of profit or .advantage to the defendants? To whose use was the premium, or in effect, additional price, of five per cent, on the goods to be, in the event of the option to receive the money in Europe, to the use of the defendants or to the use of the plaintiff. Most cer- tainly to the use of the latter ; and that considera- tion alone appears to me to furnish an argument de- cisive on the point. I will only add, that the truth of the proposition, that the sale in question, and every term and condition of it, is to be considered *& intended for the interest or benefit of the plaint- iff, primary to, and exclusive of, any interest or ben- efit to the defendants, except their commissions, is .so evident, to my mind, that it is not without diffi- culty that I can persuade myself that I have rightly understood the defendants' counsel, when I suppose they meant to contend for anything different from or contrary to it. With respect to the second question also, I think the truth is not less obvious, and that it ought al- most to suffice, merely to state, that to suppose the right to elect to have the money receivable in Europe should be reserved for the interest or benefit of the plaintiff, and consequently, that the defendants were bound, in virtue of their trust, to exert this right for JOHNSON'S CASES, 1. him, whenever he should require them, and that they should, at the same time, nave a right to refuse to enable him to receive the balance there, but to withhold it from him, until, after having been re- ceived there by them, or their agent, it should be remitted to this country, is to suppose two rights in one and the same subject, claimed by opposite par- ties against each other, and which can never be made to consist together. Where was the inconvenience or grievance of which the defendants could com- plain, if the}' were to be held to pay the plaintiff his balance in Europe ? The business of receiving the money from the vendees of the goods, of making out and settling the account with the plaintiff, and paying him the balance, could have been done by an agent ; not so conveniently to the defendants, it may be admitted, as if done in this country ; but was the inconvenience of doing these acts by another instead of themselves, or abroad, at a seaport in Europe, instead of at home, such as the law must intend the hazard of it not to have been within the trust or agency? Surely the law must intend the reverse. Waiving, however, the general intendment of law, it might still be asked, what would be the particular intendment in this case, from the express, and as it were, special provision in the contract, that the money, if the option should be to receive it abroad, should be payable also to the agents of the defend- ants ? The objections to the demand of the plaintiff for an authorization to receive his balance in Eu- rope, as declared by the defendants themselves in their letter, in answer to the demand, are, "that they were not obliged to receive payment in France, es- pecially at a time when so many difficulties attend- ed getting money from that country, and that if they were to accede to the terms held out by the plaintiff, they would be obliged to wait the event of an application for the money to the vendees of the goods, before they could have recourse to the plaint- iff for the payment of their account." I have already expressed my opinion, that the plaintiff had a right to demand from the defendants to declare an option to receive the money in Europe ; and it is only requisite further to state, that this right of the plaintiff could never depend on a greater or less degree of difficulty, if any, to the defendants, in getting their portion of the money, their commis- sions and disbursements, from that country; and further, that if the defendants had at any time brought a suit against the plaintiff, or, as they have expressed it, "had recourse to him, or applied to him in a judicial way," for the payment of their demand, it is not possible that he could have availed himself of the authorization from them to receive his bal- ance in Europe, to any possible purpose of defence whatever. Let the fact that the defendants had furnished him with the authorization, and on the terms as contained in his letter, be put in the form of a plea, and it will instantly be discovered to be scarcely better than a nullity. The remaining question is, as to the rule by which the jury have assessed the damages, and which, from the record, appears to have been "the amount agreed on by the contract, as the price of the cotton and indigo." Damages, whether the assessment of them is by the court, as their immediate act, or by refer- ence to a jury, are to be according to definite rules ; but where there can be no definite rule in the case, as, for instance, where exemplary or implied dam- ages would be warranted, still the assessment is not to be wholly without rule ; it is to be according to legal discretion or arbitrament. The case of a re- turned protested bill of exchange, is a case of a defi- nite rule ; the damages are to be 20 per cent, on the amount of the bill, with interest from the time of the notice of the protest, without any inquiry, and, consequently, without any addition or diminution, in consideration that the plaintiff has or has not sus- tained more or less, or any special, or, indeed, any actual damage whatever. Suits in trover and in trespass for carrying away goods, are also so far cases of definite rule, as that the damages are to be at least the value of the goods at the time of the conversion or trespass, or in other words, at the time when the right of action accrued, without regard to 391 478 COURT OF ERRORS, STATE OP NEW YORK. 1800 Rivera that the cotton was from the Isle of France, of the description of Aumude 479*] *cotton, producing a sample, and ask- ing for it three shillings or three shillings and sixpence a pound, with the advantage of the drawback; that Rivera informed his partner, 48O*] *Gomez, of the result, and showed him the sample; that Gouverneur told them that there was a quantity of indigo which must go with the cotton, and showed samples, demand- ing *eighteen shillings a pound; the [*481 indigo was stated to be of the Isle of France- Gomez said that he understood that Amoude cotton was the same as Surat. but that he had any subsequent deterioration, however casual. I state at least the value of the goods, for the dam- ages may be made to exceed that amount, where the withholding or taking the goods was aggravatedJy injurious. The case now before the court is within the reason, and, therefore, within the rule, in the cases of trover and trespass. I have already men- tioned such of the rights of the factor as can have any relation to the questions between the present parties. I now briefly state his duty generally to be, that he is to follow the orders of his principal, and for a breach of the orders he is to answer in dam- ages to his principal ; if the breach is merely partial, and as to certain parcels or particulars only, he shall not be held to answer further than as to such parcels or particulars ; but if the breach is such as to involve the whole of the property entrusted to him. he shall then be held to answer for the value of the whole" of the property, and as such value was, at the time the breach of orders took place ^ and if the property consisted in credits, to answer to the amount or the credits, and the principal may from that moment abandon to him the whole of the property. Whenever the principal, in order to a suit against the factor for not delivering up the prop- erty when ordered or required, tenders a sum for commissions and other demands, the principal tenders, and the factor refuses at their peril re- spectively; for if it should appear that the sum tendered was sufficient, the principal will recover the value of the property at the time of the tender; and the rule was the same whenever the factor re- fuses to do an act which the principal was entitled to demand, and which effects the whole of the property of the principal. If such are the duties of the factor, and if such is the measure? of the dam- ages or retribution to the principal for his injury, where these duties have been violated or departed from, the conclusion, that the damages were duly assessed in the present suit, is obvious. I conclude with remarking, that the controversy between the parties may be satisfactorily resolved in this as its cause, that the defendants have ac- cepted an agency, and bound themselves to execute it in a foreign country, if their principal should at any time elect it, as most for his benefit, without previously calculating and providing for their own profit and security, if it should then come in com- petition with his: and that afterwards, when too late, under apprehensions, either mistaken or founded, and as to the justness of the remark, it is immaterial which, of danger or disadvantage of some kind, they refuse to execute it, unless they can have every benefit both of profit or security, and even convenience, equally as if they were to execute it at home. My opinion accordingly is, that the plaintiff is en- titled to judgment. HOBART, J,, declared himself to be of the same opinion. YATES, Ch. J., and LEWIS, J., dissented. Judgment for the plaintiff. On this judgment, the defendants brought a writ of error into the Court for the Correction of Errors, and it was there contended, on the part of the de- fendants, that the judgment ought to be reversed, for the following reasons: 1. Because no good cause of action is stated in the plaintiff's declaration, the principal averment of which is directly contrary to a written contract under seal, and most probably, contrary to the sense and meaning of the parties to the suit. The aver- ment alluded to is, that the right to receive pay- ment in Europe, out of the proceeds, was intended for the special benefit of the plaintiff. It is an es- tablished rule of law, that no averment shall be ad- mitted, to contradict a deed under seal. 2. Because the jury have not found that this right was for the special benefit of the plaintiff. The court, therefore, cannot presume that this was the case, especially as it is opposed to another part of 392 I the verdict, which states, that the contract, as itap- i pears by the record, was made by the intervention I and express consent and direction of the plaintiff; ! and being an averment essential to the plaintiff's recovery, it ought to have been proved as any other 1 fact, and might have been proved as such, it it had j really been the case, by producing an agreement in i writing for that purpose from the defendants. 3. Because it is repugnant to every rule of con- struction, to admit any interpretation of a written contract, directly opposed to the letter of it. To i receive the money in Europe, might have been a principal inducement to the defendants' lending '' their names to this transaction. Whether it was so- | or not, it is sufficient to say, that by the terms of ! the contract, they are to have the election, and they ; are to appoint an agent to receive the money. 4. Because no good consideration is stated for the ; promise alleged to be made by the defendants in the first count of the declaration. It is said that it was- | their " duty to pursue the direction and request of the plaintiff, touching the exercise of this right," ; and that in consideration of this duty, they agree so- ; to do. The consideration here stated, is subsequent to the sale, and precludes every idea of an antece- dent agreement, on the part of the defendants, to- pursue such direction and request; such agreement is not even pretended to exist. To determine that it was their duty so to do, the court must first get rid of the contract, which, so far from imposing it as a duty on them, left it at their option to make the election, or not, as they pleased, and left to them I alone, and not to the plaintiff, the' choice of an i agent. The words of the contract are, "they may,. 1 at their option, receive," &c. I 5. Because the declaration is altogether uncer- i tain and contradictory. In one part it avers that- i the right to receive the proceeds in Europe was for i the advantage of the plaintiff, subject only to the ! lien and right of the defendants, to have and re-- ceive the general balance of their account, and to be ! secured for such other claims and demands as they i might and should be entitled to and have, by reason j of their agency for the plaintiff. Thus admitting,. I without any qualification, and in its fullest lati- | tude, the lien for which the defendants contend, i But by another averment it is stated that the- 1 defendants were bound to give him an authority to- | receive these proceeds, after certain reservations- i and deductions, that is, as he explains it, after ! leaving in the hands of Gomez, Lopez, and Rivera, a sum sufficient to satisfy the defendants for their general balance and claims. Which two averments- are directly repugnant to each other, the one " the ot" lien. admitting, and tne other destroying every idea of a 6. The declaration is uncertain in another respect, and, therefore, also bad. The plaintiff avers that he requested the defendants to elect to receive the proceeds of the property, or so much as would be due to him, after certain reservations and deductions. But it does not appear what was the amount of those reservations and deductions ; on the contrary, it results from the verdict, that these very sums- were matters in dispute between the parties. It became, therefore, impossible to give the authority in the way it was demanded. 7. The declaration is defective in another respect : the action being brought for a refusal to give the plaintiff a power to receive the price of the cotton and indigo in Europe, after certain reservations, it was necessary to aver, as the very gist of the action, that the property was sold in Europe. This aver- ment is neither found in the declaration, nor is tin- want of it supplied by any part of the verdict: and unless such sale took place, the power became nugatory, and no damage could ensue from a ref usa I to give it. 8. The declaration is also bad, because all the inferences and deductions made by the plaintiff in the first count, an- contrary to the known and established laws which govern relations between principals and factors. 9. But if the plaintiff's construction of the con- tract be just ; if the right to receive the proceeds in JOHNSON'S CAPES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 482 482*] *no personal knowledge of the article, I prices to be as mentioned by Gouverneur; that and relied on the representation of Gouverneur, ! *the cotton was delivered from the [*484 one of the respondents, who assured him ! store of the respondents, where it was weighed that the indigo would probably sell in France ! and might have been examined. 483*] *for three dollars, and the cotton for | Several witnesses testified that Amoude was one dollar a pound; that A. Gomez showed a i the best *Surat cotton, and the differ- [*48> price current from France, which stated the [ ence between it and that of the Isle of France Europe was reserved for his special benefit, it does not at all weaken the defendants' defence ; because, us factors, they had a valid lien, or a right to hold all the notes and securities of the plaintiff in their hands, and also to keep at their control and dis- posal the price of the goods, until actually received by them or their agent, not only as a security for the general balance due to them, but for all their incidental charges and advances, and also for their indemnification against all engagements and responsibilities which they had come under on the plaintiff's account. They had also in virtue of this lien, a right to refuse the plaintiff possession of any of the papers, and every facility towards obtaining his money, until it was actually received by them, or their agent, in Europe, or until they were paid their advances, and satisfactorily indemnified against every claim, however contingent or re- mote. The doctrine of the court below was, that they had a right to insist on actual payment, not only for their balance, but for every eventual engagement whatsoever. The following is a summary of the advances and responsibilities of Messrs. Gouverneur & Kemble, on the 15th June, 1795 : 1. Mr. Le Guen owed them a balance of - 4,795 6 3 2. They had executed a bond to the United States, for the landing of cotton and indigo abroad, in the penalty of ------ 4,834 15 3. They had executed two bonds to guarantee the payment of the freight, the two penalties of which were, in our currency - 8,141 4. They were bound for the true per- formance of their covenants with Gomez, Lopez and Rivera, in the penalty of - . - - - 8,000 5. They had paid for insurance - - 2,946 16 Total -28,717 17 3 10. Because the defendants' lieu, if any they had, which is admitted by the declaration, extended to the whole subject, not to a portion or residue of it, as it is pretended ; and, therefore, they were not bound to listen to any proposal, however plausible, which in the smallest degree impaired their security. A lien is defined to be, "That hold or tie which a man has upon goods, or other things in his custody, or on the price of goods in the hands of buyers, and by which he has a right to retain them until he is paid what is due to him, and also the sums for which he may have become surety for his principal." This is the only true and natural definition of a lien ; a lien in the qualified and restrictive sense of the plaintiff, was never heard of until this suit. If a single au- thority, out of any book whatever, can be produced in support of this novel and unheard of doctrine, the defendants will abandon this ground of their de- fence, as desperate and untenable. The Supreme Court in this cause, admitted that a factor may retain for his disbursements and re- sponsibilities entered into on account of his princi- pal ; and the plaintiff admits, that by his proposal of the loth June, it was implied, that the defendants should be paid and indemnified, as a condition on which only he was to receive the authorization re- quired. It is also contrary to the understanding of the plaintiff, as expressed in his letters. 11. If the defendants had this lien, they say they were not bound to accede to any one of the offers of the plaintiff. These offers will be examined at large in the argument on their part, and it will t>e shown, that every one of them went to the total destruction of their lien as factors. 12. But if the defendants' lien was only of the par- tial kind admitted in one part of the plaintiff's dec- laration, they contend that all his offers were inad- missible, as any one, if acceded to, would have put it in the plaintiff's power to have defeated the op- eration of it altogether, even within the limits he admitted it to exist. JOHNSON'S CASES, 1. 13. The defendants maintain that there is nothing in this transaction which differs it from the common cases of principals and factors. If any clauses were inserted in this contract of sale for the benefit of the principal, is not this the case in every sale by a fac- tor? Have not all such sales in view, as a primary object, the principal's benefit? But was it ever be- fore heard, that the particular terms of the sale, or the mode or place of payment, controlled the lien of the factor who negotiated it ? Suppose the plaint- iff had wished to receive his money in Lapland or Peru, would it not be absurd to say that the defend- ants would also be bound to follow the purchasers to those countries? Would it not, on the contrary, be a strong reason for their insisting on payment here, before they gave their principal any authority to receive what was coming to him abroad. The truth is, the terms of a contract between a factor and purchaser have nothing to do with the rights of the former as against the principal. Innumerable and various as such contracts must have been in this- country and in Europe, such a proposition was never heard of before. Here again the defendants require but one solitary legal authority in support of this doctrine, and they will give up the controversy. A lien is a right so attached to and inherent in a fac- tor, as to be paramount to every claim of his prin- cipal. It is a right conferred on him by law, not depending on the will of the principal. No agree- ment is necessary to give it efficacy, no mode in which the principal may choose to vend his goods, no way in which he may fix the payment, no country to which the purchasers may be going, no nation of whicn the principal may be a citizen, no inconven- ience to which he may be exposed, no terms for his benefit which may be ingrafted into the contract of sale, can alter, diminish, or destroy those rights to which his factor becomes entitled, according to the usage of trade, the moment he steps forward in that capacity to assist in or lend his name to the sale. Doubts and perplexities, incessant and end- less as the nature of contracts, would result from a contrary doctrine, in the place of that simple mid uniform rule which now prevails. At present, every merchant knows he has a lien or hold on the goods of his employer, for the balance of his account and his collateral undertakings. It matters not whether he is directed to take notes payable at Havre de Grace, or at the bank of New York ; his lien in either case is precisely the same. In the former case, in- deed, the lien of an American factor should be more highly favored and protected, because his risk, where payment is to be madeabroad. is considerably enhanced. 14. But if the defendants were bound to receive payment in Europe, and to pursue the purchasers thither, they contend that their lien extended to the whole price of the goods in that country, and that they were not bound to give a power to the plaint- iff to receive any part of these proceeds until they were actually received by an agent of their appoint- ing, in whose hands they might make the reserva- tions and deductions which the plaintiff allows they were entitled to. 15. If the defendants had no lien whatever, they were not bound to give the plaintiff the authority he demanded, without an indemnity,which has never been offered. 1st. Because the contract, being in the name of the defendants, and containing a heavy penalty, no suit could be brought upon it, but in their name : if, then, they had given the plaintiff the authority he. asked, and when he asked it, and he had abused it. they might have exposed themselves to the penalty of the contract, or at least to an action of covenant for damages. That he might have abused it, appears from what is stated to be the custom of Normandy. 2d. They were not bound to give the authority until a sale, because the property, being warranted American, and the plaintiff being a French citizen. such authority, in wise of discovery, would have ex- posed the cargo to capture and condemnation, and thus have vitiated the policies which, in case of loss, were the defendants' only security. If by such an act the defendants had exposed the cargo, the pur- m 485 COURT OK ERRORS, STATE OF NEW YORK. 1800 too striking to be mistaken; ami that the external appearance of the bales showed it to 48>*] be Surat*cotton, and that some of them were opened. There was various other evi- dence, in corroboration of what, is here stated, which it is unnecessary to detail. 4-87*] *Three questions were raised by the counsel for the appellant, for the consideration of the court. 1. Whether, inasmuch as previous to the trial at law, *between the appellant and re- [*488 spondents, they had full notice of the pretended fraud, by the bill exhibited by Gomez and Ri- vera, they were not bound, if they meant to chasers also would have had a claim on them for damages. 16. The plaintiff ought not to recover, because, if the defendants have been guilty of a neglect or breach of duty, the plaintiff sustained no injury, and, therefore, is not entitled to any damages. The jury refer it to the court to say, whether the defend- ants have made themselves liable to pay the amount agreed on by the contract, as the price of the prop- erty. This sufficiently shows, whatever arguments maybe urged to the contrary, what rule the jury observed in assessing the damages, and precludes every idea of any special injury. From the whole verdict, it manifestly appears that none was proved or sustained. Every action on the case, ex contractv, is brought to recover a ''pecuniary satisfaction for the damage sustained." It does not follow, that an injury is the necessary consequence of every misconduct in a factor. Cases can and will be put, in the course of the argument, to illustrate this position, and even to show that a principal may sometimes be benefit- ed by a palpable breach of orders in the factor ; in which case, it would be absurd to say that the latter should make him any compensation. That in an action on the case, grounded on contract, the plaint- iff is entitled to a compensation commensurate only with the damage actually sustained, is one of those self-evident legal axioms, which almost precludes the possibility of demonstration; cases, nowever, numerous, and in point, will be produced. The following are the words of Sir William Black- stone on this subiect : "A promise is in the nature of a verbal covenant, i and wants nothing but the solemnity of writing and i sealing to* make it absolutely the sarne. If, there- i fore, it be to do any explicit act, it is an express I contract as much as any covenant, and the breach | of it is an equal injury. The remedy, indeed, is not ! exactly the same, since, instead of an action of cove- j nant, there only lies an action upon the case, for I what is called the undertaking of the defendant; | the failure of performing which, is the wrong or ' injury done to the plaintiff, the damages whereof a j jury are to estimate and settle. As if a builder ; promises to build a house, and fails, the party has an action on the case against the builder for this ; breach of his express promise, and shall recover a pecuniary satisfaction for the injury sustained by the delay." (3d vol., p. 157.) "Every one who undertakes any office, employ- ; ment, trust or duty, contracts with those who era- i pjoy or entrust him to perform it with integrity, j diligence and skill, and if by his want of either of those qualities, any injury accrues to indi- viduals, they have, therefore, their remedy in ' damages, by a special action on the case. If an offi- i cer or the public is guilty of neglect of duty, or a ! palpable breach of it, as if the sheriff does not exe- eute a writ, or willingly makes a false return* in both i cases, the party aggrieved shall have an action on j the case, for damages to be assessed by a jury. If a i sheriff suffers a prisoner, during the pendency of a suit, to escape, he is liable to an action on the case. An attorney who betrays the cause of his client, by ' which it miscarries, is liable to an action on the case i for a reparation to bis injured client." (p. 363.) In actions of covenant, in which he has likened a : special action on the case, the same author remarks, the proceedings set forth with precision, the cove- ! nant, the breach and the loss which has happened thereby, whereupon the jury will give damages in < proportion to the injury sustained by the plaintiff, ; and occasioned by such breach of the defendant's contract." (p. 150.) Professor Wooddeson also, in his view of the law, ' declares that such actions are for the breach of a : promise, "to recover pecuniary satisfaction for the damage thereby sustained." If the court can bring "thejnselves to believe, contrary to the whole tenor of the verdict, that the plaintiff has sustained dam- age by our negligence or default in not giving him a power to receive the proceeds of certain property in Europe, which certainly, if they ever existed, fell far short of the amount of the notes ; if, we say, the court can possibly bring themselves to believe that the defendants are liable, and that the plaintiff has actuall3' suffered damage to the amount of the notes, then and then only can they affirm this judgment their undertaking being, as stated on record, and as implied by law, not to pay a certain specific sum, but the damages which may have accrued to their employer by their default, with which damages the amount of the notes has no connection. Even in actions on the case for a deceit, although ever so gross a fraud be practiced, it is necessary that some injury be sustained, or no action will lie ; the rule in this case being, and it has been settled for centuries past, in England, that " fraud, without damage, gives no cause of action." In such cases, says Wooddeson, "it is necessary to remember that the ground of complaint be, that there be actual detriment injuriously sustained." If this be the case, in actions where fraud has been practiced, how much more strongly does the rule apply in actions on the case, where misconduct or negligence only, and no fraud, is alleged ; where difference of opin- ion on a point of duty, but no willful deception, has occasioned a controversy between the parlies. 17. Because the rule of damage contended for in the present case is directly opposed to the plaintiff's declaration. The action is brought for the defendants' refusal to give an authority to the plaintiff to receive " the proceeds " of certain prop- erty in Europe, after certain deductions. He then avers, and which averment was material, that after such deduction, there would remain due to him a large sum of money. But why make the averment, if the defendants became responsible to pay the whole amount of the notes, the moment they re- fused this authority, whether the property was ever sold in Europe or not? For the decision of the Supreme Court warrants the strange principle, that the defendants would have been liable for this enormous sum, even if the property had been sunk or captured, the moment it left the wharf ; in which case, it is evident that the plaintiff would have been injured by crossing the ocean in quest of a prop- erty which, as to him, no longer existed. On a close examination of the special verdict, and the evidence stated in it, nothing appeared to enable the court to judge whether the property was sunk at sea, burnt in port, or sold at the best market in Europe ; they refused to admit evidence to enlighten them on this point. If the vessel had sunk the day after she left New York, which may have been the case, for aught that appears to the contrary, the plaintiff's security was in his policy of insurance, which it was agreed should be made for that express purpose ; but the decision of the court inverts this rule: their language is, that whether the property was sunk, burnt, or sold at a high price, in all events, the plaintiff is to be paid the whole amount by the defendants, and they are to look to the purchasers and underwriters for their re-imbursement. 18. Because, this being an action on the case, for a misconduct in the defendants, as factors, it would be no bar to a new suit against them for money had and received, when the price of this property is recovered, if ever that be the case, from the pur- chasers. The plaintiff's counsel have taken care, therefore, to let it appear by the verdict that no evidence was given in the present action on the count for money had and received ; thus, after pay- ing 50,000 to a man who has not been injured by their act a single cent, they may hereafter be com- pelled, in an action which is now pending against them by the plaintiff in the Supreme Court, to refund to him the sum which may be actually received by them from the purchasers. The sum recovered in this action must be as a compensation for the special damage sustained by the agent's default, which cannot deprive the principal of his right to receive the real amount of sales of his property, or the whole sum, if they are able to pay, on the notes of the purchasers ; nay, nothing can prevent his compelling the agents to surrender him those notes for prosecution, either before or after the termination of this suit. JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 489 489*] *avail themselves of that defence, to do it upon that trial, and, consequently, whether they were not precluded from urging it to impeach the judgment against them. 49O*] *2. If not precluded, whether, from the nature of the testimony in the cause, it was proper that there should be an issue to be tried by a jury. 491*] *3. Whether this court, being regu- larly in possession of the cause, with all the evidence, will not decide the whole contro- versy between the parties. Messrs. Hamilton, llarvton, and Burr, for the appellant. Messr*. B. Livingston, Troup, and Gowoerneiir Morris, for the respondents. RADCLIFF, J. The appellant in this cause formerly recovered a judgment in the Supreme Such strange inconsistencies will ever be the con- sequence of a departure from plain and known rules. 19. To place in a more striking: view the illegality of the judgment, as it respects the damages, let us again recur to the nature of the action. It is brought for an injury the plaintiff is presumed to have received by the refusal to grant him a certain authority. Hence, if he had been injured at all, he ought to have recovered something as damages, over and above, and independent of the price of the property, because the price he was always entitled to, when it came into the hands of the defendants, whether they had been guilty of a misconduct or not ; so that, if this judgment is to conclude the parties, and Gomez, Lopez, and Rivera were soly- ent, the defendants pay no damages at all for their misconduct, and the plaintiff is compelled by their act to receive his money in this country, without even the five per cent, premium, or any other equivalent for the disadvantage which is imposed upon him by the defendants. This shows both that the judgment is not conclusive between the parties, and that factors, by substituting themselves as pay- masters, can always compel the principal to receive his money where they reside, without any compen- sation for their misconduct, although it be expressly agreed that he shall receive it elsewhere. 30. The only cases in which a factor can be liable for the whole price of the goods, are, where he has sold contrary to his instructions, or where he has received the whole property, or it has been lost by his default, such as releasing the debt to the pur- chasers, or neglecting to prosecute for it when due ; but even here, he would be permitted to go into circumstances, to induce the jury to give other and less damages. At any rate, the factor would be . liable for the real value of the goods only, not for any nominal or ideal value at which they might have sold on credit, or by deception. In the present case, it is not pretended that any part of the prop- erty or its price has been lost by our default, but only that the plaintiff has been injured by not receiving the proceeds of 4t, after certain reservations, in Europe. Suppose these proceeds, after the reserva- tions mentioned, had only amounted to $100, and it will be shown, presently, that they did not amount even to that sum, will this court say that it is possible any man, by refusing to give another a power to receive $100 in Europe, could injure the latter to the amount of 50,000, or sub- stitute himself to the person who was to pay that sum ? This would be saying, in other words, that 40 in Europe are worth 50,000 in this country. This would be turning a special action on the case into a penal one ; it would be inflicting a fine by way of punishment on the defendants, instead of com- pensating the plaintiff for the real injury which he might have received. The truth is, it matters not in what country money is to be paid ; the party failing, wherever he be sued, must pay the sum only with interest. Bills of exchange alone form an exception. 31. It was said on the trial, that the default of the defendants extended to the whole subject, and that, therefore, there could be no other criterion of damages than the whole property. This is not just, as an argument. In point of fact it is untrue, and directly against the record. It is not correct reasoning, because a default may often take place as to the whole subject, and yet the factor not be liable for the whole sum. If an insurance broker is directed to make insurance on property for $100,- 000, and neglect so to do, he is certainly responsible, but for what ? If the vessel arrived safe, he would be liable for nothing ; if lost, he would be liable only for the actual value of the property. Other cases will be mentioned in the argument. But it is untrue, in point of fact, that the default here, extended to the whole subject. The defend- ants are sued for not giving the plaintiff an authority JOHNSON'S CASES, 1. to receive in Europe the proceeds of the cargo, after keeping at their disposal a sum sufficient to pay and guarantee them against certain claims. To these proceeds, then, after the reservation, and no farther, did the default extend. Admitting, however, for a moment, that the agents in this case became liable for the whole amount of the subject. By the subject must be meant that precise object, to which the authoriza- tion related. What was that ? The authority de- manded was, "to receive whatever sum shall remain of the goods sold," after deducting certain sums. The defendants refuse this authority. What, then, is the subject ? Certainly the proceeds in Europe, and not the amount of the notes. Nevertheless, the court did not require the plaintiff, and refused to permit the defendants to prove what the amount of those proceeds were. To show that this argument is correct, let us suppose that the authorization had been given ; the defendant admits that in such case he could only have been entitled to receive by it in Europe the balance of the pro- ceeds, after deducting certain sums. Withholding the authorization was, therefore, in effect only withholding that balance, whatever it was. Hence it is clear, that to receive the balance of the pro- ceeds in Europe, was the subject of the demand, and the refusal. This was the subject of the con- troversy, and the subject for which the defendants were liable, if for anything. What the amount was, does not appear. It will be remembered, that the defendants offered, but were not permitted to show it; a tolerable estimate, however, may be formed. Gomez, when at Hamburgh, expected to lose sixty per cent. All agree that the markets were bad, .and the speculation ruinous. Deduct sixty per cent, from 48,966, the price of the cotton and indigo, and there will remain, rejecting fractions, only 18,588. The defendants' advances and liabilities on the 15th June, 1795, were 38,718 17s. 3d. Thus, then, the pro- ceeds, if any there were, fell short of what the plaintiff was willing to leave at our disposal, the sum of 10,131 17s. 3d. Where, then, were the moneys which the plaintiff was to have received? How is the defendants' default as to the whole sul>- ject made out, when it applied, if at all, to an object which had no existence ? 33. It was also contended on the trial, that the price of the property being fixed and ascertained. every other measure of damage was uncertain, and liable to difficulty. But are not damages uncertain in their very nature? Why is a jury summoned, i but to render them certain? Is not this the case in I actions of covenant, trover, detinue, slander, assault I and battery, and in every special action on the case? ! If in all these, damages are uncertain, why should a certain measure never before heard of.be applied to I this case ? Even if the factors had sold of their own head, the price of the property would not form a certain measure of damage. It might not be worth I as much as it sold for, and other circumstances of i mitigation would be listened to. How comes it, I that the plaintiff's counsel have not stated in his | declaration, that by reason of their default, the de- ' fendants "became liable, and assumed to pay to the I plaintiff the amount of the notes?" The truth is, ! that such an extravagant idea never occurred to I them. With all their talents, they did not dare to i hazard a declaration in such form ; and yet such a i declaration would have been good, or this judgment ! must be bad. Notwithstanding all this pretended uncertainty, i which is always more or less the case, never did an ! easier or more familiar measure for ascertaining I damages present itself than in this ease. The de- fendants refuse to give the plaintiff an order to re- ; ceive the proceeds of certain property in Europe. ! Where, then, lies the difficulty of ascertaining their i amount ? They either do, or do not exist : if they ; do not, there could be no injury : if they did, their 491 COURT OF ERRORS, STATK OF NEAV YORK. 1800 Court against the respondents, which, on a writ of error, was here affirmed. Since that period, the respondents have filed a bill in chancery, alleging a fraud in the contract for the sale of certain parcels of cotton and indigo, for the amount or value of which they were held liable by that judgment, and they claim relief on the ground of this fraud. It is tin- necessary to be more particular in stating the different proceedings on this much litigated controversy, as they are fully in the possession of the court. It will be sufficient to premise, that the present appeal is from an order of the chancellor, by which it was decreed that the amount might easily be known ; the defendants offered to ascertain it. This sum, with interest, after large deductions, should have been the utmost extent of the recovery. 23. From the reasoning in the last article, it also appears that the Supreme Court did wrong in reject- ing the testimony offered by the defendants, to show that there was no special damage. In actions on the case, every circumstance which can assist the jury in forming' an estimate of the extent and nature of the injury, ought to be admitted. The action is with propriety termed a special action on the case; that is, the defendant is to recover ac- cording to all the circumstances of his case. If the wrong be complains of has been attended with any injury, he recovers accordingly : if not, he recovers nothing, or only nominal damages. Thus in actions on the case, for escapes against sheriffs, and for misconduct in attorneys, they are not bound, the sheriffs, to pay the whole sum due to the plaintiff in the original suit, nor the attorney, the whole sum due to the client. This will be exemplified by sev- eral strong cases. The court, on such occasions, after the default is established, permit the defendant to prove every circumstance which may tend to .show either that the party has not been injured, or to an inconsiderable degree. Yet all this was denied TO the defendants here : They are able, if permitted, and would have proved, if their evidence had not been overruled, most conclusively, that their re- fusal to give the power in question, had not only worked no injury to the plaintiff, but had proved beneficial to him. 24. Because, by rejecting the testimony, which is made the ground of the bill of exceptions, the court precluded the defendants as factors from every de- fence, which the purchasers themselves might have availed themselves of. A man is not always held tq pay the price agreed upon : Thus the purchasers may, and no doubt will, in the action brought against them on their notes, endeavour to prove, in avoidance of the contract altogether, that they were grossly deceived and imposed upon in the purchase of this cotton and indigo ; that they were warranted of qualities very different from the truth. If they make out this proof, nothing is clearer than that they will be relieved against the payment of these notes : or that they will have only to pay the real value of the property. How iniquitous, then, may be the result? Gomez, Lopez and Rivera may have a verdict against the factors, on the ground of fraud or deception, and yet the latter may be compelled to pay the whole amount. If in both cases there be special verdicts, it is to be hoped they will be pub- lished together ; they will reflect singular credit on the judicial annals of this country. If any fraud was practised, as is contended by the purchasers, it was by the plaintiff himself, who negotiated the sale ; and yet. as the notes are in the names of the defendants, the relief will be; against them : Thus may innocent factors be punished for the fraud of their principal. The case of a horso which was sold for a barley corn a nail, doubling every nail, is well known ; the animal, at that rate, came to 500 quarters of barley ; the jury, however, ga%'e only eight pounds, which was his real value. Yet if the sale had been made by the intervention of a factor, and ho committed a single mistake or default, he must pay the contract price, however exorbitant or unconscionable that may be. Thus, if the plaintiff had sold a single horse for as much as he was to have had for the cotton and indigo, no one can doubt but that the purchaser would have been relieved against so hard a bargain. Vet if the proceeds of the horse were to be paid in Europe, and his agent should refuse him an order to receive the proceeds, which in all probability would not exceed 100 guineas, nothing could exempt him, if this judgment be affirmed, from paying to his principal the last farthing of the contract price. For aught that appears, the; purchase of the cotton and indigo was almost as hard a bargain. To lose HO,000, as may fairly be inferred from the verdict, the purchasers did, WHS no trifle. 25. There is no evidence, nor is th fact found, 396 that "after certain deductions and reservations, there would remain due to the plaintiff, for the res- idue of the amount of the said notes a large sum of money," which is another material averment in his declaration, and ought to have been proved. It i true, that it is stated there would be due a residue on the amount of the notes ; but this, like several other allegations in the declaration, is inaccurate. The purchasers being only bound, as appears from the contract, to pay the notes as far as the proceeds extended, the plaintiff could not demand, nor the defendants give a power to receive any moneys be- yond the amount of these proceeds. It should, therefore, have been stated, that "there would remain due to the plaintiff in Europe, for the residue of the proceeds of the said cotton and indigo, a large sum," &c.; of this, there was no proof. 26. The consideration stated in every declaration, ought to be some certain act, matter or thing, by which the defendant may be benefited, or the plaint- iff incur some trouble or inconvenience, that is, either a damage to the plaintiff, or an advantage to the defendant. The declaration ought also to aver, that the plaintiff has on his part fulfilled the terms- on which the promise was made, or that he has offered to fulfil them, and shown that readiness and willingness to do it, which the law requires. Ta apply this law ; the consideration stated in the pres- ent declaration, is, that the defendants were to be allowed "a commission of 2J per cent, upon the amount of the sales, and such other commission as the course of tlnjir agency and the usage of trade , might entitle them to." But in no part of the I declaration is it averred, that this commission was- paid or tendered to them, although it is evident from the declaration itself, that this payment was considered by the plaintiff as a condition precedent to his receiving the authority in question; nor is there any proof to supply the want of this essential averment. 27. Another very material and essential part of the plaintiff's declaration is not only without proof, but the testimony and finding of the jury complete- ly and entirely disprove it. The declaration states, that the plaintiff requested the defendants, "to elect to receive the amount of the notes, or, at their option, so much as would be due to him, after de- ducting and reserving thereout certain sums at Havre de Grace, or at any other port in Europe, where the ship should discharge, out of the proceeds of the property; and after such deduction and ! reservation made, to give him power and authority ' to receive from the purchasers the residue of the said notes out of the proceeds." It might be in- ferred from this, that no authority to receive the residue was required until after this election was made, and Gomez, Lopez and Rivera had actually paid to the defendants, or to their agent, the j moneys which were to be thus deducted and re- ! served. The correspondence between the parties, I all the proposals of the plaintiff, the finding of the jury, and the several times of making his demand of I the authority in question, evidently show, that the I reservation to be made was not out of the proceed* | when actually paid to the agent of the defendants, | but that this sum, which, by the bye, was never i ascertained between the parties, was to be left in the hands of the purchasers, subject to the order of the defendants. The plaintiff's first request is to "have an author- isation to receive in France, the amount of the en- gagements of the purchasers," without any reser- vation whatever to the defendants. He next demands an authenticated copy of the contract, with an authority to receive, after payment of the freight, 100,000 dollars. It would have been fortu- nate for all parties, if the property had only pro- duced half of this sum. He lastly demands an authenticated copy of the contract, with a complete authorization to receive whatever sum shall remain of the proceeds of the goods (not of the amount of the notes, as artfully stated in the declaration, and from which the proofs so essentially vary) sold to Gomez, Lopez, and Rivera, after deducting and re- serving at the disposal of the defendants, certain JOHNSON'S CASKP. 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETEK KEMBLE. 491 recovery at law did not preclude the respond- 1 presents itself for our examination, is, whether cuts from seeking relief in equity, against the the recovery at law precluded the relief sought fraud which is alleged; and which order also confirmed a former order made in the cause, directing an issue at law to try the matter of fraud. 4J)2*] *The first question, therefore, which sums for their indemnification ; nor is there any proof in the whole verdict, that he ever requested them to make the election which he stated in his declaration ; although it abundantly appears, that the election to receive the proceeds in Einx>pe was made by the defendants, and, for anything that is found to the contrary without eifect. Again the time of making the request, explains the ideas of the plaintiff. The last demand was only fifteen days after the departure of the White Fox. How could the defendants make the election in so abort a time, before it was possible it could be known where the property would be sold ? Were they to send to every port of Europe ? It is plain,then,that instead of their making an election pursuant to the right reserved to them, the plaintiff wanted an authority and the contract, to pursue the purchasers and get the whole of the property from them. This appears further, from the pains he has taken to establish on record, the customs of Normandy. It is difficult to see any connection between these customs and a power to receive the proceeds. It was the property he was in pursuit of, and not a balance of the pro- ceeds. There is a material variance, too, between his declaration and his letter of the 15th June. In the former he says, he asked for an authority to re- ceive immediately from Gomez, Lopez, and Rivera ; but in his letter, he artfully demands a power to re- ceive at the port of discharge, without saying from whom ; this variance is deemed essential and fatal. The court below were inconsistent in the admission of testimony. The plaintiff was permitted to prove the custom of Normandy, with a view, no doubt, of inducing the jury to believe that he had been in- jured by not receiving the authority demanded, and yet the defendants were not permitted to show any thing in mitigation. If the rule be just, that they, ipxo facto, the very instant the default, if any, took place, put themselves into the place of the purchas- ers, without the possibility of protecting themselves against such an enormous penalty, and that the price of the article was the only rule of damage, the court should have excluded this testimony al- together. The court rejected the testimony offered on the part of the defendants that no damage had been sus- tained, on the ground, that the law in this case hav- ing fixed the amount of the damages to a precise definite sum, it could be neither more nor less ; it was, therefore, improper to receive evidence to show that a less, or any particular damage was sustained. They admitted this evidence on the part of the plaintiff, to show that he had sustained particular Damage, and refused it to the defendants. The court have, therefore, certainly been in an error in admitting one, or refusing the other. It is true that the custom of Normandy makes considerably in favor of the defendants, as it dis- covers the plaintiff's true object, and the injury he contemplated doing to them, by taking the whole property under the pretence of a lien, into his own hands. The defendants have a right, however, to complain of its admission, as being directly contrary to the rule which the court enforced with respect to them. If circumstances of aggravation were ad- mitted on the one side, surely matters in mitigation ought to have been received on the other. 28. That the rule of damage was erroneous may be further illustrated from actions which are brought on contracts containing penalties. If it be an action of debt for the penalty, at might be said that the Earty lias ascertained the sum he is to pay for the reach of his contract, and that every other rule is uncertain. Yet every one knows that the actual damage sustained is all that the plaintiff can event- ually recover, and that this must be ascertained by a jury. Let us admit as strong a case as can be put for the plaintiff. Suppose the defendants imme- diately after making the sale to Gomez, Lopez and Rivera, had covenanted, under the penalty of 50,- 000 to give the plaintiff, in the course of a week, au- thority to receive the proceeds in Europe, and that they had no demand whatever against him. They, however, refuse, without assigning any reason what- ever, to give such authority. In an action of debt JOHNSON'S CASES, 1. in equity. If it did, the decision of this point will put an end to the cause; if not, there are other questions which will remain to be ex- amined. The general principle, that the judgment or i for the penalty, or in action of covenant, the penalty ; would be disregarded, and the rule of damage would be the injury actually sustained ; that is, the amount of the proceeds, with interest. Shall they, then, be ; in a worse situation, because they did not comply ' with an implied promise, and refused to give an au- i thority in a case where, to say the least, it was i doubtful whether the plaintiff was entitled to re- ceive one, and where they assigned, at least, a plaus- ible reason for their refusal, and could certainly not have complied, without very imminent hazard to themselves? 29. The finding of the jury, as it respects the dam- ages, is illegal, and, therefore, the judgment ought to be reversed. Instead of assessing them as is cus- tomary, they refer it to the court, whether the con- tract price snail be the rule. If the court be of that opinion, then they find such a sum. While attaint* were in force, such a verdict would not have been Eermitted, as the party must have been deprived of is remedy against them for excessive damages; for no attaint would lie on a verdict, where the quantum of damage, as well as the law, were re- ferred to the court. It is a dangerous innovation on established precedents. Assessing of damages is emphatically the duty of jurors. Referring it in this way to the court, if not a violation of trust, is destroying those barriers between the provinces of courts and juries, in the preservation of which sep- arate and distinct, consists the great excellence of I this mode of trial. This is at once surrendering I their prerogatives, in which the party has an inter- I est not to be defeated by pusillanimity, or a mis-' ! taken deference for the opinion of others. They are to inquire what injury the party has sustained, not to leave the quantum to be determined by the court. If jurors are thus permitted to evade ad- ! justing the very object for which they are convened, ! their attendance may as well be dispensed with I altogether, as a useless expense, and questions of i damages as well as of law be at once submitted to ; the court. If this honorable court shall think the plaintiff entitled to recover, but that the jury have neglected, from a diffidence in their own judgment, to exercise that discretion respecting the damages, with which they are peculiarly entrusted, they may, and no doubt will, order a venire facias de novo in order to admit further light, and to have the ques- tion of damage definitively settled by the proper tribunal. It is much, however, in favour of the de- fendants, that the jury have expressed no opinion against them, either as to their liability, or to its extent. It would have been impossible to induce a jury of merchants to subscribe to so dangerous a doctrine. It is a matter of public notoriety, and ought to be mentioned, that the first jury, who were selected from the most respectable merchants in the community, determined that the defendants had : incurred no responsibility whatever. Lastly. The judgment ought to be reversed, be- cause it is an attempt to punish the defendants for I the insolvency of the purchasers, without a particle i of proof that they have in any degree contributed ] to such insolvency. Although their failure is not i stated on the record, it may be fairly inferred from I the plaintiff's conduct. Why look to the defend- ants for the contract price of'the cotton and indigo, and that in so questionable a form of action, if the purchasers were able and liable to pay? An action on their notes would be more certain and expedi- tious. The buyers must then be either unable to pay, or have good reasons for resisting payment. If their bankruptcy cannot be attributed to the de- fendants, why should they become their substitutes? If the buyers have a defence, the defendants ought in no event to be answerable for any part. The plaintiff's motive to this suit also appears from the time of its being brought. If he really intended to recover damages for the actual injury sustained by our default, why not immediately abandon to the defendants the whole property, and commence the action without delay? Instead of this, he waits more than a year to discover how the speculation would tr-rminate. If the issue had been prosperous, and the buyers had stood their ground, no recourse 397 492 COURT OF ERRORS, STATE OF NEW YORK. decree of a court possessing competent juris- diction, shall be final as to the subject matter thereby determined, is conceded on both sides, and can admit of no doubt. The principle, however, extends farther. It is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. (Prec. in Chan., 221; 3. Atk., 224; 1 Vern., 176; 2 H. Black., 414; 7 Term Rep., 269; 2 Cas. in Chan., 95; Chan. Rep., 243; 2 Burr., 1009.) The reasons in favor of this extent of the rule, appear to me satisfactory; they are founded in the expedi- would have been had to the defendants; and yet their liability and its extent were precisely the same, whether the purchasers were able to pay or not. It was a liability for the "disastrous consequences," as , the plaintiff well expresses it, occasioned by our de- , fault, not a liability to pay the amount of the notes. This preposterous notion never occurred to him. Let him point out a single disastrous consequence i occasioned by the defendants, and they will com- : pensate him an hundred fold. After all that will or can be said on the subject, j into what narrow limits may its real merits be com- i pressed? It is a dispute between a principal and his factors. The former complains or not being- fur- j nished with a power to receive the proceeds of cer- ; tain property in Europe, or in other words, certain ; monies. The factors say: "We have a lien on all i your papers, and on the price of your goods, for our j advances and responsibilities. This lien the law gave j us the moment the sale was made. As these ad- I vanees are very considerable, we only ask you to , secure us in this country, and you shall have every ; thing you want." This lien is not a chimera of the '< factors' own brain. The principal himself admits i it, but insists, that as the property was to be paid for in Europe, as far as the proceeds xtended, the f ac- \ tors were bound to take payment there also, and to ! look to a portion of these proceeds, in the hands of j the purchasers, for their indemnification. In sup- port of this perfectly novel idea of a qualified lien, j the court are apprised, that not a single authority | from any book will be produced. The principal's ; counsel will rely upon nice and subtle distinc- j tions, which splendid talents will readily suggest, and upon a train of reasoning so refined, as to re- j quire faculties equal to their own, to be able fully i to comprehend. The factors, in opposition to such ! a limited lien, assert, "That it is of no importance to them, upon wh_at terms the principal sold his prop- erty, or where it was to be paid for. That the rights of factors are clearly defined by law, that they never before heard, that some factors had one kind of lien, and others a different one, or that the liens of f ac- j tors vary according to the contract between them and the purchasers ; but granting, say they, that our lien was thus restricted, and that we were bound to j go to Europe for payment, we insist that we had a ; right to keep the whole property under our con- J trol, until actual satisfaction in that country, and ' not to look only to a remnant of it, which might be \ wasted by the purchasers, or wrested from them by : the principal himself. If neither happened, and the buyers by misfortunes become insolvent, our se- j curity will be much impaired, as, in such case, our dividend on their estate would not pay our demand." On the question of damages, the controversy is. if possible, yet more simple. The principal brings his action for damages, or a compensation for an actual ; injury, which he alleges he has sustained by a breach i of duty in his factors. The factors say, "if we have been guilty of a breach of duty, it has been attended with no loss or damage whatever to our employer, and that, therefore, he is not entitled to any recom- ! pense or equivalent whatever." The principal, ! knowing that he had sustained no loss, and, of j course, that he could not prove anv, abandons the ; attempt (for his counsel certainly had in view the ; necessity of proving special damage, when they , drew the declaration), and insists upon the defend- i ants paying the whole sum which the purchasers had contracted to give. The factors, to this extravagant i pretension, oppose this plain answer. "If," say they, j ''we erred, in not giving you an authority to receive j these proceeds, surely their amount, with interest, can be all which you are entitled to from us. It matters not where your money was to be paid ; if we were engaged by bond to pay you a certain sum on the royal exchange of London, and we fail, you can only, if you sue us in America, make us pay the same amount, with interest, here. Why then did you not show the amount of these proceeds? This would have been easy. One of the purchasers, and the very person who sold the property in Europe, was attending the trial. Nay, why did you not per- mit us to show their amount ? What possible reason 398 * can be assigned for your solicitude to keep out of view these proceeds, other than that they were so- inconsiderable, that you wished the court and jury to be kept in ignorance of them ? For aught that appears on record, the property never was sold in Europe ; if so, how are you injured ? Why should we take the place of the buyers? Did we guarantee their responsibility? Did you not sell the property to them yourself? If they have failed, who occa- sioned their bankruptcy ? Was it not brought upon them by the extravagant price they were to give for these articles? If they have been ruined by no agency on our part, why are we to make good their engagements? Show us that any loss whatever has been occasioned by us, and you shall be compensated to the utmost farthing." On the part of the plaintiff, it was contended, that the judgment of the Supreme Court ought to be affirmed for the following reasons : 1. That every contract made by a factor for the sale of goods, is for the benefit of his principal, and forms a contract between the principal and the pur- chaser ; and that every contract made by a factor for his own benefit, with the property of the prin- cipal, is a violation of his duty, and a fraud against the principal. 2. That every factor is bound generally to obey the orders of his principal, and particularly to use his endeavours to carry into effect any contract by him made for the benefit of his principal. 3. That, therefore, if a contract should stipulate an advantage, to depend on an election to be made, that election being itself a privilege or benefit, is to be exercised for the principal, and is subject to his control and direction. 4. That in the present case, the right of election to receive the purchase money in Europe, was a right which the defendants ought to have exercised for the benefit of their principal, according to his di- rection and request, especially as he was thereby to receive a premium or advance of price of five per cent., equal to $6,120.31. a. That this position and inference are the more obvious in the present case Because, the factors could neither have stipulated for, nor exercised such a right without the consent of their principal. Be- cause, the contract was made by the intervention and express direction of the plaintiff. Because, it was his avowed object to transfer bis property to France, of which country he was a native and citi- zen. Because, at Havre de Grace, to which port the ship was bound, he would have had a lien on the property, which would have enabled him to have taken precautions important to his security ; and, because it is absurd to suppose that all these advan- tages could be defeated, at the mere pleasure of the factors, and in defiance of the direction of the prin- cipal. 6. That the acknowledged lien which a factor has on the property entrusted to him for his advances and responsibilities, can form no objection to the demand of the plaintiff in the present case. Be- cause, That lien, like every other right, is liable to be modified or abolished, by the agreement of the par- ties, either express or implied ; That it is not in its nature local, but depends wholly on the place of payment ; That the defendants, by becoming parties to a con- tract for the benefit of the plaintiff, containing a right of election to receive in foreign parts the moneys to arise from the proceeds, virtually agreed to give effect to this right, and to exercise this lien at the place of payment ; That if payment had been positively stipulated at Havre or Hamburgh, no doubt could have arisen but that, after reserving enough to cover their advances and responsibilities, they would have been obliged to pay the overplus there to the plaintiff; and in such case, to have contended that they would have had a right to bring back the whole amount of the sales to New York, at his expense and risk, to cover themselves for a sum which might not amount to ofne thousandth part of it, would be an absurdity too glaring to be endured; that a right of election JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 492 ence and propriety of silencing the contentions of parties, and of accomplishing the ends of justice, by a single and speedy decision of all their rights. It is evidently proper to prescribe some period to controversies of this sort; and what period can be more fit and proper than that which affords a full and fair opportunity to examine and decide all their claims? This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilance and attention; a different course might be dangerous, and often oppressive. It might tend to unsettle all the determinations of law, and open a door for infinite vexation. This reasoning is founded in good sense, and supported by the weight of authority. It is equally applicable to the Court of Chancery as to any other court. It is true, some ancient precedents have been, and more of them may, perhaps, be found to oppose this doctrine, but they appear to have originated at a period when the limits of the respective courts of equity and of law, in England, were imper- fectly ascertained, and when the extreme rigor of the latter drove suitors to seek re- dress from their judgments, in the more liberal conduct of the former. The Court of Chan- cery availed itself of this disposition in the to receive in a foreign port, brings the matter to the same issue; when that election was made, the foreign port became the place of payment, and there only could the lien of the factors be exercised; That it is an invariable maxim in law, that he who agrees to an end agrees to the means. The defend- ants might have refused to enter into the contract, on such terms but having assented, having executed the contract they were bound not to impede the per- formance of it ; That the defendants could have given the authority required of them by the plaintiff, in so special a form, and with such co-operation of an agent named by themselves, as would have secured to them the full benefit of their lien; And lastly, it will be demonstrated, that upon the construction contended for by the defendants, they and their agents may keep the whole property in their hands forever. With respect to the measure and amount of dam- ages, for the plaintiff, it will be contended, 1. That the rules of law prescribe the measure of damages, in all cases in which they are not merely contingent. Thus, in promissory notes, and other liquidated demands, the legal interest on foreign bills is 20 per cent., and on inland bills 5 per cent.; without any inquiry into the special damage which the party; may have actually sustained. Thus, in actions of trover, however slight the damage, the party is compelled to pay the whole value of the subject of which he hath made an im- proper use. Thus, finally, in every case of a factor or trustee, the damages are invariably the whole value of the property which may have been affected by his neglect or misconduct; as, in a case of acknowledged authority, if a factor be instructed to sell at a credit of thirty days, and he sell at a credit of thirty-one, he is instantly liable for the value of the whole, although the purchaser prove insolvent within the thirty days; because a viola- lation of his duty relating to the whole. If he had sold a part only, he would, in like manner, have been liable for that part. So if a trustee be directed to put out money on real property, and lends it on personal security, however competent, he is in- stantly answerable pei-sonally for the whole. No inquiry is made or would be allowed as to the actual or probable damage sustained; the factor and the trustee are deemed to have taken the responsibility upon themselves. 2. That the application of this obvious principle is peculiarly necessary in the present case, because of the impossibility of ascertaining or calculating the events which may have affected the views and interests of the parties ; that if the plaintiff should prove on the one part that he could nave made half a million of dollars by the receipt of his money in Havre, and by his presence in aiding the sales, JOHNSON'S CASES, 1. courts of law, and assumed an unlimited power of revising their decisions. *This [*493 power was resisted, but without success, till the courts of law relaxed their severity, and adopted more just and liberal principles on almost every subject, and particularly on the subject of granting new trials. Since that period, the boundaries of the different courts have became better established and understood (1 Atk., 293), and their decisions are mutually respected, as conclusive on the matters over which they exercise jurisdiction. These ob- servations are intended rather to account for some of the ancient cases (2 Vern., 146, 240, 378, and Counters of Gairwbwmigh'tf case at the Rolls; Prec. in Cha., 233), which have been produced by the counsel, than as immediately applicable to the question before us. I con- sider, therefore, the rule in the extent I have mentioned, as firmly established by the mod- ern authorities, and founded in propriety. If so, the only inquiry is, whether the respond- ents, under the circumstances of the case, would have been admitted to make a defence on the trial at law, on the ground of the fraud which they now allege. It is not to be doubted, but that courts of law and equity have a concurrent jurisdiction could have also insured a profit to Gomez & Co., and the defendants, on the other part, should prove, that they had reason to believe that a better market could be had at Hamburgh, a court ought to pronounce, as has been done by the Supreme Court, that all such proof would be irrelevant, and could tend only to introduce confusion and uncer- tainty ; the only object of inquiry being, have the defendants neglected or disobeyed the orders of their principal? If so, does their neglect or mis- conduct relate to the whole or a part only of the property; if to the whole, they are liable for the whole ; if to a part, for that part only. No other evidence was admissible to extinguish or mitigate the damages, but that the price in the sale wa* fraudulent ; that the property had been lost before the default; that the principal had released the whole or part, or had been wholly or partially com- pensated; neither of which points was in any sort attempted to be proved. 3. That a default, which gives a right of action, necessarily carries with it the rule of compensation or damages, as an incident, and which cannot, therefore, in any degree depend on future events- and contingencies. 4. That as the default, ID the present instance, related to the whole property, and defeated the essential part of the sale, the defendants thereby substituted themselves to the purchasers, and took upon themselves the risk of future contingencies: That the amount for which the property sold is the proper and only standard of value and of damages; and that on any other principle there could be no rule of damage in the present case; the events which took place subsequently to the default offer- ing only a field for vague and unlimited conjecture. 5. That in the cases mentioned under the first head, and in many others, the law fixes the rule of damages, which will regulate and control the ver- dict of a jury; that when the parties agree to the value, this value is the rule; that where an agent, by his assumption or default, puts himself in the place of another, with whom he has settled the value, the value so settled shall govern as against him. 6. That, consequently, the amount for which the goods were sold to Gomez, Lopez and Ilivera. together with five per cent, for receiving in Europe, is the principal sum for which the defend- ants became liable, for their default. On the 15th of March, 1798, the Court of Errors delivered their opinions, when it appeared that a majority of the court* were for affirming the judg- ment of the Supreme Court. Judgment affirmed. *There were 28 for affirming, and 5 for reversing. 399 COUUT OK EKHOKS, STATK OF NEW YORK. 1800 011 the question of fraud. (8 Black. Com., 431; 2 P. Wms., 156, 220: 1 Burr., 896, 480, 382; 2 Vcs., Jun., 295.) Considering the re- poudcuts, according to the former decision of this court, as completely substituted with re- gard to the appellant in the place of the pur- chasers, they became responsible to him to the same extent in which Gomez, Lopez, and Rivera were liable, by the original contract; it follows, that they acquired all the rights of Gomez, Lopez, and Rivera, and, of course, could avail themselves of the same defence. (Park, 303.) We have seen the latter actually making the defence of fraud at law, on the trial of the notes. It was equally competent for the respondents to make that defence, on the trial against them. Whether that defence would apply to the whole action, or to the amount of the damages only, cannot be ma- terial, nor can it be considered as a point merely collateral to the issue between the parties. In every action of this sort, the amount of the damages to be recovered, as well as the right of recovery, is a point im- mediately in litigation, with respect to which 494*] the parties are supposed to be *equally prepared, and must be equally concluded. To consider the damages as distinct from the right of action, or collateral to it, and on this ground to review the judgment of another court, would destroy the effect of the rule. It often happens that the amount of damages constitutes the principal question between the parties, and in every case, the whole merits of the cause must be re-examined to judge of their propriety; and, thus, in another form, the merits would again become the subject of legal investigation. It is, however, admitted, that cases in which there are no laches or neglect, form exceptions to the rule. Thus, where a party has no no- tice of a defence to which he is entitled, or can make it appear, that material evidence has been subsequently discovered, which would probably support that defence, and alter the determination, he ought not to be concluded. But in these cases, it is incumbent on him to show a reasonable ground to presume that he has not been guilty of negligence, as in the first instance that he was ignorant of his de- fence, or in case of the discovery of new evi- dence, that he had used due diligence, and could not obtain it. Without this restriction, it would be in vain to say, that he is ever pre- cluded, for the pretence of new matter or new evidence, when a party is dissatisfied with a former determination, would always be made. In the present instance, it cannot be pre- tended, that the respondents had no knowledge of the charge of fraud. If their own testi- mony is to be credited, their agents, Smith & Atkinson, in London, had notice of the fraud, if any existed, as early as October, 1795; for the property was at that time abandoned to them, on the very principle that there was a fraud in the contract, notice of which must have been conveyed to their principals. But independent of this, both parties had express notice of the fraud, long before the trial at law. The bill filed by Gomez and Rivera, to which they were parties, together with Lopez, was founded wholly on this charge. It was, 495*] therefore, completely within their own 400 knowledge, and for aught that appears, the evidence of the fraud, if any existed, was as completely in their power. If it did exist, the legal presumption is, that they had the proofs in their power, for a party is never presumed to be ignorant or incapable of evincing the truth of his cause. If the fact be so, it is in- cumbent on him to show it, in order to excuse the apparent neglect, and support his claim to an exception in his favor. The manner in which it is to be shown must always depend on the particular circumstances of the case. In the present instance, there is no proof, nor any circumstance in my recollection, from which it can be reasonably inferred that the respondents could not, with proper diligence, have possessed themselves, on the trial at law, of the same evidence they have since offered, and I believe it is not even alleged in their bill. Under these circumstances, I think it would be unsafe and improper, in any court, to open a controversy already determined, on the loose conjecture that they might not have had the evidence in their power. It has also been urged, that the respondents were surprised by the recovery at law. If they were in reality surprised, it was not by a matter of evidence, or a question of fact, but by a principle of law which was determined against them. It would be contrary to first principles, to admit a mistake or ignorance of the law to excuse a neglect. If the respond- ents had been surprised by other means, as by artifice practiced by their adversaries, or by testimony which they could not reasonably be prepared to meet, the case would stand on different grounds. It is this kind of surprise only, which I apprehend is considered at law, as material on a motion for a new trial. Such was the case cited from Burrow (Bright v. Ei/nou, 1 Burr., 396), where, in assigning the reasons for a new trial, the court, among other things, say, that the attention of the jury had been artfully drawn from the fraud (the principal point in the cause), to the heinous charge of forgery alone. The verdict of the jury was there traced to the act and manage- ment of one *of the parties, and not to [*4JM> any neglect or default of the other. The fraud was actually in evidence, and the sur- prise related to the proof of a fact in contro- versy between the parties. It will also be recol- lected, that the principal ground for granting a new trial in that case, was the want of an express direction from the court on the ques- tion of fraud. In the present case, there is no pretence of any such artifice, nor was there any allegation of fraud at the trial, and judg- ing from the evidence alone, the silence of the respondents at law on the subject of fraud, if it did really exist, can only be imputed to their own inattention or neglect. If we examine into the practice of the Court of Chancery (1 Eq. Cas. Ab., 176; 1 Vez., 434; 2 Vez., 576; 3 Atk., 35; 2 Atk., 178), we shall find it has adopted the same rule, with regard to its own determinations; and it is not pre- tended that that court will exercise a different control over the judgments of other courts, than over its own decrees. The cases of bills of review in that court, are analogous on this point; and the same principles have been adopted and established by repeated decisions. JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 496 Thus Lord Hardwicke, with regard to bills of review, says, "there are always two points proper to be attended to on a petition for that purpose ; 1. To show that the new matter upon which such bills is sought, has come sub- stantially and materially to the knowledge of the party or his agent, since the time of the decree in the former cause, or since such time as he could have used it to his benefit in the former cause ; 2. That it is probable such new matter is relevant. Again, it is held, that for- getfulness or negligence of parties under no incapacity, is no foundation for a bill of re- view; and matter already settled, or which might have been put in issue, and settled in the original cause, shall never be drawn into examination on a bill of review." In every light, therefore, in which this sub- ject can be seen, whether we view it as con- sidered by courts of law, with regard to their own determinations, or by courts of equity, with regard to their own decrees, or in rela- tion to the interference of the latter with the 497*] judgments of the former, *the same rules and the same principles appear to prevail. On the first question, I am, therefore, of opin- ion, that if any fraud existed, it was com- petent to give it in evidence, on the trial at law; that it was the duty of the respondents so to do, if they had notice of the fraud; that they had such notice, and for anything that appears, had the evidence in their power as fully as at any subsequent period, and of course, that they are precluded by their neg- lect, and cannot, now, avail themselves of this defence. This may, perhaps, be deemed a severe ap- plication of the rule, the mmmumjm between the parties; but I have sought with solicitude to discover a principle on which I could with propriety depart from it; and in every shape in which I have been able to turn the question, insuperable objections have occurred. It still remained a question of principle on the one hand, and of feeling on the other. The mag- nitude of the property in question, alone can furnish no guide. It may and ought to have weight, in cases of doubt or difficulty, but when principles are plain, it cannot, of itself, be made a ground of relief. It is incapable of any certain criterion; in its nature nothing can be more vague; and if adopted, instead of le- gal rules and legal discretion, we must be gov- erned by the fluctuating and arbitrary notions of magnitude which may be applied to every particular case. I have dwelt more minutely on the prelim- inary question, not only because it appears to me sufficient to decide the cause, but because it involves a principle which I think of the first importance to the safe and effectual ad- ministration of justice. Nothing would ap- pear to me more dangerous in the conduct of our courts, and more productive of endless litigation, than to open with facility their sol- emn determinations. If, in the instance be- fore us, we should be of opinion that there is no foundation for the charge of fraud, it would, in itself, furnish a strong example to show the danger of renewing a controversy 498*] *already decided, and the ease with which new plans of defence may be invented, and even supported by witnesses. JOHNSON'S CAPES, 1. N. Y. REP., BOOK 1. But there are other points in the cause, which appear to me to render it capable of an easy determination. Admitting the fraud to be open for examination, the appeal is also from that part of the order which directs an issue at law. Here it is proper to notice, that after the original order for an issue was made, the parties agreed to submit to the court of chancery the question, whether the respond- ents were precluded, by the trial at law, as preliminary to the order for an issue? By this agreement, I consider the order for an issue as having been suspended, until the de- cision on the question thus previously made. The order was then confirmed and rendered complete, and the appeal from this confirma- tory order being strictly in time, brings up the question directly as to the propriety of the issue. Independent of this, I think there can be no doubt, that by an appeal from any inter- locutory or final decree, all the proceedings in the cause anterior to the decree, are neces- sary to be presented to this court, and proper for its determination. It may frequently be- come indispensible to reverse, alter, or modify the previous proceedings, in order to make them consistent with the decree to be here pronounced. All antecedent matter is, there- fore, necessarily before the court, and subject to its control. I have also no doubt that this court may proceed farther, if it appear that the merits are fully in its possession, and de- termine finally between the parties. That such is the power, and frequently the prac- tice of the House of Lords, in England, is evi- dent, from the cases which have been cited. (1 Bro., P. C., 57; 2 Bro., 405, 415; 3 Bro., 180, 218; 4 Bro., 582; 5 Bro., 387, 454, 478; 6 Bro., 468; 7 Bro., 1, 208.) On similar ap- peals, they affirm, reverse, or alter the order for an issue, and sometimes proceed to dismiss the bill, or otherwise decree on the merits. The power of this court is the same in this respect. I can see nothing in our constitu- tion or laws to restrain it. The constitu- tion simply directs the court to be instituted, and the act of the legislature organizing the *court, declares its powers in very [*499 ample terms. (Laws of N. Y., vol. 1., Nov. 23, 1784.) The words are, that this court shall have power "to reverse, affirm, or alter such sentence, judgment, decree or order, and to make such other order or decree thereon, as equity and justice shall require." These terms are sufficiently comprehensive to authorize a final decree, nor shall we thereby assume orig- inal jurisdiction. An original jurisdiction is that which takes cognizance of a suit ab origine. In this case, the propriety of making a final decree arises out of the appeal itself, which brings before us the whole merits of the cause. The idea that we have not the constitutional lights of the chancellor's reasons, with respect to the merits, is rather an objec- tion of form. In fact, we have his opinion substantially on the subject. He has told us that he has 'doubts on the question of fraud; that the evidence is not satisfactory; and that he wants further testimony to inform his con- science. At least, such is the language of the decree, for otherwise, it could have been of no use to order a trial at law. If, therefore, we are of opinion that the testimony in the cause 26 401 499 COURT OF ERRORS, STATK OF NEW YORK. 1800 is decisive, either for or against the fraud, and that it ought not to be sent to a jury, what es- sential lights can we expect to receive, by sending it back for the chancellor's decision? We may place him in a delicate situation, and oblige him to decree on the evidence, as it stands, but we cannot compel him to alter his opinion, or remove his doubts. We can, there- fore, expect no real benefit from such a pro- ceeding, and I cannot imagine that the consti- tution intended so idle a ceremony. Indeed, the position that this court has not the power to make a final decree, in cases like the present, supposes a 'defect of jurisdiction, which ought not to be admitted without evi- dent necessity. The power appears to me es- sential to a court of appeal in the last re- sort, and I have no doubt that it is vested here. The propriety of the order for an issue, and of this court proceeding to a final de- cree, are questions depending on the nat- ure and force of the testimony. It is true, 5OO*]*that in some specific cases, it is the com- mon course of the court of chancery to direct an issue at law; but even in those cases it de- pends on the practice of the court merely, and and the chancellor has still the power of de- ciding for himself, without an issue. In gen- eral, the ordering of issues depends on the application of sound legal discretion to the circumstances of the case.- (2 Vez., 42, 554; 2 Atk., 450, 295; 3 Atk., 516; 2 Vez., 56.) It is a power in its nature indefinite, and inca- pable of being reduced to fixed rules. The chancellor is, constitutionally, the judge both of law and fact. Whether the institution of such a court be expedient or wise, is not now the subject of inquiry. Its power is estab- lished, and the trial by jury is there unknown. However excellent that mode of trial may be, it is not the right of any party seeking his re- medy in that court to demand it. It ought regularly to proceed from the chancellor him- self, to inform his own conscience, where the evidence is insufficient for that purpose; and even with respect to him, it is not a power to be exercised at pleasure, and depending on ar- bitrary discretion. In a government of laws, no such discretion can exist, and although no precise rules can be given, it is sufficiently certain, that if the evidence be doubtful, and from the nature of the question, or from the testimony already given, it appears that further lights may be obtained, it would then be prop- er to require further proof; and the chancellor may direct it to be taken, either in his own court by new examinations, or send the ques- tion for trial at law. But on the other hand, if the evidence be satisfactory or decisive in favor of either party, the rights of such party ought not again to be hazarded before another tribunal, and the chancellor ought to decide. Possessing the power, it would become his duty, for the power and duty of a court are concurrent, and inseparable. On the subject of the evidence, I shall not trouble the court with many remarks. It has been discussed for several days, and to ex- amine it in all its parts, might occupy our attention as many more. Every member must, 5O1*1 I *think, have formed a decided opin- ion, without much difficulty. With respect 402 to myself, I shall only say, that notwithstand- ing the contrariety of some of the witnesses, relative to the fraud, the internal circumstan- ces of the case, and the conduct of all the parties concerned, satisfactorily show, that the pretended fraud could not exist. The natural course of the transaction speaks invincibly, and carries to my mind a full conviction. If this opinion on the evidence be right, the order for the issue was, of course, improper. The verdict of a jury cannot enlighten, but if con- trary to the evidence, may hereafter embarrass the cause. It cannot possibly be of use, but must be injurious, to send the parties through another course of litigation, and finally, per- haps, be obliged to decide between them under circumstances less favorable to truth and an equitable result. These reasons equally apply to induce us to pronounce a final decision in the cause. Possessing the power, I think it our duty to exercise it, and put the controversy at rest. I am, therefore, of opinion, on the several grounds I have mentioned, that the or- der for an issue ought to be reversed, and the bill of the respondents be directed to be dis- missed. KENT, J. This cause presents three ques- tions for the consideration of the court. 1. Does the judgment at law in favor of the appellant, bar the respondents from maintain- ing their present suit? 2. If not, yet was this a case proper for an issue at law? 3. If an issue at law ought not to have been directed, shall this court now finally decide be- tween the parties, the merits being fully before us, and if so, how shall we decide? After the opinion which has already been delivered (by Mr. Justice Radcliff), and in which I concur, it might, perhaps, be sufficient to refer generally to that opinion, as expressive of my own. But in a cause of so much ex- pectation, and of so much magnitude to the parties, it may not be altogether useless to go over the same ground, and briefly to declare my own view 01 the subject. *1. Every person is bound to take [*5O2 care of his own rights, and to vindicate them in due season, and in proper order. This is a sound and salutary principle of law. Ac- cordingly, if a defendant having the means of defence in his power, neglects to use theni, and suffers a recovery to be had against him 3 a competent tribunal, he is forever preclud . (2 Burrows, 1009; 7 Term Rep., 269; 2 Hen. Black., 414, 415.) The only cases which I can recollect, as forming exceptions to this general rule are, 1. The case of mutual dealings between the parties, where the defendant omits to set off his counter demand, and may still recover it in a cross action ; and 2. The case of an ejectment, in which the defendant neglecting to bring forward his title, is not precluded by the recovery against him from availing himself of it in a new suit. The general rule is intended to prevent liti- gation, and to. preserve peace; and were it otherwise, men would never know when they might repose with security on the decisions of courts of justice; and judgments solemnly and deliberately given, might cease to be revered, JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 502 as being no longer the end of controversy and the evidence of right. The principle prevails both in courts of law ! and of equity. In bills of review which are brought before the same tribunal to review a former decree, it is a settled maxim of equity, that no evidence or matter in the knowledge of the party, and which he might have used in the former suit, shall be the ground of a bill of review. (3 Bl. Com. ,454; 1 Eq., Cas. Abr., 81; pi. 4, 299; 2 Cas. Abr., 176; 2 Atk., 178; 3 Atk., 35; 1 Vez., 434; 3 P. Wms., 371.) "Unless this relief," says Lord Ch. Talbot (3 P. Wms., 371), " was confined to new matter proved to have been discovered since the trial, it might be made use of as a method for a vex- atious person to be oppressive, and for the cause never to be at rest." " A notice of the 5O3*] matter, even to the party's *counsel or agent," observes Lord Hard wicke (3 Atk., 35), ' ' is notice to the party, and sufficient to repel the new suit, for otherwise, there would be no end of suits." I have mentioned the observations of these great men, because the reason of the rule is laid down by them in plain terms, and receives the more authority, as coming from two of the most distinguished characters that have presi- ded in the English courts of equity. Not only bills of review are denied, but, in pursuance of the same principle, a court of chancery never relieves against a verdict at law, on the ground of its being contrary to equity, unless the defendant below was ignor- ant of the fact at the trial, or it could not have been admitted as a defence. (3 Atk., 223; 1 do., 293; Prec. in Chan., 221; 2 P. Wms., 426; 2 Washington's Rep., 258, 270, 272, 275.) This being the general doctrine in the books, and the reason of it. I do not regard any soli- tary case (2 Vern., 147; Prec. in Chan^, 233) that may be found to the contrary, as having any force to shake it. 1 It remains to apply these principles to the present case. The suit at law of the appellant against the respondents, was a special action on the case, for a breach of their duty as factors, in refus- ing to elect to receive the amount of the notes in Europe, and to give the appellant the requi- site authority for that purpose. In conse- quence of this default the respondents became, in respect to the extent of the remedy, substi- tuted in the place of Gomez, Lopez and Ri- vera, and responsible for the amount of the property. The breach of duty reached to the whole prqperty, and the principal had a right to abandon it to them, and to regard them as appropriating the whole to themselves. (Yelv. , 202; 2 Mod., 100; 12 Mod., 515.) This was the amount of the decision in the suit at law. 5O4*] *Placed in the situation of Gomez, Lopez and Rivera, and subject to their burden, the respondents took, of course, their advan- tages, and succeeded to the same means of de- fence. This is an universal principle of law and justice. 1. Equity only relieves after a verdict at law, when effectual cognizance cannot be taken at law, as in complicated accounts, or where a verdict is ob- tained by fraud, &c., and not where the party omit- ted to avail himself of his legal defence. 1 Schoales & Lef roy, 305. JOHNSON'S CASES, 1. The respondents were, accordingly, compe- tent to set up as a defence in the suit at law, the fraud alleged in the present action, and there was nothing in the form of the action which precluded them from doing it. If a factor neglects to make insurance for his principal, he is responsible for his default, in a like action on the case. Both the actions are of the same kind, and arising ex delicto. In such a suit, the factor may set up fraud, deviation, or any other defence which the underwriter could have made, had insurance been effected. (Wilkinxon v. Coverdale, Park, 303.) This is a case sufficiently analogous to be a direct authority in the present instance. The respondents were sufficiently apprised of the allegation of fraud, and that it was con- templated by Gomez, Lopez and Rivera, as a defence against the notes. They were informed of this by the bill previously exhibited by Gomez and Rivera in the court below, against the parties in the present suit, stating the charge of fraud in the sale of the goods. This was sufficient to put the respondents on inquiry; whereas nothing is shown from which we can conclude that they actually made any inquiry, or took a single step to possess themselves of the means of that defence. All the testimony now produced was, for anything that appears to the contrary, equally within their power then, as now, and yet no effort was made to produce it. The respondents did not even ask Gomez, Lopez and Rivera for their proofs, or call on them, as they had a right to do, for their own indemnity and safety, by a bill of interpleader, to come forward and make good their allegation. (Mitford, 125.) They were guilty of gross and palpable neglect, in thus slumbering upon this ground of defence, and must now be precluded from setting it up as a cause of equitable relief, against the verdict. It is *crassa negligentia, if a party does [*5O5 not seek after a thing of which he is apprised, and in law amounts to a notice. So whatever is sufficient to put a party on inquiry, is good notice in equity. (2 Fonb., 155.) If I am not mistaken in the principles which I have laid down, their application to the case before us is direct and " pointed, and they operate with irresistible and conclusive ef- ficacy to produce this result. The attention of the respondents upon the trial at law, was, no doubt, occupied in de- fending themselves on another ground, and, probably, they concluded that the ground which they took was stable and competent. This, however, makes no difference in the case. The law imposes it on every man to know, at his peril, the strength of his claim, and the soundness and extent of his defence. It indulges him even to make as many separate pleas or kinds of defence as he may deem material, provided it be done in due season. In the instance before us, there can be no just pretext for surprise. The respondents had sufficient knowledge of the charge of fraud, and had they made, as they were bound to do, due inquiry and ordinary efforts, they could have obtained the proofs. But they had chosen to abide by one species of defence, and to waive another, and like other litigants in similar cases, they must be concluded by their election. 403 505 COURT OF ERRORS, STATE OF NEW YORK. 1800 I am, accordingly, of opinion, on the first point, that the bill ought to have been dis- missed, and, consequently, that the decree is wrong. This opinion, if correct, puts an end to the cause. But as other members of the court may, perhaps, think differently on this point, I am willing briefly to examine the other ques- tions which have been raised and submitted for consideration. 2. The second point stated is this ; supposing the respondents not precluded by the judge- ment at law, was it proper, in this case, to have ordered an issue to be tried by a jury? pOG*] *The question on the order for an issue, I consider regularly before us, as the decree in the month of May, declaring that the respondents were not barred, and from which the appellant has appealed, repeated and con- firmed the order for an issue, which had been previously, but conditionally given, and the chancellor in assigning his reasons, and the counsel in their argument, have considered that order as open for examination in this court. It is the undoubted jurisdiction of the Court of Chancery to decide both on the law and on the fact. This power it has always possesed and exercised. But in cases of doubt and difficulty, that court is in the habit of calling for aid and information from abroad. If an important question of law arises in the course, of the cause before the Court of Chancery in England, it is the practice of that court to ask for assistance from the courts of law, either by associating one or more of the judges with the chancellor, in the hearing of the cause, or what is more usual, by stating a case and directing it to be argued in one of the courts of law, and to be returned with a certificate of the opinion of the court on the question submitted. This opinion when received is merely for information, and the chancellor may or may not follow it, as he, upon consideration, shall deem meet. (2 Vesey, Jun., 528, 529.) It is in like manner the practice of that court, and of our court of chancery also, to apply for aid to the courts of common law when the truth of the fact litigated is doubtful, and attended with difficul- ties. This the court does, not by asking the opinion of the court of law, but by directing a feigned issue to be tried by a jury. And the verdict of a jury upon the fact, like the opin- ion of the judges upon the law, is merely to inform, and not to control the judgment of the court of equity upon the question before it. It will be easy, therefore, to perceive, that ordering an issue must always depend upon sound discretion, to be cautiously and diligently exercised, according to the circumstances of each particular case. Instances are common in which the Court of Chancery has decided for it- 5O7*] self in the first instance, although *there was evidence of weight on both sides. (2 Atk., 295; 2 Vesey, 256'; Barnad. Ch. Rep. 100; Colles's Cases, 49.) And where an issue has been ordered, the House of Lords, in equity, have frequently on appeal reversed the order, because the truth of the fact was sufficiently ascertained without it, and, sometimes, where one or more verdicts have been actually taken, it has decided the cause in opposition to them. (1 Bro. P. C., 58.) 404 If the testimony be so contradictory, as that the truth cannot be discovered with certainty and it becomes requisite to judge merely on the credibility of witnesses, such an instance presents a case very proper and necessary for an issue at law. But in the present case, I perceive no difficulty, and of course think there was no necessity for a jury. We can decide upon "the allegation of fraud with great certainty; and indeed the testimony never could have authorized and supported "a verdict in favor of the respondents. This cause, then, ought to have been decided in the court below, without the useless delay and expense of a trial at law. 3. This brings me to consider the third ques- tion in the case, viz. : that having the merits before us, shall we not decide finally between the parties? I cannot bring my mind to doubt of the authority of this court. It is the settled rule of the House of Lords, in England, upon ap- peals, always to give such a decree as the court below ought to have given. This is the great and leading maxim in their system of appellate jurisprudence, and instances are, accordingly, very frequent, in which the lords, on appeals from interlocutory orders in chancery, have reversed the order, and decided finally on the merits. (1 P. Wms., 673; 1 Woodd., 232, 240, 241; 1 Bro. P. C., 58; 2 Bro. P. C., 408; 3 Bro. P. C., 183, 186; 4 Bro. P. C., 575, 582; 5 Bro. P. C., 454, 487; 6 Bro. P. C., 469; 7 Bro. P. C., 222, 423.) Their power on appeals is exercised with great latitude in dismissing the bill, or model- ling the relief, or granting *it con- [*5O8 ditionally, as may. best answer the ends of justice, and the exigencies of the case. Our system of jurisprudence is borrowed from the English system, and in all its great outlines, as well as in its subordinate parts, is happily modelled after that admirable monu- ment of the experience and wisdom of ages. .Without some very explicit and peremptory limitation, imposed by statute, I should have concluded, as a matter of course, that this court possessed appellate powers, correspond- ing with the jurisdiction of the House of Lords; I am presuaded that it was the intent of the act instituting this court, to give us the same ample and uncircumscribed authorities, for we are " authorized and required, on appeals from any decree or order of the Court of Chancery, finally to determine the same, and all matters concerning it; and to reverse, affirm, or alter the decree or order, and to make such other decree or order therein, as equity or justice shall require." The law, in the light in which I view it, ap- pears to be a wise and salutary provision. No person doubts, but that an appeal will lie upon an interlocutory order of the Court of Chancery directing an issue. Upon such an appeal, the whole testimony, and the whole merits must come up. The cause must have been ripe for hearing, and the chancellor must have heard it, and have carefully examined the proofs, before he could have determined that the testimony raised such doubts m his mind as to render it fit in him to waive his own un- doubted right to decide on the facts, and to send the parties to another forum for trial. JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 508 Upon the appeal the court must likewise re- view the whole merits; it must, in fact, decide on the merits, before it can judge of the fitness or untitness of the order for an issue ; and if it should be of opinion that the cause was too clear to admit of a reasonable doubt, and yet was under the necessity of remanding it, to receive the ceremony of a previous decision in the court below, it would answer no other pur- pose, but to maintain for a year longer, an irritating litigation. It would be sending the 5O9*] *cause back upon a fruitless and op- pressive errand, and when it returns, at the end of the year, with the parties more angry and more exhausted, and, with a large accumula- tion of expense and vexation, it must terminate in the same result then, as it ought to now. I can hardly persuade myself that the construc- tion of our law can be a reasonable one, which requires such a nugatory act, and which leads to consequences so mischievous. Possessing the authority to decide finally, I think we ought to exercise it in this instance. I assume it as a fact, and one on which we are bound judicially to act, that all the proofs are before us; that no new or further proof is behind and since discovered; that the cause is as ripe here as it was in the court below, for ultimate decision; and if we are persuaded in our own minds, that the facts before us can never support the allegation of fraud, we ought to say so, and put an end to the conten- tion. I have thus carefully examined all the ques- tions of law which have arisen in the course of the cause. I forbear to recapitulate the facts. They must be familiar to every mem- ber of this court, and every member of the court is as competent to judge of those facts as myself. I will only observe, that in viewing the written documents, and examining the intrinsic circumstances and internal evidence of the transaction, the truth strikes my mind with great clearness and force. The whole complicated charge of fraud appears to me to be absurd, inconsistent and incredible; and I should never be brought to yield my con- victions to any verdict that might happen to establish it, with such slight materials, and on so frail a foundation. My opinion, therefore is, on the merits as well as on the first point of law, that the decree of the Court of Chancery ought to be reversed and the bill dismissed. BENSON, J., was of the same opinion. LEWIS, J., was of opinion that the decree ought to be affirmed. 51O*] *LANSING, Ch. J. The questions which have been raised in the argument of this cause, are, 1. Whether the respondents are now pre- cluded from insisting on the fraud, admitting that it had been practiced? 2. Whether the preponderancy of proof, on either side, was such as to impose it on the Chancellor to determine between the parties, without seeking to inform his conscience by awarding an issue? 3. Whether this court, being possessed of JOHNSON'S CASES, 1. the cause, on an appeal from an interlocutory order, can decide finally? The general principle that a point deter- mined by a court of competent jurisdiction, shall be conclusive against all parties who were in a situation to controvert it, is so well established as to leave no doubt in my mind. The reasons which have already been given are such, as in my opinion are sound, and clearly establish both the legality and the utility of the rule. The respondents were sued for witholding the production of the sales of certain quanti- ties of cotton and indigo from the appellant, who had entrusted them with the disposition of those commodities, as his factors, and a judgment was rendered against them for the amount of the value ascertained by the con- tract of sale. The cotton and indigo, now the subject of controversy, are the same which the respondents in the former action had with- held. As fraud vitiates every contract, and as, if the fraud was actually committed, it was com- petent to the respondents to have shown it, in destruction of, or in mitigation of damages in that action, the strict rule of law would, as they neglected the opportunity, preclude them from alleging it now, as a reason for opening the question; for if the respondents could have shown that they were precluded on account of the fraud, from recovering the whole or any part of the amount of the sales from Gomez, Lopez and Rivera, they would have *been permitted to avail them- [*511 selves of that circumstance, at least to vary the measure of damages, and it is not now contended that it ought to have a different effect. There are, however, points in this cause which would incline my mind to con- sider this as an exception to the general rule. The object to which the attention of the par- ties was exclusively drawn in the former action was the substitution. It appears that though there was some notice that a fraud of this kind was attributed to the appellant, the charge was not matured. The facts on which the evidence of its existence rested, were dis- covered in Europe. The knowledge of that evidence, it appears, was, in a great measure, confined to Gomez, Lopez and Rivera, and their agents. The knowledge of the respond- ents, as acquired from their own observation, did not extend to it. The positive denial of the appellant that it had existed, must have confirmed them in the opinion that the impu- tation was unfounded; and this denial must, if fraud existed, have been an unwarrantable artifice, calculated to confirm the respondents in the impressions they had received from their own observations; and though I cannot admit that a new principle was devised to govern the former case, the result of the trial, it was obvious, operated as a surprise on the respondents; and if a fraud had been commit- ted, the appellant's measures for concealment were persevered in to the last moment. All these circumstances would have mingled in the consideration of the court, if an applica- tion had been made for a new trial. I think these considerations may well operate to con- stitute this case an exception to the general rule; but from my impressions as to the sec- 405 511 COURT OK ERRORS, STATE OF NEW YORK. 1800 ond question, a determination of the first is not essential to a decision on the merits of this appeal. Having examined the answers of the par- ties, the depositions, letters and other papers exhibited in the cause, I am fully persuaded that the allegation of fraud is totally unsup- ported; that it cannot consist with the rela- tions of the witnesses produced to support it, 1512*] and that in every stage of *the transac- tion it carries its own refutation with it. I have, therefore, no hesitation in saying that I am perfectly convinced that no fraud existed. With this general declaration I had intended to dismiss this part of the subject, as it is a question of fact not involving any legal prin- ciples and, therefore, not peculiarly my duty to enter into a discussion of it, and as every member of this court has had an opportunity of examining and determining for himself; but as a difference in opinion exists, on the nature of the evidence, and as some members of the court may consider it as of that doubt- ful complexion which may render it a fit sub- ject for the determination of a jury, it is prop- er, as explanatory of the general conclusion I have drawn from the evidence and from a respect to the opinion of those gentlemen with whom I differ, in a cursory manner, to state the impressions the several parts of the testi- mony have made on my mind. It may, how- ever, not be amiss to premise that whether the warranty was promised to be reduced to writ- ing, whether it was actually so reduced or whether it depended on a verbal allegation that the commodities sold were of a particular description, would not materially vary the result. Fraud might be inferred by a less direct process, or less certain data, and the evidence of its existence might, from those circumstances, be susceptible of a different modification; but the fact being once estab- lished that the sale was fraudulent, it would, in any of those cases, as effectually destroy the benefits acquired by the party guilty of the fraud, as if the warranty was reduced to writ- ing. The evidence, therefore, respecting the warranty is no further material than as it affords a mean to test the consistency of the witnesses in giving their testimony relative to it. Hester Gomez and Mary Wright testify that in several conversations the appellant asserted that the cotton was of the growth of the Isle of France, and the indigo to be of two quali- ties, Flotang and Violet Copper. Abraham Massias gives the same relation as to the allegation of the appellant, and adds that 513*] Gomez, Lopez and *Rivera, wished to delay the conclusion of the bargain for a few days, for the purpose of examining the arti- cles; that the appellant objected to delay because the drawback would be lost, and offered, by way of obviating the difficulty, to warrant the quality of the articles. With this relation the deposition of Samuel Lopez corresponds. Without resorting to the testimony of the witnesses, with whom they have been particu- larly contrasted, I shall proceed to examine the other evidence in the cause. It appears that an advertisement was pub- lished by Gouverneur & Kemble. describ- 406 ing the cotton as Amoude, which is the best kind of Surat cotton; that this was con- tinued for a considerable time ; that after the intermission of a few weeks, another adver- tisement was published by them, offering the cotton for sale, and as affording a great spec- ulation for France. Some time,after the publication of the sec- ond advertisement, the respondents informed the appellant that an offer had been made for the cotton at three shillings a pound, by three persons. William Dickson, a person conversant with cotton, declares, that in February, 1795, he offered three shillings and six pence for the cotton, and eighteen shillings for the indigo, for a person who had freighted his ship, the Astrea, but that it was refused, because suffi- cient money could not be paid down, and because the appellant insisted on retaining the drawback; that he had before examined the cotton in bales, and saw some of the boxes of indigo opened long before the offer to pur- chase. Whether the offer alluded to in the respond- ents' letter was that of Gomez, Lopez and Rivera, or of three other persons, is of little importance. The offer must have been made from the inspection of the bales, or samples furnished, or representations made by the respondents, and if those samples, or repre- sentations, or that inspection, dictated the offer of three shillings a pound, it is a strange argument that the representation of the respondents and *bf the appellant [*514 must have been of the same import, or that the quality of the cotton corresponded with the description given of it by the appellant, or they could never have produced similar effects, for the price of Isle of France cotton, compared to that of Surat, we find, by the concurrent testimony of all the witnesses, to be in the proportion of nearly two to one, during all the fluctuation of the prices of those articles. Two or three witnesses swear, and respect- ing this there appears to be no controversy, that the mode of packing of the Surat cotton is essentially different from that of the Isle of France; that it is so striking to persons con- versant in the trade in that commodity, as to enable them to determine of which of these two places it is the production, merely from the external appearance of the bales. If Massias and Samuel Lopez are to be credited, the attention of Gomez, Lopez and Rivera, was early awakened to the quality of the articles they intended to purchase. They wished to delay the contract a few days, to enable them to have a particular examina- tion made before they closed it, and one of them describes the particular object they had in view in requesting the delay; the expecta- tion that a person in whose skill they had confidence, would arrive from Philadelphia. The contract describes the articles sold, as upwards of 600 bales of cotton, and about 12,000 weight of indigo; but from the ac- counts of sales rendered by the respondents, I it appeared that the quantity of each was accu- rately ascertained, by weighing them before they were shipped, during which process, another opportunity was afforded for inspect- JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 514 ing them, better than could possibly have been had during the time they remained in store. If the fraud was really practiced, as alleged, abundant means were presented for detection, especially as the indications of a different quality from the production of the Isle of France were so discernible. But to this it is answered, that Gomez, Lopez and Rivera depended upon the warranty with im- plicit confidence. JVIassias, however, testifies that the omission of it in the contract was 515*] discovered ^several days before the vessel sailed, and that application was made to the appellant to insert it; that he de- clined, alleging the difference which subsisted between him and the respondents, as a reason for not correcting the omission. It does not appear that any application was made to the respondents on the subject, though it was well knpwn that they had entered into the written contract, and retained it in their hands; and Massias states that very detention as a circum- stance that led to the discovery, as the respon- dents declined furnishing the appellant with a copy of the contract. These circumstances are of a nature not easily to command a tolerable share of credit. That Gomez, Lopez and Rivera should be disposed to delay a contract of such immense importance to them, for the purpose of taking so common a precaution as to procure a skilful person to inspect the commodities they intend- ed to purchase, has nothing extraordinary in it; but that they should be totally diverted from that object by the stipulation for a war- ranty by a stranger, and to forget to exact the evidence of his having made it, is so repugnant to the ordinary mode of conducting business, as to require a more satisfactory account than the witnesses produced have given. All the witnesses who attest to the prices are persons, as far as we know, of unim- peached characters, excepting so far as the matters they relate may detract from their credibility. They state that the prices of cotton of the production of the Isle of France, to be about double to that of Surat. Four witnesses swear that, during the year 1795, the prices of Isle of France cotton were from 5s. to 6s. a pound, and St. Dominigo from 2s. 6d. to 3s. 3d. Mr. Murray alone mentions the Isle of France cotton to be, in the spring of 1795, at 3*. and Surat at Is. 10r7. a pound. This varies the proportion of the prices in some degree. I can have no doubt, from this view of the proof, that Surat cotton was worth, estima- 516*] ting it at the market price, *about 3s. a pound, in the month of April, as there is no proof of a reduction in the price of that article before that time. The indigo, in my apprehension, affords, from the course of the transaction, equally strong evidence that what was testified with respect to the warranty, and the circumstan- ces attending the deception, alleged to be practiced in its sale, is equally unfounded. The indigo was put up at the Isle of France, at least before it was shipped at that place on board the Cleopatra. It is not pretended that the packages in which it was imported were changed ; if they were, as it is clearly in proof that immediately upon its arrival it was JOHNSOK'S CASES, 1. committed to the care of the respondents, it must have been done with their privity, or under their direction. This also is not pre- tended; but Isaac Gomez, whose correctness or integrity has not been questioned, and who does not appear to have any connection with the parties, or the matters in controversy, declares that he examined the indigo in 1794 ; that he discovered it, as far as he had exam- ined, to consist of three qualities, which he valued at 8s., 10s., and 12s. a pound, and that the appellant interrupted his examination be- fore he had gone through the whole. Massias and Samuel Lopez declare, that upon the opening of the indigo, it was discovered that there was a layer of good indigo, correspond- ing with the samples, on the top of the boxes and casks, and that the remainder was of an inferior quality. If, however, the indigo was not repacked, the same surfaces must have been presented which were prepared in the Isle of France, and exhibited in New York, and hence the deception must at least have continued till the arrival of the indigo at London; but we find, though the selection of samples was made with so little attention as not to have attracted the particular notice of Massias or Samuel Lopez, that they were of four or five different qualities. Messias says posi- tively that there were five. *If these samples had been taken [*517 from the surface, the indigo, in the interior parts of the packages, must at least have pro- duced an additional kind, respecting which both those witnesses are silent. If they had gone below the surface, the persons engaged in the selection of the samples must have dis- covered the deception, the instant they pene- trated to that of an inferior quality. If it had been so discovered, it is not possi- ble that Gomez, so materially affected in his interest by the fraud, would have remained silent on the subject; but that he advised his partners of it from London, has not even been suggested. Isaac Gomez, Jun., in his letters to Gomez & Lopez, from Hamburg, stated that .the mar- kets were low at that place; that though there were imaginary prices, "there were no pur- chasers; that London afforded the best mar- ket, but that at Hamburg he must sustain a loss of 60 per cent, on the adventure. In his letter of the 21st of September, from London, the amount of loss is not stated, but it is said, there is an appearance of great loss. If this observation applied to the real quality of the cotton, Surat, his statement was correct, that a heavy loss was probable; but if it ap- plied to cotton of the production of the Isle of France, all the proof we have in the cause leads to the conclusion, that instead of a con- siderable loss, it must have yielded a handsome profit. The conclusion, to my mind, is irre- sistible, that Gomez knew the quality of the cotton, before the 21st day of September, the date of his first letter from London. Massias and Samuel Lopez concur, that the discovery was first made on the production of the sam- ples to Smith & Atkinson, at London. An argument made use of by one of the counsel on the part of the appellant, appeared to me to have great weight; and that was, that if the fraud was contemplated in India, and 407 517 COURT OP ERRORS, STATE OF NEW YORK. 1800 the packages deliberately prepared for the ex- press purpose of deception, the warranty attrib- uted to the appellant must unavoidably operate 518*] to defeat the purpose, *and expose the appellant to inevitable detection, without a pos- sibility of being benefited by it, and the con- sequences of a detection would more immedi- ately attach to him, as it was not doubted but he was sincere in his intention to follow the cargo to its port of delivery. These could not well consist together, unless we suppose the appellant to be as ignorant as the witnesses represent him to be artful and designing. It appears that Isaac Gomez, Jun., arrived in London some time in the month of September, 1795; that on the 21st of that month he wrote a letter to Moses Lopez, in which he expresses, in very strong terms, the concern he felt on account of the ruinous consequences of the speculation; proposes to devise expedients, by repeated investments, to replace the loss, but gives not the remotest intimation of a fraud, nor does the possibility of repelling the effects of the imposition appear to be contem- plated as a resource to avert the ruin he seems so solicitious to avoid. Tested by these circumstances, the relations given by the witnesses on the part of the re- spondents, have little weight with me; nor is it, in my opinion, necessary, in order to dis- credit them, to call in the aid of the testimony given on the part of the appellant. If no wit- nesses had been examined on his part, I should not have been able to resist the conviction which the mere circumstances I have cur- sorily mentioned impress on my mind. There is another point of light in which this matter may be considered, and which would direct my mind to the same conclusion, if those circumstances were less strong, and that is the oath of Moses Lopez. The association of several persons for com- mercial purposes, is derived to us from the law of merchants. It supposes a unity of persons and a unity of interests, represented by the name which they elect to designate their firm. It is evident, that with a set of men so associated, the dictates of policy and justice must, of necessity, require, that the act 519*] of every copartner of the firm, in *all matters relating to their common concerns, should be considered as the act of the whole. If that were not the case collusive separa- tions, or artful appearances of enmity might be held out to serve their purposes, at the ex- pense of those with whom they had dealings. This unity of persons and of interests, and all the consequences derived from that doctrine, they are strictly and rigorously held to at law. I know of no instance where it has been held otherwise, and, in a court of law, it does not lie in the mouth of the firm to disavow the acts or declarations of the persons constitut- ing it. In chancery, the rule is somewhat different; it admits of the exception of a col- lusion between any of them and a stranger, to the prejudice of the firm; but, to separate their interests, the collusion is not to be col- lected from remote intendments, from an exist- ing enmity, and, in my opinion, not even from an express avowal of either of the copartners, unless coupled with acts or declarations of the person with whom he is charged to collude. 408 I can discover nothing in the conduct of the appellant from which a collusion can be rationally inferred between him and Moses Lopez. If no such collusion exists, his decla- rations simply (and here they were volun- tarily made under the solemnity of an oath), must be considered as those of one of the par- ties in interest, under the contract, and operate accordingly. It is said that Moses Lopez, so early as the 28th of May, 1795, transferred his share in the cotton ana indigo, to Isaac Gomez, Jun. , and hence it was inferred that his relation as to this transaction was changed; but though he parted with his share, he remained liable on his contract, for it was essentially necessary to have the approbation of the appellant, in order to dissolve the engagement subsisting on the contract. In a case thus circumstanced, I cannot dis- cover what good consequence can possibly be obtained by referring it to a jury, to determine on the fraud. If they should give a verdict in favor of the respondents on that ground, I *should think that it ought to be set [*52O aside as against evidence. Issues are always awarded in chancery, not at the instance of either of the .parties, but from the volition of the chancellor. This, however, is to be exer- cised in sound discretion, and if circumstances occur which give a controling preponder- ance of testimony on either side, it is his duty to decide according to such pre- ponderance. On this I had some doubt, but I am, upon reflection, convinced that it is his duty to do so, and that if he does not, but re- fers it to a jury, it will warrant an appeal. A reference to a jury may increase, but cannot remove embarrassments. It is not one of those cases which requires a jury to pass upon the matter to inform the conscience. The conscience has already taken a direction from which it cannot be diverted, and the trial of an issue can have no other effect than to de- volve the responsibility of the decision on the jury, if their opinion agrees with that of the chancellor. If it does not, he will, of course, by ordering a new trial, conform the verdict to his own opinion. This would, in its effect, be a nugatory process. It is such a one as, I think, ought not to receive the sanction of this court. The third question appears to present a point of much importance to the jurispru- dence of the State. I am satisfied that the doctrine which has been laid down, showing that the powers of this court extend to the final decision of this cause, on the present ap- peal, is such as will fully justify our pro- nouncing a final decision. It is not necessary to determine how far it would be proper for this court to exercise a jurisdiction which might be considered as original, in contradis- tinction to appellate. The constitution of this court is not calculated, and its members are too numerous for the exercise of the decretal powers of a court of chancery, in the first in- stance. The clashing of opinions, insepara- ble from numerous bodies, must, in many cases, produce a less harmonious result than that originating from the decision of a single person, in matters of so multifarious a kind, as a chancery *cause not unfre- [*521 JOHNSON'S CASES, 1. 1800 Louis LE GUEN v. ISAAC GOUVERNEUR AND PETER KEMBLE. 521 quently presents. This inconvenience is avoided, by confining the exercise of the powers of the court to matters strictly Appel- late. But though this reasoning appears to me very cogent, it is, I think, not applicable to this case. The powers of this court, as exer- cised in dismissing the bill, arise from the subject. If this court decide against the order for the issue, it must be on the ground that it is so clear as to render it unnecessary for the information of the conscience of the court to send it to a jury. It amounts to a declaration that the respondents have not sustained their bill; if so, and it is remitted to the court of chancery, what other effect can it have, than merely to send it through its different stages in that court to a final decree, to produce the same effect which a dismission of the bill would have here? The conscience of the chancellor will not be better informed, when he becomes again possessed of the cause, than he was before the appeal; and if the opinion of this court is to be conclusive upon him, as it will be, if it is expressed, he will formally pronounce a decree conformably to it. If he decides on the evidence, and decides in favor of the respondents, we shall have another ap- peal on that ground, and must ultimately pro- nounce the same decree which, I think, it is now incumbent on the court to do, that the respondents' bill be dismissed. I refrain from saying anything further on the subject of the trial between the respond- ents and Gomez, Lopez, and Rivera, than that, as it was between parties with whom the appellant had no connection, it cannot affect his interests. The fact was, that the two parties adverse to each other in the cause, were united in a common opposition to the appellant; that their interests might be combined to conclude him. The appellant was not obliged to confide his interests to them farther than he has done. His connection with the respond- ents was dissolved. It might, if he had united himself with the respondents, have in- directly *affected his interests. He [*522 was not bound to do it, and the manner of conducting the trial on the part of the re- spondents was not calculated to give him any strong inducement to the measure. I therefore repeat, that I think this does not vary the situation of the parties; and that the bill of the respondents ought to .be dis- missed. A majority of the court were also of opinion, that the order of the chancellor, complained of, should be reversed, and the bill of the re- spondents dismissed. 1 After the court had pronounced their de- cision, Mr. Burr, for the appellant, moved for costs and damages to be assessed against the re- 1. Clinton, S., and Gold, S., were of the same opinion as the Chief Justice. Five of the Senators concurred with Lewis, J., in the opinion that the decree ought to be affirmed, and Spencer, S., was for affirming, except as to the order for an issue, and that the cause should be remitted to chancery. The Reporter regrets that he has not been able to procure the opinions delivered by those who differ- ed from the majority of the court ; but they have got into other hands, or are now lost or mislaid. JOHSSON'S CASES, 1. spondents. He contended, that as the charge of fraud had been found wholly groundless, the appellant ought to be indemnified for the interest of the debt, which had accrued, and for all his expenses over and above the taxable costs. He cited 2 Burr., 1086, 1087; 1 Bro. P. C., 464, 578; 2 Bro. P. C., 576; 3 Bro. P. C., 70, 81. Mr. Hoffman (Attorney-General), for the re- spondents, on the other hand, insisted, that costs and damages are never allowed on de- crees of reversal, and for dismissing the bill. He cited 1 Bro. P. C., 181, 591; 2 Bro. P. C., 15, 286, 398, 404, 456; 3 Bro. P. C., 366; 4 Bro. P. C., 152, 227; 5 Bro. P. C., 466; 6 Bro. P. C., 27, 480, 492; 7 Bro. P. C., 59, 110, 303, 373, 432. He said, that only one case could be found of costs allowed on reversing a decree, which was that of 2 Bro. P. C., 165, and that only allowed the costs of the pro- ceedings in the court below; that when the judgment of the supreme court was affirmed in error in 1798, the interest was allowed on the judgment down to *the time of affirm- [*523 ance, and the whole money was paid into the bank in thirty days thereafter. The court took time to consider of the ap- plication, and on the 28th February, Mr. Justice Benson delivered the unanimous opinion of the court, on the question, in sub- stance, as follows: I have looked into all the cases, and I find this to be the rule on the subject of costs in error. 1. That if judgment be given in the court below against the plaintiff and he bring error, and the judgment in the court below be re- versed, he recovers only the costs of the action below, because the court of errors gives such judgment as the court below ought to have given, and none other; and it would be un- reasonable to compel a person in case of a re- versal, to pay costs for the error of the court below. The cases are express and decisive. (1 Strange, 617; 1 Anstruther, 180, 183; 1 Salk., 262.) 2. If the plaintiff below recover, and the defendant below bring error and reverse the judgment, he obtains no costs, unless it be the costs of the court below up to the judg- ment. All the cases cited by the counsel for the appellant, apply to the costs of the action be- low. There is not a single instance where costs of the writ of error or appeal were given, on reversing the judgment or decree below, for that would be making the defendant in error pay for the wrong judgment or decree of the court below. The case in 1 Bro. P. C., 578, has the appearance of an exception, but it is not one, for there, on the reversal, costs were given conditionally, that the respondents on paying the costs of the appeal, might bring the cause again to a hearing in the court be- low. The case in 2 Bro., 165,* which the * Attorney-General thought against [*524 him, is~not so ; for in that case, on reversing 2. The references to Brown's Parliamentary Cases are to the first edition. In the second edition, published by Mr. Tomlins, there is a new arrange- ment of the cases, to which the references to the first edition are not applicable. The difference will be seen in a table annexed to vol. 8, p. 333. 409 COURT OF ERRORS, STATE OF NEW YORK. 1800 the decree and dismissing the respondent's bill, he was ordered to pay to the appellant the costs of the proceedings in the court below; and that was doing no more than giving such a decree as the court below ought to have given. In the present case, therefore, we are of opinion, that the respondents should pay to the appellant the costs only of the proceed- ings in the court below, up to the time that Following are cases in which the foregoing F;IS cited, so indexed as to show to what partic 'particular pi 'int. Judgment of court of competent jurisdiction, effect, eatamA. Approved 9 Paige, 630; 5 N. Y., 364; 2 Biirb., 597 ; 7 Barb., 242. Discussed 5 Denio.. 29 : 2 Johns. Cas., 156. Distinguished 14 Johns.. 77 : 9 N. Y., 35; 82 N. Y., 559; 52 Barb., 646; 12 Abb. Pr., N. S.. 293. Cited as authority 9 Johns., 245; 2 Cow., 137; 1 Johns. Ch., 51, 98, 466; 1 Paige 47; 3 N. Y., 522 ; 59 N. Y., 216 ; 70 N. Y., 11 ; 13 Barb., 161 ; 15 Barb., 68; 31 Barb., 537; 34 Barb., 156; 43 Barb., 319; 50 Barb., 393 ; 46 How. Pr., 145 ; 60 How. Pr., Ill ; 1 Abb. Pr., 106: 5 Sand. Super., 147; 40 Mich., 511; 50 Ind., 420; 27 Ohio St., 238 ; 28 Ohio St., 601; 1 Biss., 234. Cited 17 Johns., 400; 49 N. Y., 116; 11 Barb., 157; 9 Leg. ODS., 306 ; 4 How., U. S., 223 ; 2 Abb. N. C., 204. 410 the order for an issue was made absolute. It was thereupon ordered, adjudged and de- creed, that the order of His Honor the Chan- cellor be reversed; and that the bill of the re- spondents be dismissed, with the costs in the court of chancery; and it was further ordered, that each party pay his own costs on the appeal. Judgment of reversal. Appellate court, what it will consider and what de- cree tt u'i'H render. Approved 5 Cow., 735 ; 8 Wend., 232. Distinguished 7 Paige, 91. Cited as authority 18 Johns., 560; 34 N. Y., 582; 32 How. Pr., 47; 2 Abb. Pr., N. S., 27 ; 6 Daly, 269. Cited 2 Lans., 383. Costa on appeal. Approved 3 Johns., 553. Cited as authority 2 Wend., 224. Cited 12 Johns.. 58; 8 Daly, 246. New trial. Cited as authority 11 Wend., 234. Court of chancery, duty to decide on facts. Cited as authority 6 Johns. Ch., 257. Judgment of court not of competent jurisdiction. Cited-11 Hun., 324. Res judicata. Cited 4 Hill, 656. Factor's, rexpontribttitu for breach of order*. Cited 20 Wend., 337 ; 65 Barb., 328. Factor's right to seU. Distinguished 45 Ind., 119. JOHNSON'S CASES, 1. [END OF THE CASES IN ERROR.] REPORTS OF CASES ADJUDGED THE Supreme Court of Judicature OF THE From January Term 1799, to January Term 1803, Both Inclusive, TOGETHER WITH CASES DETERMINED IN THE COURT FOR THE CORRECTION OF ERRORS DURING THAT PERIOD. BY WILLIAM JOHNSON, Counselor at Law. Legum interpretes, judices : legum denique idcirco omnes servi sumus, nt liberi esse possumus. CICERO. VOLUME II. CONTAINING THE OASES FEOM OCTOBER TEEM 1800, TO OCTOBER TERM 1801 INCLUSIVE. NAMES JUDGES OF THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, DURING THE TIME OF THE SECOND VOLUME OF THESE REPORTS. JOHN LANSING, Esq., Chief Justice, resigned on being appointed Chancellor, October 28, 1801. MORGAN LEWIS, Esq., appointed Chief Justice, October 28, 1801. EGBERT BENSON, Esq., resigned March, 1801. JAMES KENT, Esq. JACOB RADCLIFF, Esq. JOSIAH OGDEN HOFFMAN, Esq., Attorney-General. CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK, IN OCTOBER TERM, IN THE YEA.R 18OO. TIJNNO AND COX v. LAGUE. 1. Bill of Exchange Demand Notice Protest Agent's Duty. 2. Id. Time of Notice. 3. Id. Excuse Epidemic Time. Where an agent receives a bill in order to obtain payment, he must send notice of non-acceptance and non-payment, with the protests, to the remitter, whose duty it is to give immediate notice to the drawer. If the agent himself undertakes to give notice to the drawer, it will be sufficient, if it be .given as soon, as under the circumstances of the case, it could have been received from the holder. The prevalence of a malignant fever in the city of New York, was held a sufficient excuse for not .giving notice until November of a protest of non- payment made in September. Citations-5 Burr., 2870; ITerm R., 714; Kyd.,76, 79. THIS was an action of assumpsit against the defendant, as drawer of a bill of exchange, dated at Jeremie, April 29, 1798, on Malloby & Durand, of New York, in favor of the plaint- iffs, for $4,866.76, payable sixty days after sight. On the llth of July, 1798, the bill was presented to the drawees, and protested for non-acceptance, and on the 12th September, it was protested for nonpayment. At the trial, R. Lenox, a witness, testified that he was an agent for the plaintiffs, who reside in South Carolina, and received the bill from them; that the defendant, after drawing the bill, came to New York, and the witness, on the first opportunity, gave him notice of the non-acceptance, which was shortly before the 8th August; that the witness afterwards removed with his family into the country, on account *of the yellow fever, which pre- [*2 vailed in the city, and in November, imme- diately after his return, gave notice of the nonpayment to the defendant. It appeared that the defendant was a married man, and had a house in New York; that he went to St. Domingo on business, and returned to New York about the first of August, where he afterwards constantly and publicly resided. A verdict was taken for the plaintiffs for the amount of the bill, with interest and damages, subject to the opinion of the court, on the point whether due notice had been given to the drawer of the non-acceptance and nonpay- ment of the bill. Mr. Troup for the plaintiff. Mr. Harison for the defendant. NOTE. Negotiable instruments, notice of non-ac- ceptance and non-payment, diie diligence, duties of agents. Failure to give notice ; what, aside from acts of par- ties, will excuse. Prevalence of malignant disease. Tunno v. Lague, supra ; 1 Parsons, Notes & Bills, 460, 531 ; Edwards on Bills, 492; Story on Bills, sec. 308; Daniels on Neg. Inst's., sec. 1086. See Roosevelt v. Woodhull, Anth., a5; N. Y. Rev. Stat. (7th Ed.), p. 2343. Unavoidable, overwhelming accident. Hylton v. Shepherd, 6 East, 16 ; Windham Bank v. Norton, 22 Conn., 213 ; Text books above cited ; Bisrelow's Bills & Notes, 374. Such military occupation or disturbance, riot, in- surrection, etc., as virtually stops all business, any ordinary disturbance being insufficient. Polk v. Spinks, 5 Cold., 431 ; Apperson v. Union Bank, 4 Cold., 446 ; Patence v. Townley, 2 Smith's Rep., 221. War or public interdiction of intercourse between country of holder and that of indorser of maker. Griswold v. Waddington, 16 Johns., 438 ; Woods v. Wilder, 43 N. Y., 164; House v. Adams, 48 Pa. St., 261 ; U. S. v. Grossmeyer, 9 Wall., 75 ; The William JOHNSON'S CASES, 2. N. Y. REP. , BOOK 1. Bagley, 5 Wall., 377 ; Scholefleld v. Eichelberger, 7 Pet., 586; Bank v. Gunnell, 26 Gratt., 131; Hopkirk v. Page, 2 Brock., 20. See, however, Leathers v. Com. Ins. Co., 2 Bush (Ky.), 298 : Union Nat'l Bank v. Marr, 6 Bush (Ky.), 615. Death of maker or indorser, duty of holder. See Magruder v. Bank, 3 Pet., 87 ; S. C., 7 Pet., 287 ; Gower v. Moore, 25 Me., 18 ; Caunt v. Thompson, 7 Com. B., 400; Hale v. Burr, 12 Mass., 86; Oriental Bank v. Blake, 22 Pick., 208 ; Merchants' Bank v. Birch, 17 Johns., 25 ; Burrill v. Smith, 7 Pick., 291. Death of holder. See White v. Stoddard, 11 Gray, 258; Bigelow's Bills & Notes, 378. When impediment cease*, duty to give notice re- vives. Morgan v. Bank, 4 Bush (Ky.), 82 ; Peters v. Hobbs, 25 Ark., 67 ; Burden v. Smith, 44 Miss., 552 ; Tardy v. Boyd, 26 Gratt., 631; Farmers' Bank v. Gunnell, 26 Gratt., 139. As to what constitutes due diligence, see note to Stewart v. Eden, 2 Caines, 121 (this edition). As to duties of banks ami other collection agents, see Allen v. Suydam, 20 Wend., 331 ; Allen v. Bank, 22 Wend., 215. 27 417 SUPREME COURT, S^ATE OF NEW YORK. 1800 Per Guriam. The holder of a bill of ex- change is bound to use due diligence to give notice of non-acceptauce, as well as of nonpay- ment, to the drawer or indorser whom he intends to charge. (5 Burr., 2670; 1 Term Rep., 714; Kyd., 76, 79.) Had Lenox been the real holder, he ought to have given notice of the non-acceptance to the drawer before the 8th August, either at his dwelling-house, or if his residence was not known, to have sent it to Jeremie, where the bill was drawn. The prev- alence of the yellow fever would have been a sufficient excuse for a delay of notice of non- payment until November, as there was a stop to all business in the city. But Lenox was an agent of the holder, and his duty extended no further than to give notice to his principal of the non-acceptance and nonpayment, and to transmit the requisite protests, in order that the holder might give notice to the drawer. 1 As the drawer here had notice, before he could possibly have received it from the remitter of the bill, he cannot complain. If the agent undertakes to give notice, it will be good if it be given as early as it could have 3*] been received from *the holder. It would .be too rigorous to require more of an agent in such a case. If the agent does not use due diligence in sending information to the holder of the non-acceptance or nonpayment, the latter may, perhaps, suffer for the negligence of his agent. The plaintiffs are entitled to judg- ment. Judgment for tlie plaintiffs. Cited in 2 Hall, 120. LANSING 0. FLEET, 1. Escape /Sheriff's Voluntarily Suffering Retaking Autliority. 2. Id. Legal Control Assent of Prisoner Collusion. 3. Volun- tary Return. 4. Negligent Escape. 5. Es- cape Remedies Plaintiff*' * Election. 6. Id. Common Law in Relation to. Where a defendant is taken in execution and the sheriff suffers the prisoner voluntarily to escape, he cannot afterwards retake or detain him, without a new authority from the plain tiff; nor will the volun- tary return or assent of the prisoner prevent his liability for the escape. After a voluntary escape, the sheriff cannot lawfully retake or detain a pris- oner, though he may after a negligent escape. 1. See Haynes v. Bifks, 3 Bos. & Pull., 599. Citations. 1 Roll. Abr., 901, 902; 1 Lev., 211; 1 Sid. r 330; 1 Show., 174; 2 Ion., 21; 2 Mod., 136; Hob., 202; 15 Jac., 1; 11 Vin., 26, pi., 8; 2 Lev., 132; 2 Lev., 109, 132; 6 Mod., 183; 3 Com. Dig., 647 E.; 2 Wils., 294; Skinn., 282; Bro., tit., Escape pi., 12, 45; 2 Leon., 96; 2 Leon., 118; 2 Mod., 159; T. Jones, 21; 1 Sid., 330; 1 Vent., 269; 1 Show., 169; 1 Salk., 271; 3 Co., 52, 56; 5 Term R., 25; 1 Show., 169; 3 Keb., 453; 3 Co., 72 b. n. 3; Dyer. 322; 1 Roll. Abr., 921; T. Jones, 21; Roll., 902, s. 8; 11 Vin. v 326; 3 Co., 52; 2 Lev., 189. THIS was an action of debt, brought by the plaintiff, as late sheriff of the city and County of New York against the defendant, one of his deputies, on his bond of indemnity, for an escape. The cause was tried at the July circuit, in 1799, before Mr. Justice Benson. At the trial, the following facts appeared in evidence: On the 8th May, 1798, a ca. sa. issued on a judgment in this court in favor of William Journey against John B. Hicks, which was delivered to Merritt, one of the deputies of the plaintiff, who, on the same day, arrested Hicks, and voluntarily suffered him to go at large, after he had been in his custody about an hour, and Hicks continued at large until 10 o'clock in the morning of the 10th May, when Merritt retook him on the same execution, but Hicks was afterwards seen at large on the evening of the same day. The defendant afterwards arrested Hicks on the same execu- tion, and he escaped by running away from the defendant, but not while on the way to prison. The plaintiff paid the amount of the execution to Journey. Merritt was offered as a witness on the part of the plaintiff, but he was objected to by the defendant's counsel. The judge, however, overruled the objection; and the witness testi- fied that he was in a room with Hick on the 8th May, *and had the execution, but he [*4 did not consider Hicks as in his custody on that day, and suffered him to remain at large; that on the 10th May, he arrested Hicks, and by his request, delivered him, with the execu- tion, to the defendant, who consented to receive him; that the defendant told the wit- ness that he went with Hicks to several places, which consumed considerable time, when Hicks made his escape, and the witness after- wards saw him at large. A verdict was taken for the plaintiff, subject to the opinion of the court on the above case. The cause was argued at the last term by Mr. Riggs, for the plaintiff, and Mr. C. 1. Sogert for the defendant. RADCLIFF, J. The fact that Hicks consent- ed to the second arrest on the 10th May, does NOTE. Escape. What constitutes an escape,. McMichael v. Rapelye, 4 Ala., 383 ; Nail v. State, 34 Ala., 262 ; Freeman v. Davis, 7 Mass., 200; Clap v. Cofran, 7 Mass., 98: Bur- roughs v. Lawder, 8 Mass., 373 ; Cargill v. Taylor, 12 Mass., 319; Day v. Brett, 6 Johns., 22; Van Slyck v. Taylor, 9 Johns., 146; Palmer v. Hatch, 9 Johns., 329; Kellogg v. Gilbert, 10 Johns., 220. IfTiat does not. Commonwealth v. Alden, 14 Mass., 388 ; Wool v. Turner, 10 Johns., 420 ; Martin v. Wood, 7 Wend., 132 ; Hempstoad v. Weed, 20 Johns., 64; Wickelhausen v. Willett, 12 Abb. Pr., 319; 21 How. Pr., 40; 10 Abb. Pr., 164. "\ r oluntaru and negligent escapes, distinction. Lit- tlefleld v. Brown, 1 Wend., 398 ; Lockwood v. Mer- cereau, 6 Abb. Pr., 206. See also Warburton v. Wood, 6 Mo., 8; State v. Eriekson, 32 N. J. L., 421; 418 Bolton v. Cumming_s, 25 Conn., 410; Skinner v, White. 9 N. H.,204; Olmstead v. Raymond, 6 Johns., 62; Wheeler v. Bailey, 13 Johns., 366; Loosey v. Orser, 4 Bosw., 391. After voluntary escape of prisoners confined on final civil process, sheriff cannot retake. Butler v. Washburn, 25 N. H. (5 Fost.), 251 ; Clark v. Cleve- land, 6 Hill, 344; Jackson v. Hampton, 6 Ired. (N. C.) L., 34; Thompson v. Lockwood, 15 Johns., 256. Con- tra if prisoner confined on mesne process. Arnold v. Steeves, 10 Wend., 514; Bronson v. Noyes, 7 Wend., 188 ; Commonwealth v. Sheriff, 1 Grant (Pa.) Cas., 187 ; Stone v. Woods, 5 Johns., 182. After negligent escape sheriff can retake. Butler v. Washburn, 25 N. H. (5 Fost.), 251 ; Colley v. Mor- gan, 5 Ga., 178. JOHNSON'S CASES, 2. 1800 LANSING v. FLEET. not, I think, solely depend on the express testimony of Merritt. The circumstance that on that day he was in the actual custody of Merritt, and also of the defendant, without any resistance, on the ground of their want of authority to hold him, is alone presumptive evidence that he had submitted to that arrest. As there is nothing to countervail this pre- sumption, the objection against the competency of Merritt as a witness, appears to me unim- portant and unnecessary to be considered. The principal question is, whether, after the voluntary escape suffered by Merritt, and the subsequent arrest of Hicks, consented to by him, it was lawful to detain him as a prisoner? If it was lawful, then it was the duty of the defendant to detain him, and he would be liable to the sheriff for the second escape. If it was not lawful, the second arrest must be deemed a nullity, and the defendant in that case would not be liable. It ought to be observed that this is a question between the sheriff and his deputy only, by which the interest of the plaintiff, in the original suit, cannot be affected. The general rules on the subject of escapes, so far as they respect the right of recaption by the plaintiff and the sheriff, appear to be well settled. 5*] *1. In case of a negligent escape, both the plaintiff and the sheriff have a right to re- take the prisoner,but the plaintiff may elect to proceed against the sheriff, who will be liable to him, unless by fresh pursuit he retakes the prisoner, before action brought. 2. In case of a voluntary escape, the plaint- iff may also retake the prisoner, but the sher- iff cannot; and the prisoner may resist any attempt by him for that purpose. (1 Roll. Abr., 901, 902; 1 Lev., 211; 1 Sid., 380; 1 Show., 174; 2 John., 21; 2 Mod., 136.) 3. If the sheriff let the prisoner go by the consent of the plaintiff, neither he nor the plaintiff can retake him. Neither of these positions extend to the case of a voluntary escape, and a subsequent vol- untary return or submission of the prisoner. The right of the plaintiff, however, is un- doubted, that he may elect his remedy, either against the prisoner or the sheriff, notwith- standing the free return of the former, and his submission to the arrest, for as between the plaintiff and the sheriff, nothing can purge a voluntary escape. The sheriff, in all events, continues liable to him, unless he choose to relinquish his responsibility and pursue his remedy against the prisoner. It is in this sense, and in relation to the sheriff only, that the authoities are to be understood, when they say that a voluntary escape cannot be purged. It is also proper to remark that neither the present question, nor any of the rules that have been mentioned, depend on the statute of 8 and 9 Wm. III., which has been adopted here, and was cited on the argument. The plaintiff, be- fore that statute, in all cases of negligent or voluntary escapes, had a right to retake the prisoner, and the statute thus far is in affirm- ance only of the common law. It enacts that if the prisoner escape, by any ways or means howsoever, the creditor may retake him by any new writ, or sue forth any other execu- tion. The only material alteration made by JOHNSON'S CASES, 2. the statute is that the creditor may also have a remedy, by any other species of execu- tion. It appears to me essential to the rights of the plaintiff that the sheriff should be permitted to hold a prisoner who voluntary returns and submits to a legal process, although after a vol- untary escape. He cannot hold him with a view *to his own indemnity, because, by [ *6 being accessory to the escape, he violated the duty of his office, and forfeited all right to the aid of the law. He is thereby made liable to the plaintiff for the whole amount of his de- mand, and, with respect to him, may be com- pletely substituted, in point of responsibility, for the prisoner. But he is the substitute, only at the election of the plaintiff. The latter is not bound to look to the sheriff. He may continue his remedy against the prisoner, and retake him by new process, or, if already in jail, suffer him to remain, and admit him in execution on the former process. If the pris- oner be already in jail, on a voluntary return, and nothing be done to determine the plaint- iff's election to substitute the sheriff, it follows, of course, that the prisoner is again in execu- tion at the suit of the plaintiff. No act of the plaintiff is necessary to that end. The parties are restored to their former situation, unless the plaintiff elect to proceed against the sher- iff; and until that be done, it must be lawful in the sheriff to detain the prisoner. This appears to be a natural and equitable course in relation to all concerned. It gives to the plaintiff a complete redress, against both the sheriff and the defendant, and effectually places the remedy against both in his power. It must be very important to his rights that the prisoner should thus be deemed to be in execution, for he may have good reasons to elect to pursue his remedy against him; but if the sheriff has not the power to hold him, this remedy must again be defeated, unless the plaintiff be able to retake him by new process. In fact, it would lead to the position that the plaintiff can, in such case, have no remedy against the prisoner but by a new writ, which is not warranted by the cases jon the subject. As it respects the defendant himself, no injury is done. His imprisonment is the consequence of his own act, by which he ought to be con- cluded; and there is no reason why the law should interpose to exempt him from it. He is no more an object of favor or entitled to re- lief than the sheriff is entitled to the aid of the law to compel his return. With regard to the sheriff, the responsibility he incurs is a sufficient restraint. Beyond this the *rigor[ * 7 of the law ought not to extend. Neither pol- icy nor justice demands it. It would place him in a worse condition than the prisoner himself, for whose responsibility alone he is bound to answer. I therefore think that the detention of a prisoner, under such circum- stances, ought to be deemed lawful, for the benefit of the plaintiff, and in furtherance of his remedy. If lawful, it was the duty of the sheriff, and, of course, of his deputy, in this instance, to detain him. As between the sher- iff and his deputy, it was also material, for by suffering him again to escape, the sheriff was deprived of the benefit of the plaintiff's elec- tion to hold the prisoner in execution, so far 410 SUPREME COURT, STATE OF NEW YORK. 1800 as his continuing in custody, afforded the op- portunity and the means of making it. The authorities on the subject, I believe, will be found not only to support the sheriff's right thus to detain a prisoner^ but to impose it on him as a duty, and if he neglect to do it, make him liable as for a second escape. I admit there is one case, that of the sheriff of Essex, decided and reported by Oh. J. Hobart (Hob., 202; 15 Jac., 1), which is opposed to this doctrine. It was there ruled that by a voluntary escape the execution was so utterly discharged that if the prisoner, afterwards, voluntary returned and contined in jail till the time of a new sheriff, and was then again suf- fered to escape, the new sheriff was not liable, even though the plaintiff allowed the prisoner so to return and submit to the execution. But this case has been repeatedlv overruled, or denied to be law. (1 Roll. Abr., 901, 902, B; 10 Car., 1; 11 Vin., 26, pi. 8, S. C. In Viner it is if he return.) 1st. By a case in Roll. Abr. .where it was resolved that if A be in execution at the suit of B and escape with the consent of the sheriff, and afterwards he return, or the sheriff retake him, and keep him in prison, he shall again be in execution to B, for although B may bring an action against the sheriff for this voluntary escape, yet this is at his election, and it may be that the sher- iff is incompetent to make a recompense. 2d. By Ch. J. Hale, in James v. Pierce. (2 Lev., 132; 27 Car., II.) In that case there was a voluntary escape from the warden of the Fleet, and a voluntary return of the prisoner. A new warden was appointed and a second es- cape permitted. It was resolved that an ac- 8* ] tion lay against *the new warden; and it is there held that the plaintiff might, at his election, take the prisoner to be in execution, and charge the new warden for the last escape or admit him to be out of execution, and charge the old warden. 3d. By the case of Lenthalv. Lenlhal (2 Lev., 109; 26 Car., II.), where there was a voluntary escape from the marshal, and a voluntary return. The mar- shal died, and the office descended to his son, who again suffered a voluntary* escape, and it was resolved by the whole court, after con- sidering the cases above cited from Hob. and Roll., that the action well lay against the son for a second escape. Again, in the case of Grant v. Southers, (6 Mod., 183; 3 Anne.) Grant had been in custody of the former marshal, who volunta- rily allowed him to escape. Grant, afterwards, came voluntarily and returned, and being found in custody by the succeeding marshal, was detained by him; upon which Grant brought an action of false imprisonment against the new marshal. The court granted an imparlance till the next term, but at the same time, affirmed that it was lawful to detain him, and that to suffer him to go at large would be an escape in the second mar- shal. It appears that Comyns, whose name adds a sanction to these authorities, had the same view of the law on this subject. In his Di- gest (3 Com. Dig., 647, E\ he says, "If a person escapes, and afterwards returns to the prison, the plaintiff may admit him in execu- tion, although he has a remedy against the 420 sheriff." And again ( Ibid.), '"so though the escape was voluntary by the jailer and with- out the plaintiff's consent." From the tenor of these cases, it appears that the prisoner is considered to be again, of course, in execution, at the suit of the plaintiff, unless the latter evinces his intention to aban- don that remedy by proceeding against the sheriff for the escape. It is certain that it is not necessary for him to take out a new writ against the prisoner, but may admit him to be in execution on the former process. This is the express language of several of the cases. The plaintiff may, both by common law and the statute, take out such writ; but it would be absurd to compel him to do it when his *case does not require it. Generally, [*O however, a new process might be necessary ; for the sheriff has no right to retake the debtor without it, and his voluntary return is seldom to be expected. The circumstance that in most of the cases which have been mentioned, the question as to the legality of the prisoner's detention has arisen on a second escape suffered by a subse- quent sheriff, is, in my opinion, immaterial to its merits. The case from Rolle is, however, not that of description. It was there decided in relation to the same sheriff. But it cannot be important. If the imprisonment was orig- inally unlawful, it cannot be made lawful by the change of keepers. The rights of the plaintiff, or the power of the sheriff, or the personal liberty of the defendant, cannot de- pend on a circumstance like this. It must be obvious, too, that the question can seldom arise, except where there is a change of the sheriff; for with respect to the same sheriff a second escape cannot be material when he is equally liable for the first. There is, I believe, no subsequent case which contradicts this doctrine, unless that of Raven- scroftv. Eyles (2 Wils., 294) be so considered. That was a voluntary escape on mesne process, and a voluntary return by the prisoner. The plaintiff proceeded to judgment, but not to execution, and then sued the warden for the previous escape. The question submitted to the court was whether the plaintiff, having proceeded to judgment, could^ maintain his action? The court determined 'that he could, and in reasoning on the subject, they say that it being a voluntary escape, the jailer could not afterwards retake and detain him for the same matter; that the plaintiff might retake him by an escape warrant, but had his option to proceed as he pleased, either to judgment and execution against him, or against the warden; and yet they add that the prisoner was no longer in jail at the plantiff's suit; and although the plaintiff might lawfully proceed to judgment, he could not charge him in exe- cution. This case appears to me obscure and contradictory, unless *the court intended P1O to be understood that the plaintiff, in order to charge him in execution, was obliged first to retake him (although already in jail) by an escape warrant. If so, the remedy by an es- cape warrant being founded on the statute of Anne (1 Anne, ch. 6), which is not adopted here, can have no application to the present case. The case of Key and Brtggs (Skinn., 582), there cited to be in point, does not sup- JOHJJSON'S CASES, 2. I SOU LANSING v. FLEET. 10 port that position; and, besides, this mode of redress by the plaintiff, questionable as it may be, was not connected with the matter sub- mitted to the consideration of the court. It was sufficient for the purpose of that decision to declare that after a voluntary escape on mesne process, the plaintiff, although he pro- ceeded to judgment, might still maintain his action against the warden. I think, therefore, this case does not bear with any weight on the- present question. On the whole, I am of opinion, both on principle and the authorities on the subject, that the second arrest being submitted to by Hicks, was lawful, and, of course, that his subsequent detention by the defendant was equally lawful; that the interest of the plaint- iff was materially concerned in keeping Hicks in custody, and that it does not lie in the mouth of this defendant to excuse himself by the previous default of Merritt, whose delin- quency cannot purge his own ; and, of course, that his suffering the second escape was a breach of his bond of indemnity, and render- ed him liable to this action. KENT, J. The question is, whether, upon the facts stated in the case, the defendant is | responsible to the plaintiff upon his bond. By the common law, as understood before and during the reign of Elizabeth, a volun- tary escape of a prisoner in execution, com- pletely and forever discharged him from the debt, so that neither the plaintiff nor sheriff could retake him for the same demand. (Bro., tit. Escape, pi. 12, and 45; Linacre and Rhode's case, 2 Leon., 96; Philips and Stone's case, 2 Leon., 118.) Thelawwasafterwardschanged.or understood differently, and there were repeat- 1 1*] ed decisions *in the reigns of Charles II. arid of William and Mary, that, after a volun- tary escape, the party was entitled to new pro- cess against the debtor, and was not confined exclusively to his remedy against the sheriff, who might, perhaps, be unable to indemnify him. (2 Mod., 136; T. Jones, 21; 1 Sid., 330; j 1 Lev., 211; 1 Vent., 269; 1 Show., 169; 1 Salk., | 271.) The statute of 8 and 9 Wm. III. (ch. | 27), gave the party the like remedy of further j process against the debtor's person, as well as j of process against his property, after a volun- j tary escape; and it was, therefore, in part, declaratory of the law, as antecedently re- ceived and established. But neither the decis- ions previous to the statute, nor the statute which pursued and sanctioned them, im- paired the plaintiff's right of action against the sheriff, or gave the sheriff any authority to retake the prisoner upon the original pro- cess. The law in that respect continued the same as before, that, after a volunary escape, the authority of the sheriff over the prisoner is gone, and he cannot retake or detain, without new authority from the plaintiff . (3 Co., 52, 56; Hob., 202; 2 Wils., 295; 5 Term Rep., 25; 1 Sid., 330; 1 Show., 169; 1 Vent., 369.) Some of the cases speak of a prisoner upon a volun- tary return, after a voluntary escape, as again in execution; but it will appear, upon an ex- amination of those cases, that they all termi- nate in this conclusion, that he is to be deemed so, at the election of the plaintiff, and for his benefit, and not at the election of the sheriff. JOHNSON'S CASES, 2. It was said, arguendo, in the case of James \. Pierce (1 Vent,, 269; 3 Keb., 453), and seems to have been agreed to by the court, that al- though the plaintiff may elect, yet, until he makes his election, the prisoner cannot be said to be in execution; and Hale, in giving the opinion of the court, said that if the prisoner should bring trespass against the jailer for being detained after a volunary escape, the jailer could not defend himself. The same doctrine was laid down in the case of Eaten- scroftv. EyUs(2 Wils., 294); and Ch. J. Wil- mot observed that a prisoner, when voluntarily suffered by the jailer to escape, is instantly at large, and that the jailer cannot retake and detain him for the same matter, and that, although *he voluntarily returns, he is not [* 1 2 a prisoner at the plaintiff's suit, even if he is locked up every night. All the improve- ments, since the reign of Elizabeth, upon the law of voluntary escapes, have been made for the exclusive benefit of the plaintiff; none of them have been intended to relieve the sheriff in any respect from the consequences of his tort. The only case that looks like a qualification of the law, as I have stated it, is that of a voluntary escape and return, and continuance in prison until the succession of anew sheriff. In that instance it is decided (2 Lev., 109, 132; 6 Mod., 182; contra, Hob., 202) that the new sheriff is bound to detain the prisoner, and is liable for his escape, because the plaintiff has his election to consider him again in execution. If this be a legal distinction, the reason of it may be that the prisoner comes regularly, and by color of law, to the custody of the new sheriff, which is sufficient to justify him to detain. The new sheriff is charged with the custody of all prisoners delivered over by his predecessor, or that are in jail, if his pred- ecessor die in office; and the books accord- ingly say (3 Co., 72, b, n. 3) that no mischief arises to a new sheriff, if he keep all the prisoners well until he hath perfect notice of all the executions. The cases assign as one reason for the right of action against the new sheriff, that the plaintiff is never to be with- out a remedy; and if the old sheriff be dead, his right of action against him, being personal, is dead also (Dyer, 322; 1 Roll. Abr., 921; T. Jones, 21); or if the plaintiff had affirmed the prisoner in execution, during the time of the former sheriff, then all remedy against him would equally have ceased. In these instan- ces, unless the successor was responsible for all the prisoners turned over to him, the plaint- iff might be left remediless. The conclusion which I draw from a re- view of the numerous cases upon this subject, and from whicB I have endeavored to extract the substance, results in these propositions: *lst. That after voluntary escape, the [*13 sheriff who permitted the escape cannot retake or detain the prisoner without authority from the plaintiff. That all his legal control over the prisoner ceases by his own wrong, and no act of his, and no assent of the prisoner, with whom he must be deemed in collusion, can help him. The law will not help a sheriff to retake or detain a prisoner after a voluntary, although it may after a negligent escape. This rule is extremely sound in principle, and salu- 421 13 SUPREME COURT, STATE OF NEW YORK. 1800 tary in its tendency, to prevent any collusion between the sheriff and his prisoners, and to secure to the public the faithful and vigorous execution of process. 2d. That the plaintiff shall never suffer for the sheriff's default. The law is active to help him, and accordingly gives him his elec- tion to charge the sheriff, or to pursue the de- fendant with fresh process; and if the defend- ant has voluntarily put himself in prison again, instead of fresh process, which would be use- less, he may detain him, by affirming him to be again in execution. And, as all the au- thority of the sheriff over the prisoner, subse- quent to a voluntary escape must be derived from the act of the plaintiff, it follows that until such fresh process is received, he cannot, in the one case, retake, and, that until notice is given of the plaintiff's election to hold, he cannot, in the other case, detain the prisoner. There is no evidence of any such election in the case before the court. The sheriff must be considered as having paid the debt, by rea- son of the first escape, and he was not injured by the act of the present defendant, who had no lawful authority to detain the prisoner. Whether Hicks was, or was not, voluntarily in custody a second time, is, therefore, imma- terial, and judgment ought to be rendered for the defendant. BENSON, J. The plaintiff was sheriff, and the defendant and Merritt were his deputies. Merritt having Hicks in custody on execution, voluntarily suffered him to escape. Hicks was, afterwards, voluntarily in the custody of 14*] the defendant, *and, as intended, on the execution, and he then escaped from the de- fendant. The plaintiff has since paid to the party the amount of the execution, and has thereupon brought the present suit against the defendant on his bond of indemnity, and a verdict has been taken for him, subject to the opinion of the court on the question whether the defendant could lawfully have detained Hicks? The law on this question is conceived to lie within a very narrow compass. "If A be in execution at the suit of B and escape with the consent of the sheriff, and afterwards the sheriff retakes him, and keeps him in prison, he shall be in execution to B, for although B may bring an action against the sheriff for this voluntary escape, yet that is at his election, and the party in execution shall not by his own wrong put B to his action against the sheriff, contrary to his will, and it may be that the sheriff is not able to give him recompense. So adjudged on an audita querela by A against B brought on this surmise." (Roll., 902, s. 8.) In the same case, as found in another book, it is said that A "returned to the prison." (11 Vin., 326.) "If the prisoner escape of his own wrong, the sheriff may take him, and keep his body under custody till he hath agreed with him, or may have an action on the case for his tortious escape, and he shall never have an audita querela against the sheriff; but it is otherwise when he escapes with the consent of the jailer, for then he cannot take him again; and in such case he shall, for his discharge, have an audita qutrefa." (3 Coke, 52.) 422 If the defendant will return and remain in prison until a new sheriff is made, and be then turned over to the new sheriff, he shall be. so far in execution as that if he should escape again, the plaintiff may have his election; either to take him to have been in execution, and charge the new sheriff for the last escape, or admit him have been out of execution, and charge the old sheriff; for, perhaps, the old sheriff may not be responsible, or may be dead; and because it would be mischievous if the new sheriff might excuse himself by saying that the defendant was not a prisoner, and so he could not detain him; for sheriffs permit prisoners *in execution to go out on [*15 security, and when they are sued they plead a retaking on fresh suit, and so the prisoners go out and return at their pleasure, and if the new sheriff may, notwithstanding he had the defend- ant actually in prison, excuse himself in this way, that the old sheriff permitted a voluntary escape, all the creditors of the prisoner who was put there in the time of the old sheriff would be defrauded; for it will be very easy for the new sheriff to prove a voluntary escape by the old sheriff, when it might not have been in the power of the creditor to have proved it to have been voluntary." (2 Lev., 189, 132.) "Although the escape is voluntary, yet debt (on the judgment) will lie against the party who escapes, and a scire facias will also lie on it against him." (1 Vent., 269.) "On an escape against the will of the sheriff, either the plaintiff or the sheriff may retake. On an escape with the consent of the sheriff, the plaintiff only hath remedy to take, and not the sheriff." (1 Show., 177.) The law in refer- ence to the point or question in the present case, as collected from these authorities, ap- pears to be. 1st. That, as it relates to the plaintiff, there is no difference whether the escape is voluntary or tortious, and that he has the same remedies in the former, as in the latter case: either he may take out new process, or, if the defendant should be in custody without new process, he may then, as it would seem, by some other act, affirm him still to be in execution, or he may bring an action of debt on the judgment; or revive it by scire facias; or bring an action for the escape against the sheriff; and without be- ing liable to an audita querela, in the mean- time, before he shall have elected between these several remedies. But 2d. That as it relates to the sheriff, there is a difference in the two cases; for that where the escape is tortious the sheriff has every req- uisite remedy; either he may retake the de- fendant, and detain him, till he is indemnified; and also, being in the meantime liable to an aud- ita, querela; or, he may elect not to retake him, but, to bring an action against him for the escape; on the contrary, where the escape is *voluntary he has no remedy; he cannot, [*16 without new process by the plaintiff, retake the defendant, and even if the defendant should voluntarily return into custody, yet he cannot, unless the plaintiff will affirm him to be in exe- cution, detain him, and if he should so detain the defendant, an audita querela will lie against him. 3d. If the defendant, however, shall be in JOHNSON'S CASKS, 2. 1800 THE EXECUTORS OF VAX RENSSELAER y. THE EXECUTORS OP PLATNER. 16 prison when a new sheriff shall happen to come into office, and be turned over to the new sheriff, that the new sheriff has then a right to detain him; and the reason with the law for implying this right in the-new sheriff, is for the sake of the correlative duty which would then be im- plied in him, to detain the defendant, in order thereby not only to give the plaintiff an addi- tional surety in the event of a second escape, but also to prevent the fraud to which he would otherwise be exposed; so that it is in- tended for the advantage and safety of the plaintiff, and not for any emolument or other benefit to the new sheriff, and certainly not for any remedy to the old sheriff. Indeed, the law cannot, consistently with itself, interpose for the sheriff, when there has been a voluntary escape; for the escape being to be imputed to him as his own fault, it, is fit he should be left to suffer the consequences of it. It remains to be noticed that the defendant reserved a ques- tion as to the evidence of the fact, whether, when Hicks came into his custody, he came voluntarily; but if the law is, as has been stated, that the defendant, in whatever manner he might have acquired the custody of Hicks, without new process by the party, could not lawfully have detained him, then the fact itself is immaterial, and, consequently, the consideration of the evidence of it may tie omitted. I am therefore of opinion that there must be judgment for the defendant. LEWIS, J., was of the same opinion. LANSING, Ch. J., being related to the plaint- iff, gave no opinion. Judgment for the defendant. Reviewed 1 Wend., 403. Cited in 15 Johns., 259; 23 Hun., 419; 6 Abb., 207. 1 7*] *THE EXECUTORS OF VAN RENS- SELAER The EXECUTORS OP PLATNER. 1. Annual Rent Reserved Death of Testator Rent Subsequently Accrued Covenants Re- covery. 2. Several Counts Some Bad Dam- ages Entire Discrimination. 3. Covenants Action on. 4. Damages Claimed Greater than appears to be due by Declaration Verdict Presumption. Where R. granted and demised land to P. and his heirs, executors and administrators, reserving an annual rent, which P., for himself, his heirs, execu- tors and administrators, covenanted to pay on the first day of May in each year, it was held that the executors of R. could not recover rent which ac- crued subsequent to the death of their testator; ali- ter, for rent due previous to the testator's death. It seems that an action of covenant will lie against the executors of the lessee, on such a covenant, though the land had passed, by act of law into other hands. NOTE. Rent accruing after death of decedent goes tn heir. Wright v. Williams, 5 Cow., 501 : Van Rens- selaer v. Hays, 19 N. Y., 68; Fay v. Holloran, 35 Barb., 295; Hunter v. Hunter, 17 Barb., 25. See Marshall v. Moseley, 21 N. Y., 280. Id. before death, of decedent, to executor or admin- istrator. N. Y. Rev. Stat. (7th Ed.), 2295. JOHNSON'S CASES, 2. Citations 2 Lev., 57; Poph., 209; Cro. Car., 569, 629, 490; 5 Com., tit. Pleader, ch. 84, p. 376 &c.; Doug., 703; 1 Ld. Raym., 329; 2 Ld. Raym., 1382; Aud., 246; Carth., 96; Cro. Jac., 522;. Cro. Car., *188; 1 Sid., 402; Hob., 188; Salk., 309; 3 Mod., 26; 1 Wils., 4; 2 Burr., 1190, 1195, 1197; 1 H. Bl., 444; 4 Term R., 98; 1 Ball. , 307; 3 Mod., 326; Cro. Car., 522; 2 Burr., 1190, 1196; Co. Litt., 162 a. Statute 32, H. VIII., ch. 37; 1 Vent., 175; 2 Keb., 831; 2 Bac. Abr., 539; 1 Ld. Raym., 246; Carth., 96: Sh.. 1094. THIS was an action of covenant. By an indenture, made the 12th January, 1774, John Van Rensselaer granted and demised to Jacob Plainer, his heirs and assigns a farm in Claverack, in the County of Columbia, to have and to hold, &c., unto the said Jacob Plainer, his heirs, executors, adminis- Iralors and assigns, forever, yielding and paying, &c., and the grantee for himself, his heirs, executors and admin islrators, covenant- ed lo pay Ihe renl. Plainer died in 1775, and Van Rensselaer on 22d February, 1783, having made his will on the 20th February, 1783. The present suit was by the execulors of Van Rensselaer, lo recover Ihe renl due from Ihe Isl May, 1774, lo Ihe 1st May, 1783. A verdict having been found for the plaint- iffs, Mr. Spencer, for the defendants, moved in arrest of judgmenl on Iwo grounds. 1st. Because no action lies against execu- tors for renl which accrued after the death of the teslator, who was lenanl in fee. 2d. That the execulors of Van Rensselaer have recovered, quasi execulors, for renl due subsequenl lo Ihe death of Ihe testator. Mr. Emott for the plainliffs. RADCLIFF, J. This is an aclion'of cove- nanl, for renl due lo Ihe leslalor of the plaint- iffs, which accrued on an estate in fee, subse- quent to the death of Ihe def endanls' testa- lor. A molion has been made in arresl of judgmenl on Iwo grounds. Isl. That the plaintiffs have claimed and recovered rent, which accrued subsequent to the death of their testalor. 2d. Thai Ihe recovery is for renl which ac- crued subsequenl to Ihe death of the defend- ants' leslator. *As to the first, there is no doubt that [*18 where, in an action of covenant, or in any ac- lion sounding in damages, the plaintiff claims more damages than on the face of his declara- tion appears to be due, it will not vitiale, es- pecially afler verdicl (2 Lev., 57; Poph., 209; Cro. Car., 569, 629, 499; 5 Com. tit. Pleader, ch. 84, p. 376, &c.), for the amount of the dam- ages being ascertained by the jury, it is lo be presumed Ihey were assessed according lo Ihe proof. Il is then a subject of evidence, and of compulation as to amount only, within the plaintiff's righl of action, and properly within the province of a jurv. But where several counts or causes of aclion are staled, and any one of Ihem is bad, and Ihe damages enlire, Ihe rule is settled, in civil cases, lhal Ihe court cannol discriminate, or give judgmenl for Ihe whole. (Doug., 703.) So where Ihe righl of aclion accrues periodically, or depends on time, if the plaintiff's declaration embraces a period for which he cannot be entilled to re- cover, and Ihe damages are enlire, il is equally oul of Ihe power of Ihe courl to distinguish the good from the bad, or to give judgment for the whole. (1 Ld. Raym., 329; 2 Ld. 423 18 SUPREME COURT, STATE OP NEW YORK. 1800 Raym., 1382; And., 246; Carth., 96.) The time, in such cases, is material, and consti- tutes a part of the causeof action, and there- fore cannot be rejected as surplusage. In the present case the plaintiffs as executors, have claimed one year's rent which fell due on an estate in fee, subsequent to the death of their testator. It not being a case of apportion- ment, they clearly cannot recover for any part of the year's rent. It is, however, demanded in the declaration, as a distinct and substan- tive cause of action, and the damages are en- tire. The objection, therefore, on the face of the record, I think is fatal to the plaintiffs' action; but if it can appear from the judge's notes on the trial that the plaintiffs claimed and recovered for the previous rent only, ac- cording to the modern and more liberal prac- tice of our courts, I am inclined to allow the verdict to be altered or amended, agreeable to the truth of the case. 2d. As to the second objection, the authori- ties are numerous and decisive that this action will lie on an express covenant, against the lessee and his executors, &c. , though the breach be committed while a third person is in posses- 19*] *sion, and is recognized as tenant by the lessor. (Cro. Jac., 522; Cro. Car., 188; 1 Sid., 402; Hob., 188; Salk., 309; 3 Mod., 326; 1 Wils., 4; 2 Burr., 1190, 1195, 1197; 1 H. Bl., 444; 4 Term Rep., 98; 1 Dall., 307.) The les- see continues liable, and also his executors, to the extent of their assets, on the ground of the express covenant, so long as a privity of con- tract remains. That privity exists in the present instance; the covenant is express, and the same rule must be deemed to apply. I am therefore of opinion, if the verdict can be amended, that the defendants take nothing by their motion, otherwise, that the judgment be arrested. KENT, J. Two questions were raised at the argument in support of the motion: 1st. That no action lies against the execu- tors for rent accrued subsequent to the death of their testator. 2d. If it did, that the executors of Van Rensselaer have recovered, quasi executors, rent accruing since their testator's death. With respect to the first question, it appears to me from an examination of the cases, to be a settled rule that covenant will lie on a cov- enant in deed against a lessee, notwithstand- ing a third person be at the time the actual tenant, and the lessor has recognized him as such; and against his executors, notwithstand- ing he may have assigned in his lifetime, and the rent accrues subsequent to his death. The reason given for the rule is this, that the priv- ity of contract of the testator is not deter- mined by his death, and the executor shall be charged with all his contracts, so long as he has assets. (3 Mod., 326.) In another case (Cro. Jac., 522), it is said that in covenants en fait, a covenantor and his executors are always chargeable, and that the executors are not chargeable by reason of the privity of con- tract, but by reason of the covenant. But, though some cases may differ in assigning the reason of the rule, they all concur in the rule itself. There is no instance, however, that I have met with, of a case exactly like the 424 present, where the covenant for rent was upon an estate in fee. They are all upon terms for years, and it seems, accordingly, to be severe to apply the rule to the present case; for here the executors or the personal *estate receive no consideration for the [*2O payment of the rent, since, on the death of Plainer, the estate must have descended to the heirs-at-law. In answer to this objection, I observe that the responsibility of the executors to pay rent, accruing subsequent to their testator's death, is not placed upon the ground that they have the fund in hand, but upon the ground of the express covenant of their testator, from which no act that he can do will discharge him, or discharge them, so long as they have assets. There is a strong case to this effect. Enyif Ex- ecutor v. Donniitthorm's Executors (2 Burr., 1190). It was a suit in covenant for rent, on a joint lease to the testator of the defendant, and a third person, and the testator died, even before the commencement of the term, so that the whole term, and the benefit of it, survived to the other lessee. It was a lease for fifty years, and the same objection was made that I have suggested. "It looks very odd," said Mr. Jutice Denniston (2 Burr.. 1196), "that when one of the lessees dies, and the interest STirvives to the longest liver of them, yet the other's representatives should be bound by the covenants, though no benefit remains to them." However, on further consideration, the court were unanimously of opinion that the plaintiff was entitled to recover for rent sub- sequent to the death of the defendant's testa- tor, although the estate was, by act of law, cast into the hands of another. The recovery was founded upon the express covenant, and not upon a charge, resulting from the benefit of enjoying the land. As to this suit, so far as it respects the right of the plaintiffs, two points arise for inquiry: whether they can recover, in an action of cov- enant, rent in arrear at their testator's death, and if so, then whether they can recover rent due subsequent to his death. 1st. It is said that at common law, ex- ecutors had no remedy for rent in arrear in the lifetime of their testator, because they could not represent their testator, as to any contracts relating to the freehold. (Co. Litt., 162, a.) This was remedied *by the statute of 32 H. VIII. (ch. 37), [*21 which gave them a remedy by distress, and by the action of debt. It ought to be observed that both these remedies are founded on the privity of estate, and that when the books say that executors had no remedy at common law, they must be understood to mean none result- ing from that privity. I have no doubt they were always entitled to a remedy on an express covenant for rent, for that was a personal contract, independent of the freehold, as much so as if the testator had given a bond for the rent, payable by in- stallments. We find cases in which executors have been allowed to bring an action of covenant, on a covenant contained in deed, although the same was connected and run with the freehold. (1 Vent,, 175; 2 Keb., 831; 2 Bac. Abr., 539.> JOHNSON'S CASES, 2. 1800 THE DEVISEES OF VAN RENSSELAER v. THE EXECUTORS OF PLATNER. This was not a suit for rent, and yet, equally with the present suit, it came within the reason of the objection to suits at common law, by executors for arrearages of rent, to wit, that they could not represent their testator as to any contracts relating to the freehold. I conclude, therefore, that where there is an express cove- nant for rent, the executor is not confined to the statute remedies by distress and debt, but may resort to a common law remedy on the cove- nant. 1 2d. As to the second point, it is equally clear that the executor can only go for rent due and payable at his testator's death, where the rent, as in the present case, goes, on the testa- tor's death to his heirs. The rent here was payable yearly, on the 1st May in each year, and this not being a case of apportionment, in respect to time, it is certain that the executors have declared for one year's rent more than they were entitled to. 8 This claim being a substantial ground of action, and material to the damages, and the damages, by the verdict 22*] being entire, the judgment *must be arrested, unless we have sufficient matter by which we can intend that no damages were fiven for the claim of the last year's rent. (1 ,d. Raym., 329and246; Garth., 96; Sh., 1094.) But no such matter is shown; on the contrary, it appears by the judge's notes that damages were given for the last year, and, of course, the judgment must be arrested. 3 BENSON, J. , and LEWIS, J. , were of the same opinion. LANSING, Ch. J. This is an action of cove- nant for the recovery of rent. A motion has been made in arrest of judg- ment. Because, it appears that the plaintiffs claim as executors, and have recovered rent accrued after the death of their testator. The plaintiffs declare on an indenture, made between John Van Rensselaer and the defend- ants' testator, by which the former granted in fee to the latter, certain lands, reserving an annual rent, payable on the first day of May in every year. It contains a covenant, by which the grantee binds himself, his heirs, executors, administrators and assigns, to the payment of the rent. The declaration states that John Van Rensse- laer, the plaintiffs' testator, died seized of the rent on the 20th day of February, 1783, and that the last year's rent became due on the first day of May, 1783. The 18th sec. of the statute respecting rents, which re-enacted the 4th sec. of the 37th chap- ter of the statute of 32 Hen. VIII., does not touch this case; that statute is intended merely to enable the executors, in the cases mentioned in it, to sustain an action of debt for the re- covery of rent, which they were not competent to recover at common law. 1. See 1 Saund., 241, b. note 5, 6. 2. As to apportionment of rent, see Woodf all's Tenant's Law, 248, et sea; 10. Co., 128; 1 Salk., 65; 1 P. Wms., 392; 2 P. Wins., 176, 501; Laws of N. Y., llth seas., ch. 36, sec. 27 (vol. 1., p. 144.) 3. Where matter is insensible or void, and not of the gist of the action, the court will intend that no damages were given for it. 1 Str., 1094, 245; Cro. Jac., 664, 665; 1 Ld. Raym., 146, 976; Willes, 443; 2 Saund., 171, O, note 1; 2 Johns. Kep., 283, 442. JOHNSON'S CASES, 2. *But this action is founded on ac [*23 express covenant, and the executors of the testator only representing his personal interests, must necessarily deduce their right to recover from the testator personally, and cannot sus- tain their action on their privity of estate, which devolved on the heir or devisee of the testator. It is, therefore, clear that the executors can- not go for rent accrued after the testator's death; but they may well sustain a suit for the rent accrued previous to the death of their testator. The grant on which the rent is reserved is dated the 12th day of January, 1774. The first rent is payable, by the terms of the grant, on the first day of May, 1774, and the rent accruing thereafter, on the first day of May in every year. The plaintiffs' testator is averred to have died on the 22d day of February, 1783. The plaintiffs declare for nine years rent, and in the declaration is contained a particular specification of the several years for which the rent remained unpaid. The last year's rent claimed, is alleged to have become payable on the first day of May, 1783. Introductory to this specification in the plaintiffs' declaration, is an averment, that from the first day of May, 1774, to the first day of May, 1783, inclusive, the rent remained un- paid; thus excluding the first year's rent, pay- able on the first of those days, and including one year which did not become payable till after the plaintiffs' testator's death. The inconsistency between the general aver- ment and the particular specification might be considered as cured by the verdict, but the in- troduction of a claim to damages on a sub- stantive cause of action, which cannot be sus- tained after a general verdict, it is laid down as settled, is good cause for arresting judgment. It was suggested, in the course of the argu- ment, that "the court ought to infer that the plaintiffs' recovery was limited to the right they proved on the trial. *It appears, however, upon recurring [*24r to the notes of the judge. who presided at the trial, that damages were given for ten years' rent. This mtendrnent cannot, therefore, be admitted. Upon the whole, I am of opinion that the judgment in this case must be arrested. Judgment arrested. Distinguished 19 N. Y., 18. Cited in 26 N. Y., 564; 35 Barb., 296; 7 How., 23. THE DEVISEES OF, VAN RENSSELAER THE EXECUTORS OF PLATNER. Annual Rent Reserved Action of Covenant Rent in Arrear. Where an estate in fee is granted, reserving annual rent, the devisees of the grantor cannot maintain covenant against the executors of the grantee or tenant in fee, for rent in arrear. NOTE. See preceding case and note. 24 SUPREME COURT, STATE OF NEW YORK. 1800 37, Cro THE facts in the present case were similar to those in the preceding, except that the devisees claimed only from the 1st of May, 1783, or subsequent to the death of the devisor. The motion in arrest of judgment was argued 2 Mr. Spencer, for the defendants, and Mr nott, for the plaintiffs. LANSING, Ch. J. , delivered the opinion of the court: This is an action of covenant for rent. The defendants have moved in arrest of judgment. 1st. Because the plaintiffs cannot legally sus- tain this action as devisees, and, 2d. Because the defendants are not liable, the estate on which the rent is charged having passed to the heir. Neither the statute of 31 Hen. VIII. (ch. 1) or 32 Hen. VIII. (c. 37), re-enacted among the revised laws of this State, apply to this case. - act, commonly called the Ten Pound Act, it is provided that the justice shall grant execution, &c., against the goods and chattels, and for want of sufficient goods and chattels, against the body of the defendant. By the 15th sec- tion of the Act for the Relief of Debtors, with respect to the imprisonment of their persons, it is declared that no person, having a family, not being a freeholder, should be imprisoned by virtue of any execution, to be issued by virtue of the-former act, and the form of the execution is directed to be against the goods and chattels only. In the present case the plaintiff was an in- habitant of Albany, having a family, and not a freeholder. He has, therefore, been illegally imprisoned. He has sustained an injury, and his remedy must be by an action against the party or his agent who issued the execution. Justices of the peace, in making out process, act ministerially, as distinguished from their judicial acts. They act both as judge and as clerk, and in the latter capacity may, and, as to executions, they generally do, act as agents for the party. Mere ministerial officers who, as such, issue or execute process, cannot, nor ought to be responsible as long as the court from which it issues has general jurisdiction to award such process. But the party who- sues out the process does it at his peril and he is responsible. (Doug., 676; 3 Wils., 346.) Some difficulty occurred in the construction of the acts which have been mentioned, as to the power and duty of a justice, in cases like the present. A defendant before him, under such circumstances, is exempted from impris- onment by the provision contained in the last act, but no mode is prescribed, by which the facts that entitle him to this exception are to- be proved or ascertained. No mode can be supplied or assumed by the justice, for he can possess no power, nor adopt any course of pro- ceeding, by construction or implication. Yet it is essential, that the justice, when acting with good faith, should be protected, for it would be intolerable to impose on him the necessity of knowing, officially, the property or circumstances of every person in the com- munity. But, at the same time, *the [*5 1 privilege of the defendant must have its effect;. JOHNSON'S CASES, 2.. 1800 ALLAIRE v. OULAND. 51 and this can be done with safety to the magis- trate in no other way than by considering the execution as issuing at the peril of the party demanding it. If the plaintiff is not satisfied with an execution against the goods and chat- ties, and wishes to take the body of the de- fendant, he must ascertain at his own risk, that the defendant is a freeholder. In courts of special and limited jurisdiction, the rule is strict that the party becomes a tres- passer who extends the power of the court to a case in which it cannot lawfully be extended. (1 Stra., 710; 2 Black. Rep., 1,035; Cowp., 640, 647; 2 Wils., 385, 386.) While the justice acts ministerially, or as clerk of the party, he will be justified in issu- ing any process within his jurisdiction that may be demanded by the plaintiff. But in order to charge the plaintiff in the suit, it should appear that it was really his act; it ought not to depend on the general intend- ment of the law, that every writ or process is purchased by the party in whose favor it issues. If it appears to be the officious, or voluntary act of the justice, without any direct authority for that purpose, an innocent plaintiff ought not to be implicated. In such a case, the jus- tice assumes the responsibility of the measure, and is liable for all its consequences. No au- thority to the justice, or demand of the plaint- iff, is pretended, in the present case. The justice was told by Percival that he was not a freeholder, and when he afterwards met him on his way to jail, he directed the constable to obey the precept, and commit ffim to prison. Any general presumption of authority in such a case must cease, and we must conclude that the justice acted voluntarily, and took upon himself the capacity, and consequently the peril, of an agent of Chapin. He is, there- fore, answerable to the plaintiff. The form of the action is proper. The plaintiff has been falsely imprisoned by the immediate and vol- untary act of the justice, and the remedy must be by an action of false imprisonment. The court, are, therefore, of opinion that the plaint- iff is entitled to judgment. Judgment for the plaintiff . Distinguished 3 Johns. Gas., 85; 7 Cow., 250; 1 Wend., 215; 5 Wend., 299. Criticised 16 Wend., 42. Cited in 11 Johns., 445; 13 Id., 328; 5 Wend., 243; 6 Wend., 599; 7 Wend., 91; 8 Wend., 467, 681; 1 Denio. 595; 5 Lans., 259; 6 Lans., 287; 41 Barb., 105. 52*| *ALLAIRE v. OULAND. 1. Promise to Indemnify Not in Writing Entry on Anotlier's Land Consideration 2. Id. Action Thereon Allegation Proof 3. Id. Id. Surplusage Proof 4. Verdict Cures Mistake. Where matter is stated in a declaration, which might have been struck out, on motion, as surplus- age, it need not be proved at the trial. Where A directed B, his servant, to enter a cer- tain meadow, which he said belonged to him, but which was, in fact, the meadow of C and promised to save B harmless, the promise was held to be an original undertaking, and not necessary to be in writing, and that the act of B in obeying such a command of A was lawful, and a sufficient consid- eration for the promise of indemnity. Where a promise, in one of the counts in a decla- ration, by reference to the day in the preceding count, was laid after the breach assigned; the mis- take was held to be cured by the verdict. Citations Doug., 642, 643; 2 Black., 1,101; Cowp.. 671; 1 Term. R., 447; 3 Term. R., 531; 4 Term. R., 560. 590, 687; 1 Term. R., 235; 12 Mod., 127; Doug., 665; 1 Term. B., 235. THIS cause came before the court on a writ of error from the West Chester Common Pleas. The declaration contained four counts. The first count stated that Ouland (the defendant in error), on the 10th September, 1796, was a hired servant of Allaire, and retained in his service, and that Allaire was possessed of a certain close of salt meadow, and also of sixty- six rods of meadow, adjoining the salt meadow of P. F. Munro, in Mamaroneck, and leading from the said close to the highway; that Allaire pointed out a piece of salt meadow, part of the said meadow of the said Munro, as being the said sixty-six rods of meadow belonging to him, the said Allaire, and affirmed it to be the same, and then and there directed the said Ouland to open a fence across the said piece of meadow, so pointed out as the sixty -six rods of meadow of the said Allaire, and to pass through the same to the highway, and did then and there assume and promise the said Ouland, that if he would open the said fence and pass through the said piece of meadow, so pointed put to him, that he, the said Allaire, would indemnify and save him, the said Ouland, harmless from all suits, &c. ; that he, Ouland, as the servant of the said Allaire, did, therefore, in obedience to the direction and commands of the said Allaire, as his servant, enter on the said piece of meadow, so pointed out to him, and did open the said fence and pass through the said piece of meadow to the public high- way, about the business- and work of said Allaire, and he, the said Ouland, averred that the said piece of meadow, so pointed out by the said Allaire as the said sixty -six rods belong- ing to the said Allaire, did not belong to him, but, in fact, was part of the adjoining meadow in the tenure of the said Munro; that, after- wards, to wit, on the 12th September, 1796, the said Munro sued out of the Court of Com- mon Pleas of West Chester County a certain *writ, commonly called an attachment [*>3 of privilege, against the said Ouland, to answer to the 'said Munro in a plea of trespass upon land, &c., and such proceedings were there- upon had, that the said Munro, afterwards, to wit, in the term of September, 1797, by the judgment of the said court, recovered against the said Ouland, $36.87 damages, for the said trespass, &c. And that the said trespass, for NOTE. Contract of indemnity, when original \ Jones, 30 Ga., 488 ; Tindal v. Touchberry, 3 Strobh . undertaking. Contract between A. and B. that if C. (S. C.), L. 177 ; Aldrich v. Ames, 9 Gray, 76 ; Harrison would enter D.'sland and fish, B. would pay A. half v. Sawtel, 10 Johns., 242 ; Chapin v. Merrill, 4 Wend., what D. might recover. It was held that B.'s 657; Conkey v. Hopkins, 17 Johns., 113; Beaman v. undertaking was an original one. Marcy v. Craw- Russell, 20 Vt., 20o ; Darwin v. Smith, 35 Vt., 69 ; ford, 16 Conn., 549. See also Stark v. Raney, 18 Gal., Goodspeed v. Puller, 46 Me., 141. 622 ; Stocking v. Sage, 1 Conn., 519 ; Bohannon v. JOHNSON'S CASES, 2. 435 53 SUPREME COURT, STATE OF NEW YORK. 1800 which the said damages were so recovered, was for the same opening of the said fence erected across the said piece of meadow, pointed out to the said Ouland by the said Allaire, as for the said meadow belonging to him, &c., and for passing and repassin through the said piece of meadow, &c., ani that, afterwards, a ca. mi. was issued on the same judgment, out of the said Court of Com- mon Pleas against the said Ouland, upon which he was arrested by the sheriff, and detained in his custody twenty-four hours, until he paid and,satisfied the amount of the said judgment, and the sheriff's fees on the said execution, . CONE. [*58 1. Adverse Possession, Lands in Buying and Selling Consideration Promise Mainten- ance. 2. State, Sale by Land in Possession of Another State. 3. Id. Contract of Sale Purchase Money Consideration Validity. Where notes were given for the purchase money, on a contract for the purchase and sale of Susque- hanna lands, within the jurisdiction of Pennsyl- vania, under the Connecticut claim to those lands; it was held that the sale was illegal and the consid- eration void. rPHIS was an action of assumpsit. The plaint- J- iff declared on two promissory notes made by the defendant to him, for $135.61 each, dated the 9th February, 1796, one pay- able in cattle and the other in money, the 1st September, 1798. The declaration also con- tained the money counts. The defendant pleaded non assumpsit to the 2d, 3d and 4th counts, and as to $135.61 in the first count, that he did not assume, &c., and payment as to the residue. A notice was subjoined to the plea, according to the statute, that the notes in question were given without consideration, and were obtained by fraud and imposition, having been given on the sale by the plaintiff to the defendant, through the agency of one Hunt, of Susquehanna lands, to which neither the plaintiff nor Hunt had any title. The cause was tried before Mr. Justice Benson, at the Columbia Circuit, in October, 1799. It appeared at the trial that the lands in question, were certain lands in the State of Pennsylvania, claimed by the State of Con- necticut, called Connecticut Susquehanna lands. The plaintiff had by contract sold to Hunt a township of the said lands, and while Hunt was in treaty with the defendant and some others for the sale of the same lands to them, it was suggested that the plaintiff could not fulfil his contract with Hunt, on account of doubts as to the validity of the Connecticut title; and the plaintiff, who was present, said he had no doubt the Pennsylvania title might be purchased for a trifle; that he had lately received information from the Susquehanna, of certain papers which had come to light, NOTE. Grant of land held adversely to the grantor , maintainance. In New York the law is that a deed of land of which the grantor is at the time disseized, is void as to the disseizor and those holding- under him, but valid as to other parties. The title is not extin- guished, but the grantor could, before the enact- ment of the code, bring 1 suit against the disseizor, the benefltof which would accrue to the grantee. The grantee now, under the code, can bring- an action against the disseizor in the grantor's name. Code Civil Procedure, 449, 1501 ; Hamilton v. Wright, 37 N. Y., 506, 508 ; Lawber v. Kelly, 9 Bosw., 494 ; Liv- ingstone v. Proseus, 2 Hill, 526 ; Williams v. Jack- son, 5 Johns., 489 ; Jackson v. Demont, 9 Johns., 55 ; Jackson v. Brinckerhqff, 3 Johns. Cas., 101. A deed of land held adversely to the grantor is void only as to the party in possession and claimants under him. University v. Joslyn, 21 Vt., 52 ; Park v. Pratt, 38 Vt., 545; Den v. Geiger, 9 N. J. L. (4 Hals.), 225 ; Farnurn v. Peterson, 111 Mass., 151. After such deed,title remains in the yranitir so he can maintain an action of ejectment, and recovery will enure to the benefit of the grantee. Wade v. Lind- sey, 6 Met., 413; Betsey v. Torrance, 34 Miss., 138; Dearmond v. Brooking, 37 Ga., 5 : Wilson v. Nance, 11 Humph., 189. What amstitittes such adverse possession as to ren- der deed of owner to bona fide purchaser void. Jack- son v. Hill, 5 Wend., 532 ; Livingston v. Peru Iron Co.. 9 Wend., 511 ; Winkham v. Conklin, 8 Johns., 230 ; 437 58 SUPREME COURT, STATE OF NEW YORK. 1800 very favorable to the Connecticut title; and the'defendant and the others, encouraged and induced by the plaintiff, made the contract with Hunt for the purchase of the land, at 2d. 4s. Connecticut currency, per acre.* The 59*] defendant and the others took up *the notes given by Hunt to the plaintiff, and gave their own notes to the plaintiff, for the .amount. The lands were proved to be situated within the jurisdiction of the State of Pennsylvania; and upon the evidence, the judge was of opin- ion that the defendant had sufficiently shown a want of consideration. The plaintiff then offered to prove that the lands in question were vacant and unsettled, at the time they were sold by Hunt, and ttyat the lands con- tiguous, were principally settled by persons under the Connecticut title, and that many of these settlements were made previous to the | determination of the question of jurisdiction j between Pennsylvania and Connecticut, but the judge rejected the evidence as improper. The plaintiff submitted to a nonsuit, with lib- erty to move the court to set it aside, and for a new trial. A motion was made to set aside the nonsuit and for a new trial, which was argued by Mr. W. W. Van Ness, for the plaintiff, and Mr. E. Williams for the defendant. Per Curiam. This case comes within the principle laid down in the case of Woodwarth v. Dole el al., decided in the Court for the Correction of Errors, in March last. 1 Buying and selling of lands out of the possession of the vendor, and held adversely at the time, is buying and selling a pretended title, and is not a valid consideration for a promise. It is 1. This case will be found at the end of the volume. Orary v. Goodman, 22 N. Y., 170 ; Laverty v. Moore, 33 N. Y., 658 ; Hallas v. Bell, 53 Barb., 247 ; Broiestedt v. South Side R. R. Co., 55 N. Y., 220 : Sands v. Hughes, 53 N. Y., 295 ; Thurman v. Cameron, 24 Wend., 87 ; Higginbotham v . Stoddard, 72 N. Y., 94. Conveyance of lantl a part of which was held ad- versely valid as to remainder. Goodman v. Newell, 13 Conn., 75; Van Dyck v. Van Buren, 1 Johns., 346; Pickens v. Delozier, 2 Humph., 400. The t/eneral rule does not apply to a deed made by cestui aue trust, ousted by trustee. Baker v. Whiting, 3 Sumn., 475. Nor to deed made under decree of court by consent of parties. Stevens v. Palmer, 10 Bosw., 60 ; Hanna v. Renf ro, 32 Miss., 125 ; Saunders v. Groves, 2 J. J. Marsh (Ky.), 406; Williams v. Bennett, 4 Ired. (N.C.) L., 122. See Smith v. Scholtz, 68 N. Y., 41 ; Christie v. Gage, 71 N. Y., 189. Nor to deed made in pursuance of valid contract made when there was no adverse possession. Simon v. Gouge, W B. Mon., 164 ; Hale v. Darter, 10 Humph., 92 ; Doe v. Roe, 20 Ga., 170 ; Chiles v. Conley, 9 Dana (Ky.), 385; McCoy v. Willaford, 2 Swan, 642. See Fryer v. Rockefeller, 63 N. Y., 268. Nor to deed by tenant in common ousted by co-ten- ant. Bird v. Bird, 40 Me., 398. Contra, Wall v. Way- land, 2 Met. (Ky.), 156; Barret v. Coburn, 3 Met. (Ky.), 510. As to deed* executed by a State, see People v. Mayor of N. Y., 28 Barb., 240; Brady v. Begun, 36 Barb., 533; Ward v. Bartholomew, 6 Pick., 409; Merritt vt Gawaer, 2 Cow., 552; Klock v. Hudson, 3 Johns., 375: Baldwin v. Ryan, 3 T. & C., 251. See further upon the general subject, Appleton v. Edson. 8 Vt., 239; Duval v. Bibb, 3 Call.. 362; Jack- son v. Todd, 2 Cainos. 183; Cressinger v. Welch, 15 Ohio, 156 ; Stewart v. M cSwoeney. 14 Wis., 468 ; Stoe- ver v. Whitman. 6 Binn., 416 ; Brinley v. Whiting, 5 Pick., 348; Tabb v. Baird, 3 Call., 475; Gibson v. Shearer, 1 Murph. (N. C.), 114. 438 a species of maintenance and void on general principles of law and public policy. A sale by one State of lands within the jurisdiction and under the adverse claim of another State, must be judged by the same principles of law as a sale by an individual, since the several States, in respect to their territorial claims, have submitted themselves to the cognizance of the judiciary of the United States. Though the sale was, formally, made by Hunt to the defendant, yet the plaintiff was privy thereto and instrumental* in effect-[*6O ing it, and he had previously conveyed the same lands, under the same title, to Hunt, whose notes he held for the purchase money, and which were delivered up in exchange for the present notes. If Hunt was not merely the agent of the plaintiff, in this transaction, yet the plaintiff received the notes, for the like consideration, and with full notice of all the circumstances; he is, therefore, to be affected by the objection against the legality of the consideration. The court are therefore of opinion that the motion ought to be denied. LEWIS, J., dissented. LANSING, Ch. J., not having heard the argu- ment of the cause, gave no opinion. Motion denied. Cited in 20 Johns., 397; 1 Wend., 438; 8 Wend., 635; 5 Denlo, 430; 20 Barb.-, 437. JONES v. HAKE. 1. Note Usurious Discount. 2. Broker Wit- ness Competency. A made a note payable to B, which was indorsed by him, and C and D, and sent by A to E, a money broker, in order to raise money; and E advanced the money on the note, deducting a premium of two per cent, a month. In an action brought against B, the first indorser, by G, it was held that the note was usurious and void; and that E., the broker, was an admissible witness on the part of the plaintiff, to prove that the note had been sold for no more than the legal interest to P. was an action of assumpsit, on a prom- JL issory note drawn by Charles Watkins in favor of the defendant, indorsed by him, Barber and Griffin, and Peter A. Schenck, and which note afterwards came into the hands of the plaintiff. NOTE. Usury, accommodation paper. If accommodation paper, at its legal inception, he sold for a sum such that the purchaser receives more than legal interest, the transaction in usurious, and no remedy can be had against the indorsers. Catlin v. Gunter, 11 N. Y., 368 ; Corcoran v. Powers, 6 Ohio St., 19; Clark v. Loomis, 5 Duer, 468; Veazae Bank v. Paulk, 40 Me., 109; Bock v. Lauman, 24 Pa. St., 435; Duuscornb v. Bunker, 2 Met., 8; Van Schaack v. Stafford, 12 Pick., 565 ; Overton v. Hardin, 6 Cold., 370; Wilkie v. Roosevelt, 3 Johns. Gas., 66..206; Will- iams v. Storm, 2 Duer, 52; Jackson v. Fassett, 12 Abb. Pr., 281 ; 33 Barb., 645 ; 21 How. Pr., 279; Whit- ten v. Hayden, 7 Allen, 407; Sylvester v. Swan, 5 Allen, 134 ; Bennett v. Smith, 15 Johns., 355 ; Powell v. Waters, 17 Id., 176; Bossange v. Ross, 29 Barb., 576 ; Ahern v. Goodspeed, ?2 N. Y., 108. See Moffett v. Bickle, 21 Gratt., 283; Frank v. Longstreet, 44 Ga., 185; Tufte v. Shepherd, 49 Me., 312 ; Brummell v. Enders, 18 Gratt., 873; Morford v. Davis, 28 N. Y., 484. JOHNSON'S CASES, 2. 1800 JONES v. HAKE. 60 The cause was tried at the last sittings in . New York, before the Chief Justice. The defence set up was that the note was usurious, and therefore void. It was proved by a witness for the defend- ant, that Watkins, the maker of the note, in 61*] order to raise money, sent it*to one Has- kin, a money broker, who had often obtained money for him before. When the witness first took the note to Haskin, it had not been indorsed by Peter A. Schenck. Haskin kept it a few days and then returned it to the witness, telling him that he could not get the money on the note as it then was, but that if Watkins would procure the indorsement of Peter A. Schenck, he (Haskin) could get him the money, at the rate of two per cent, per month. The name of Schenck was obtained and the note again taken to Has- kin, who then advanced a part of the money, and, shortly afterwards, the residue, deduct- ing at and after the rate of two per cent, per month, as the interest thereof. It further ap- peared in evidence, that at the time of deliver- ing the note to Haskin, the witness knew not whether Haskin was the owner of the money, or acted as an agent for another, but he knew no other person as the lender of the money. 'The terms were adjusted solely with Haskin. The counsel for the plaintiff offered Haskin ;as a witness, to prove that he, as the broker of Watkins, had sold the note in question to one Herriman, at a discount, not exceeding legal interest; and also offered Herriman, who had no interest in the note, and was released by the plaintiff; to prove that he had given a full consideration for it; but they were both re- jected by the judge. The counsel for the plaintiff contended, that as Haskin was proved to be a money broker, the jury might consider him as the broker of Watkins, for the purpose of selling the note, and that at any rate it was a sale of a note and not a usurious contract. But the judge charged the jury that under the evidence before them, they must consider it as a loan, and Haskin as the principal; that the terms of the loan were made by him, and he only was known as the lender; that as more than seven per cent, per annum had been taken, the note was void, and they must find for the defendant. The jury, nevertheless, found a v erdict for the plaintiff, for the full amount of the note, with interest. <>2*] *A motion was made to set aside the verdict, and for a new trial. Mr. B. Livingston for the plaintiff. Mr. Riker for the defendant. RADCLIFP, J. Considering this case as de- pending upon the testimony admitted at the trial, I am of opinion that the verdict was clearly against evidence. The note in ques- tion was made by Watkins, and indorsed by the persons whose names appear on it, for the accommodation of Watkins alone. No money was paid, or value given, by any of the in- dorsers. If the transaction be viewed in its true light, it was a contract, made through the agency of Haskin, between Watkins on the one JOHNSON'S CASES, 2. part, and the person who loaned the money, and took the note as his security, on the other. The lender was in reality the first holder of the note, for the value given, whatever that may have been. If, then, we admit no shift or de- vice to evade the statute against usury, and look through the forms under which the parties intended to cover the loan, it appears to me there can be no doubt but that the contract was usurious, and the note therefore void. As to the witnesses offered by the plaintiff, I think they were competent, and ought to have been admitted. Haskin was the mere agent or broker, and not a party in interest, and Herriman is expressly stated not to have any interest in the note, and was also released by the plaintiff. Thee witnesses were offered to disprove the usury, and were objected to by the defendant and rejected by the judge. It has been pretended that the objection coming from the defendant, ought to conclude him as to the facts offered to be proved. But this idea is altogether incorrect. A party has a right to avail himself of any objection to the com- petency of a witness, and if overruled, he has still an undoubted right to discredit his tes- timony, or oppose it by counter proof. *It has also been urged that the plaint- [*63 iff is in possession of an equitable verdict ; that the defence set up by the defendant, being founded on usury, is unconscientious, and that the court ought not to interfere to relieve him from a just debt. There are cases in which these considerations, if true, would have their weight, but whatever opinion may be enter- tained as to the morality of such a contract, I think we are bound by' the statute to consider it as illegal and corrupt. To treat it differently, would contravene the declared sense of the Legislature, and tend to defeat the operation of an important act, founded on considerations of public policy. Upon the whole, I am of opinion that the case ought to be re-examined on all the proofs, and for that purpose that a new trial should be awarded. KENT, J., and BENSON, J., concurred. LANSING, Ch. J. I do "not differ from the opinion of the court that Haskin is to be con- sidered as the agent of Watkins, and of conse- quence that my exclusion of his testimony was improper. But I cannot concur in the effects ascribed to that opinion. If Haskin was the agent of Watkins, and he passed the note as such, the acts of Haskin must be considered as those of his principal, and certainly, if he stands in that relation only, there is no proof of usury. The secret trans- actions between a principal and his agent, can- not influence the contract which he makes, for the benefit of his principal, with others. Haskin and Herriman were offered as wit- nesses on the part of the plaintiff, to vindicate his contract from the imputation of being usurious. If this evidence had been admitted, it could not place the defendant in a better situation. It cannot therefore be necessary, on the ground assumed by the court, to turn the plaintiff over to a new trial; for if there is now no proof of usury, the testimony of Haskin *and [*64 Herriman, as stated m the case, though it may 64 SUPREME COURT, STATE OP NEW YORK. 1800 tend to destroy suspicion, can never establish any fact material to the parties. I am, therefore, of opinion that the motion ought to be denied. LEWIS, J., was of the same opinion. New trial granted. Followed 3 Johns. Cas., 68, 209. Cited in-15 Johns., 56 ; 7 Wend., 613 ; 10 Paige, 338. JACKSON, ex dem. SALISBURY, ET AL., c. HUYCK, Coeyman's Patent Boundaries. The south bounds of Coeyman's patent are to be taken according to the survey made by order of the proprietors in 1749. THIS was an action of ejectment. The cause was tried at the Albany sittings, in April, 1800, and a verdict taken for the plaintiff, by consent, subject to the opinion of the court, on the following case: The plaintiff claimed under a patent to Salis- bury and others, dated the 20th of April, 1749, and the defendant under a patent to Coeyman, dated the 36th of August, 1714, the 'south boundary of which is described as "beginning at the mouth of Peter Bronck his creek, and thence up the same until it comes to Coxsac- kie, and thence up into the woods by a due west course, until it is twelve English miles distant from the mouth of the said creek." In 1749, the proprietors of the patent to Coeyman employed a surveyor to survey their south boundary, who, judging that the course was to be a natural west course, or a line proceed- ing west, at right angles from the meridian, assumed the boundary conformably thereto, and run a magnetic west nine degrees north, which he calculated at that time would give a natural west course, and marked the trees in the line throughout, and it then became the reputed south boundary. The north boundary of the patent to Salisbury appears to have been intended to be the same line; and the north 65*] *boundaries of two tracts, in a patent to Scott and others, of the 1st of January, 1770, are expressly bounded on it, where it is de- scribed "as an old line of trees, marked as the south bounds of the lands granted to Coey- man." It was admitted that if this line is still to be adhered to, as the south boundary of that patent, then the premises in question will be included in the patent to Salisbury, which will then, as will also the two tracts granted to Scott and others, have the due quantity of land, and the plaintiff will be entitled to re- cover; but if it is departed from, and the mag- netic west, as it was in 1714, the time of the patent, is to be taken instead thereof, then the premises in question will be excluded from the patent to Salisbury and others; and that patent, and the two tracts granted to Scott and others will prove deficient, and the plaintiff cannot recover. Mr. Spencer for the plaintiff. 440 Messrs. Tates and Van Vechten for the de- fendant. LANSING, Ch. J., delivered the opinion of the court: This cause is brought before the court on a case reserved. It depends upon the con- struction of the south bounds of Coeyman's patent, which is described as running due west from the mouth of Coxsackie Creek. It appears the proprietors of the patent of Coeyman directed a survey of it in the year 1749; that it was made with an allowance of variation of nine degrees, and trees marked correspondent to the line run, and that from thence it became the reputed south line of Coeyman's patent. How this reputation was acquired, and under what other circumstances, does not appear. It further appears from the case that the patent under which the lessors claim is bound- ed by the south line of Coeyman's patent; that another patent, in 1770, expressly recognized the line run as run for the south line of Coey- man's *patent, thus combining the assent [*66 of government with the location made by the proprietor. After a lapse of half a century, it would be injurious to the peace of the community to- suffer a boundary, so settled, by the express assent of the parties interested in correcting any mistake in the survey, to be disturbed. The court are, therefore, of opinion that the defendant must take nothing by his motion. Rule refused. STAFFORD . VAN ZANDT. Judgment Variance from Referee's Report Reversal. Where a cause in the Common Pleas had been re- ferred, and a judgment was entered for 99 cents- more than the sum reported by the referees to be due, the judgment, on a writ of error, was reversed. THIS cause came before the court; on a writ of error, from the Mayor's Court of Albany. ^ By the record, it appeared that the action in the court below had been referred to referees, who had reported a sum due to the plaintiff below, who is the defendant here, and that the judgment in the court below was given for 9& cents more than the amount reported to be due by the referees. This was assigned for error, with several other matters, which were not particularly noticed by the court. Mr. Emott for the plaintiff. Mr. Ten Brceck for the defendant. Per Curiam. The variance between the sum reported by the referees and the amount of the judgment is a fatal error. Without ex- pressing an opinion on the other points, let the judgment for this cause be reversed. JOHNSON'S CASES, 2, 1800 JACKSON, EX DEM. LEWIS AND ELY v. POWELL. 67 67*] *JACKSON, ex dem. LEWIS and ELY, v. POWELL. Costs Two Plaintiffs Resident and Non-Resi- dent Death of Resident Judgment. Where there were two plaintiffs in a cause, one of whom resided out of the State, and the other within the State, and the plaintiff within the State, died pending the suit, and the defendant obtained judgment, it was held that the attorney of the plaintiffs was not bound to pay the costs. JUDGMENT having been rendered for the plaintiff in this cause, A Mr. L. Elmendorf, at the last terra, obtained a rule on Mr. Bowman, attorney for the plaint- iff, to show cause why he should not be or- dered to pay the costs, which were taxed, on the ground that one of the lessors of the plaint- iff was dead, and the other resided out of this State. . Mr. Bowman now showed for cause, that al- though one of the lessors was a non-resident at the time of commencing this suit, the other re- sided in this State, and died pending the suit, and contended that this was sufficient to ex- empt an attorney from the payment of costs. Per Curiam,. If one of the plaintiffs be resi- dent within this State, at the time of com- mencing the action, the attorney is not within any rule of this court, subjecting him person- ally to the payment of costs. After the death of the resident lessor in the present case, the defendant might have applied for a rule to stay proceedings, until security for the costs was given. Having neglected this, he has no other remedy than to pursue the party him- self, if he can be found. Motion denied, with costs. 68*] *FRANKLIN THE UNITED INSURANCE COMPANY. Commission Motion for Affidavit Sufficiency of. The affidavit on which a motion is made for a commission ought to state that there are material witnesses to be examined at the place to which the commission is to be directed. A general affidavit that material evidence is to be obtained in the cause is not sufficient. MR. TROUP, for the defendants, moved for a commission to examine witnesses at Porto Bello, on a general affidavit that it was supposed sufficient evidence might there be obtained. Mr. Burr, contra. Per Curiam. The defendants have not brought themselves within the provisions of the act on this subject. They ought at least to have shown that material evidence exists in the place to which the commission is to be sent. It is an application for a commission to hunt for testimony. Motion denied. Cited in^4 How., 461. JOHNSON'S CASES, 2. THE PEOPLE v. THE JUDGES OF CAYUGA, &c. Mandamus Court of Common Pleas Re- fusal to Give Judgment Order to Show Cause. Where a Court of Common Pleas refuses to give judgment in a cause before them, this court will not grant a mandamus, until after a rule to show cause has first been granted for the purpose. MR. MUMFORD, on an affidavit stating that a verdict had been obtained in an action depending in the Common Pleas of Cayuga County, on which the court refused or de- layed to give judgment, moved for a man- damus to the judges of that court, command- ing them to pronounce judgment on the ver- dict. Per Curiam. The practice adopted in such case is first to grant a rule to show cause. On showing cause, it is in the discretion of the court to grant a peremptory mandamus or not, as the case may require. Take a rule to show cause. Cited in 27 N. Y., 386: 11 Abb.. 124. *DEMARET ux. [*6*> v. VAN ZANDT. Commission Motion for Affidavit Third Party. An affiadvit, on which a mot ion is made for acorn- mission to examine a witness, may be made by a third person, not a party to the writ. N a writ of right. Mr. Burr, for the defendant, moved for a commission to examine a witness in the State of New Jersey. The affidavit on which he grounded the motion was made by a person not a party to this suit. Mr. B. Livingston, contra. Per Curiam. Let the commission issue: the affidavit, although made by a third person, shows probable grounds to believe that the testimony of the witness may be material. Be- sides it cannot injure the tenant by creating delay, for the application is not in time to have the effect of suspending the proceedings in the suit, or of excusing the demandants for not going to trial. Rule granted. Cited in-44How., 459; 54 How, 507; 4 Abb. N. S.. 253. SEALY v. SHATTUCK. Order to Join in Error Lapse of Time Waiver. Where a rule for a joinder in error to a tertinrari is obtained, the party must apply at the next term for the effect of his rule; if a term intervenes, he will be presumed to have waived the rule. 441 <59 SUPUEME COURT, STATE OF NEW YORK. 1800 I N error, on certiorari, from a justice's court. A rule was long since obtained, by the plaintiff in error, that the defendant join in error in twenty days after service of notice of the rule, or that the plaintiff be heard, ex- ptirte. The notice of the rule was served in July, 1798, and the defendant had not joined in error. 7O*] *Mr. Emott now moved for a reversal of the judgment below. Per Curiam. The plaintiff ought to have .applied for the effect of his rule, at the next term, after notice of it was proved. Having slept so long, he must be presumed to have waived it. The motion must be denied. Motion denied. Hted ln-15 How., 200. RUSH v. COBBET. Commission Return of Diligence Trial. Where the party who sues out a commission to examine witnesses, does not use due diliarence to get it returned in proper time, or the return is not prop- erly made, the court will permit the trial to pro- ceed, notwithstanding the commission. A COMMISSION to examine witnesses in Philadelphia was issued on the applica- tion of the defendant, and returned, but the return was stated to be irregular. Mr. Livingston moved for leave to proceed to trial at the next circuit, and offered to waive the irregularity in the return of the commission, and that the same might be opened, and the defendant have the benefit of the testimony taken under it. Mr. Riker, contra. Per Curiam. Let the plaintiff have leave to proceed to trial. The commission being taken out on the part of the defendant, it was in- cumbent on him to have it properly returned, and there has been sufficient time for that purpose. Besides, the offer of the plaintiff to waive the irregularity is fair, and cannot reasonably be refused. Rule granted. Cited in 2 Johns., 183. 71*] *STEW ART v. WILLIAMS. Attachment Sheriff Time. An attachment against a sheriff for not bringing in the body of a defendant, cannot be issued until twenty days after service of a notice of a rule for that purpose. AN attachment was issued against the Sheriff of Delaware for not bringing in the body of the defendant. The rule for the attach- ment was entered in less than twenty days after service of a notice on the sheriff of the previous rule to bring in the body. 442 Mr. Hoffman moved to set aside the attach- ment, and vacate the rule on which it was founded, for irregularity, with costs. Per Curiam. Let the attachment be set aside, and the rule be vacated, with costs, to be paid by the plaintiff. The sheriff was entitled to twenty days notice of the rule to bring in the body. JACKSON, ex dem. MARTIN. PLA'TT. . Case made Necessary Papers Refusal to De- liver Order Stay of Proceedings. Where, after a verdict, and within the two days allowed for making a case, the defendant's attorney applied to the plaintiff's attorney for certain papers which had been read in evidence, and which were necessary to be put in the case, which were refused by the plaintiff's attorney, and the defendant's attorney could not, for that reason, make up the case, the court ordered that the plaintiff's attorney furnish the papers to the defendant's attorney, or permit him to take extracts, and that the proceed- ings should, in the meantime, be stayed. A FTER the trial of this cause, and within IJL the time allowed for making a case, the defendant's attorney applied to the attorney for the plaintiff for the inspection of certain papers which had been read in evidence, to enable him to make the case, and which were necessary for that purpose. These were re- fused, and the defendant's attorney for that reason could not make the case. Two orders had been obtained from a judge to stay the proceedings on this *ground, the first of [*7t2 which was served on the plaintiff's attorney, who, notwithstanding the order, proceeded to enter a judgment on the verdict. Mr. Van Vechten, for the defendant, now moved to set aside the proceedings subsequent to the verdict, with costs. Messrs. Woodworth and Spencer, contra. Per Curiam. It was improper in the plaint- iff's attorney to refuse an inspection of the papers, or not to furnish sufficient extracts from them, to enable the defendant's attorney to make the case. It is therefore ordered that the defendant have time to make a case until eight days after the expiration of the present term, and that the plaintiff's attorney furnish the papers required for that purpose, or suffer the defendant's attorney to take sufficient ex- tracts from the same, and that the proceed- ings in this cause remain in their present state, until the further order of the court. JANSEN ET AL., Administrators, DAVISON. Costs Refusal of Court Below to Give Admin- istrator's Remedy Mandamus Writ of Error. Where the plaintiffs, who were administrators, in a cause, in the Court of Common Pleas, recovered less than $25 damages, and that court gave judg- ment for the damages, but not for the costs, this court refused to grant a mandamun to compel them to give judgment for the costs. The proper remedy is by a writ of error. JOHNSON'S CASES, 2. 1800 THE PEOPLE v. COCHKAK. 72 A RECOVERY was obtained in the Com- mon Pleas of Ulster, in favor of the plaintiffs, in the capacity of administrators, for a sum less than $25. The court below gave judgment for the damages, but consider- ing the plaintiffs not entitled to costs, refused to give judgment for costs. Mr. Oardinier, for the plaintiff, moved for a mandamus to the Common Pleas, commanding them to give judgment in favor of the plaint- iffs, for the costs, as well as the damages recovered. 73*] *Per Curiam. This application can- not be granted. The court below have exer- cised their judgment on the question of costs. It was not, on their part, a delay or refusal to do what appeared to them to be right. If they were wrong, it was an error of judgment merely, and the proper remedy is by a writ of error, which the party is entitled to have upon an erroneous judgment, whether it be in his favor, or against him. Upon a writ of error, the court above may not only reverse, but give such judgment as the court below ought to have given. Motion denied. Cited in 1 Cow., 433 ; 18 Wend., 575. THE PEOPLE v. COCHRAN. Assault and Battery Conviction Motion for Judgment Circumstances not Shown Nom- inal Fine. Where a person had been convicted on an indict- ment for an assault and battery, and the Attorney- General moved for judgment, but showed no cir- cumstances attending the offense by which the ourt could judge of the degree of punishment which ought to be inflicted, a mere nominal fine was imposed. THE defendant was indicted for an assault and battery, at a general sessions of the peace, in the County of Otsego. He removed the indictment into this court by certiorari, and issue being joined on the plea of not guilty, it was carried down to be tried at the last circuit in that county, by nisi prius. On the trial, the defendant appeared, and was convicted upon his own confession, in open court. The record being returned, the Attorney- General moved for judgment, but neither he, nor the prosecutor offered any evidence in aggravation, nor the defendant in extenuation of the offense. Per Curiam. No circumstances attending the offense on either side being shown, the court have no criterion by which to regulate their discretion in fixing the punishment. We are therefore bound to consider it as a common offense; and, accordingly, impose a fine of one dollar. 74*] *LANSING, Ch. J., dissented. He was of opinion that a higher fine ought to be imposed. JOHNSON'S CASES, 2. JONES v. DUNNING AND DOE. Bail Proceedings Against Irregular Laches. Where the proceedings against bail were irregular, but they suffered two terms to elapse, after a knowledge of the irregularity, before they applied to set them aside, it was held too late. rPHE defendants were sued as the special J- bail of A. B. In January Term last, judgment was obtained against them; and in March, an execution issued thereon. The proceedings against them were by writs of scire facias, which were returned nihil; and it appeared, that the second sdre facias had not been four days in the sheriff's office. On this ground, Mr. Van Vechten moved to set aside all the subsequent proceedings, for irregularity. Mr. Woodworth, contra. Per Curiam. There has been a great laclie* on the part of the defendants. They must be presumed to have had actual notice of the proceedings against them, at or before April Term last, for the execution issued in March. Two terms have since intervened, and they now come too late to object to these proceed- ings. Motion denied. Distinguished in 34 How., 383. Cited in 1 Daly, 300. *SCOFFIELD ET TJX. v. LODER. {*75 Writ of Eight Summons Service Return Irregularity. Where the tenant on a writ of right, vouches, and a writ of summons issues which is irregular in its service, or defective in the return, an alias sum- mons will be granted against the vouchee. N a writ of right. The tenant having vouched one Hunter, a writ of summons was issued, the service of which was irregular, or its return by the sheriff was defective, no proclamation appear- ing to have been made. Mr. Riker, for the demandant, moved for judgment against the tenant. Mr. Munro, contra, applied for an alias summons against the vouchee. Per Curiam. The tenant is entitled to an alias summons. The insufficient service of the first writ, or its defective return, is not imput- able to him, and he ought not to be placed in a worse condition than if nihil had been re- turned. Let an alias issue. Motion denied. 443 SUPREME COURT, STATE OF NEW YORK. 1800 MUNROE AND ROE v. COLLIN EASTON. 1. Sill of Exchange Accepted No Demand Liability of Drawer. 2. Id. Paid by Payee Indorser Discharges Drawer Bill as Evi- dence. A drawer of a bill which has been accepted, is not responsible until after a default of the acceptor, and the holder must use due diligence to demand payment of the acceptor before he can resort to the drawer. The indorsee of a bill of exchange, which had been accepted, without demanding payment of the ac- ceptor, or inquiring 1 after the drawer, presented the bin, when it became due, to the payee indorser, who paid it, and charged the amount in his account against the acceptor. The payee afterwards brought an action against the drawer, for so much money paid to the use of the drawer, and offered the bill in evidence in support of the action ; it was held that the drawer was not liable. Citation 2 Burr., 674. x THIS was an action of indebitatus assumpsit, for money paid, laid out and expended for the defendant, and for money had and re- ceived by him to the use of the plaintiff. At the trial, in support of his action, the plaintiff gave in evidence a bill of exchange, dated the 27th of April, 1797, drawn by the defendant on David Easton, of Philadelphia, directing him to pay, four months after date, to the plaintiffs, or their order, $750. The 76*] bill was indorsed by *the plaintiffs, and, successively, by J. P. Mumford, J. Lawrence, P. Ludlow, and A. H. Lawrence. It was ac- companied with a protest, in which the notary stated that at the request of the last indorser, he presented the bill at the house of the plaint- iffs, the first indorsers, and demanded pay- ment of a clerk of the plaintiffs, who answered that the plaintiffs were absent, and that he had no orders to pay the bill. The notary was not requested to call on the defendant, nor did he make any inquiries after him. The plaintiffs were friendly indorsers of the bill, for the accommodation of the drawer, and had no interest in it, and they paid the amount to the holder. The bill was accepted by the drawee, who resided in Philadelphia, and when the bill became due, the defendant was absent, in the West Indies. No demand was made of the acceptor of the bill when it became due. An account current between the acceptor and his partner, James Cavan, and the plaint- iffs was produced, in which the plaintiffs had charged the bill in question to them; and a letter from the plaintiffs to Easton and Cavan, inclosing the account, and requesting payment of the balance, was also produced. The jury found a verdict for the plaintiffs, contrary to the charge of the judge. A motion was made at the last term to set aside the verdict, and for a new trial. Mr. Pendleton for the plaintiffs. Messrs. B. Livingston and Backer, for the de- fendant. KENT. ./., delivered the opinion of the court: NOTE. Negotiable paper, what constitutes duedtl- igence. See note to Stewart v. Eden, 2 Caines, 121 (this edition). 444 I have always understood the law to be well settled, that the drawer of a bill is only respon- sible after a default on the part of the accept- or; and that the holder must first demand pay- ment, or use due dilligence to demand it of the acceptor, before he can resort to the drawer. (2 Burr., 674.) Nothing of this kind having been done in the present case, I consider the drawer as discharged. No change in the form of the *action can alter the respective [*77 rights of the parties in relation to the bill. This must be considered as a suit by the payee of a bill of exchange against the drawer, and the law is too well settled to admit of a doubt. If this was to be considered on the ground of an equitable action for money laid out and expended to another's use, and had no refer- ence to the bill, yet the evidence in the case shows that the money was advanced for the use of the acceptor, and not of the drawer. The letter and account current of the plaintiffs is decisive proof against them. The verdict, therefore, ought to be set aside, as against law and evidence. New tnal granted. Cited in 3 Cow., 262. SKIDMORE & SKIDMORE v. DESDOITY. Marine Insurance "All Lawful Goods and Against All Risks." In an action on a policy of insurance on all lawful goods, &c., against all risks, it was held that the in- surance covered all goods lawful to be exported from the United States, though contraband of war, and owned by a subject of one of the belligerents. Citations 1 Johns. Cas., 1 ; 1 Johns. Cas., 337. THIS was an action on a policy of insur- rance, upon all lawful goods and mer- chandises, on board of the schooner Fox, from New York to New Orleans, against all risks, &c. Premium, 12 per cent. Plea, the general issue. The plaintiffs were British subjects, and partners in trade, residing in the city of New York, and on the 31st of January, 1799, put on board the Fox, at New York, a bale of Russia sheeting, of the value of $475. The vessel sailed on her voyage, and was captured by a British cruiser, and carried into New Providence, where the goods in question were condemned, under the name of "ticklen- burghs," as contraband of war, and enemy's property. The plaintiffs, on hearing of the I condemnation, abandonded for a total loss. It appeared that the premium for under- writing contraband goods was 17 per cent. The jury found a verdict for the plaintiff. *A motion was made to set aside the [*78 verdict, and for a new trial, which was argued SMr. Riggs for the plaintiffs, and Messrs, ndleton and Troup, for the defendant. Per Curiam. In the case of Seton et al. v. L&tc (1 Johns. Cas., 1), it was decided that an NOTE. Marine insurance, lawful goods, contratmnd of war. See Seton v. Low and note, 1 Johns. Cas., 1 (this edition). JOHNSON'S CASES, 2. 1800 SABLE v. HITCHCOCK. 78 insurance on lawful goods extended to all goods which it was lawful by the laws of this country to export, and that the insured was not bound to disclose to the insurer that the goods were of the description of contraband of war. -Whatever effect the difference of premium might have, to do away the pre- sumption that that the insurer took upon himself the risk of goods of this description without a special disclosure, the stipulation in the policy that the insurance was against all risks, must remove all doubt. In the case of Goix v. Knox (1 Johns. Gas. , 337), it was decided that an insurance against all risks protects the insured against every- loss happening during the voyage, except such as may arise from the fraud of the in- sured. According to these decisions, the pol- icy must be considered as covering all goods lawful to be exported, whatever may be their quality, or whoever may be owner. We are, therefore, of opinion that the plaintiffs must Mve judgment. Judgment for the. Plaintiffs. Cited in 12 Wend., 466. 79*] *SABLE t>. HITCHCOCK. Slave Hired in This State Constructive Sale Penalties Representatives Act of February 22d, 1788. A, the owner of a slave in New Jersey, removed into this state with the slave, and entered into an .agreement with B in this state, by which he put the slave to service to B until the parties or their executors should mutually agree to annul the agree- ment. This was held to be a sale of the slave, in this state, within the intent and meaning of the Act Concerning Slaves, passed the 23d February, 1788. But such an agreement or sale, if in the course of administration, or by persons acting in outre droit, ras executors, assignees of absent or insolvent debt- ors, sheriffs on execution, and trustees, would not be within the act, so as to subject the vendors to the penalty, or make the slave free. Citation Colony Laws, Vol. 1, 283, 284. TNhomine replegiando. The declaration was as follows: "City and County of New York, to wit: Joseph Hitchcock was attached to answer unto one Effy Sable, of a plea wherefore he took, and taken, kept the said Effy, and whereupon the said Effy, by Mr. Peter Jay Munro, her attorney, complains that the said Joseph, on the first day of November, in the year of our Lord, 1796, at the City and County of New York, and at the first ward of the said city, took the said Effy, and her taken, kept until, &c., whereby the said Effy saith she is made worse, and hath damage to the value of 2001. , and thereof she brings suit." &c. Plea. And the said Joseph, by Mr. James Woods, his attorney, comes and says, that the said Effy Sable ought not to be answered, be- cause he, the said Joseph saith, that the said Effy Sable, on the fourth day of July, in the year of our Lord, 1794, was a slave, belonging to one Samuel Ellis, to wit, at the city of New York, in the County of New York; and the said Joseph further saith that the said Samuel JOHNSON'S CASES, 2. Ellis made his last will and testament in writing, in due form of law, bearing date the 4th day of July, in the year of our Lord, 1794, and thereby constituted Simon Van Antwerp, Elias Burger, and William Reilly, executors thereof, to wit, at the city and in the county aforesaid, and the said Samuel Ellis, after making his said last will and testament, to wit, on the 10th day of July, in the said year of pur Lord, 1794, died at the city of New York, in the County of New York, without revoking or altering his last will and testament, and possessed of the said Effy as his slave afore- said, and the said Joseph further saith that the said Simon Van Antwerp, Elias Burger, and William Reilly, took upon themselves the execution of the said last will *and tes- [*8O tament of the said Samuel Ellis, deceased, to wit, on the day and year last mentioned, at the city in the county aforesaid, and then and there, as the executors of the said Samuel Ellis were possessed of the said Effy; and the said Simon Van Antwerp, Elias Burger, and Will- iam Reilly, by a certain indenture between them, as executors of the last will and testa- ment of the said Samuel Ellis deceased, of the one part, and the said Joseph Hitchcock of the other part, under the hands and seals of the said parties respectively, bearing date the 5th day of September, in the year of our Lord 1794, did place and to service put, with the said Joseph the said Effy Sable, to live and re- side with the said Joseph, his executors, ad- ministrators and assigns, as his and their serv- ant, and to be used and employed in and about the business of the said Joseph or in any other way that he the said Joseph, his execu- tors, administrators and assigns, might think proper, and so to continue, and remain, until the several parties to the said indenture, their several and respective executors, administra- tors and assigns, should or might mutually consent and agree, to vacate and annul the said indenture, to wit, at the city and county afore- said; and the said Effy Sable, .so being placed and to service put with the said Joseph; and the several parties to the said indenture, not having as yet in any manner consented or agreed to vacate and annul the said indenture, the said Joseph by virtue thereof became and still continues to be entitled to the custody and services of the said Effy Sable, wherefore the said Joseph, on the said 1st day of November, in the year of our Lord, 1796, at the city, county and ward aforesaid, took the said Effy and her taken, kept until, &c., as it was law- ful for him so to do, wherefore he prays judg- ment, if the said Effy Sable in this behalf ought to be answered. Replication. And the said Effy prays oyer of the indenture aforesaid, and to her it is read in these words, to'*wit: " This indenture, [*81 made the 5th day of September, in the year of our Lord, 1794, between Simon Van Antwerp, Elias Burger, and William Reily, of the city of New York, executors of the last will and testa- ment of Samuel Ellis deceased, of the one part, and Joseph Hitchcock of the said city, sail- maker, of the other part, witnesseth, that the said parties of the first part, in consideration of the sum of 10s. current money of the State of New York, to them, the said parties of the first part, in hand paid by the said Joseph 445 81 SUPREME COURT, STATE OF NEW YORK. 1800 Hitchcock, at and immediately before the en- sealing and delivery of these presents, do place and to service put with the said Joseph Hitch- cock, a certain negro wench named Effy, and her male child, late the property of the said Samuel Ellis, deceased, to live and to reside with the said Joseph Hitchcock, his executors, administrators and assigns, as his and their servant, and be used and employed in and about the business of the said Joseph Hitch- cock, or in any other way that he, the said Jo- seph Hitchcock, his executors, administrators or assigns, may think proper, and so to continue and remain, until the several parties to these presents, their several and respective executors, administrators and assigns, shall or may mutually consent and agree to vacate and annul these presents; and the said parties of the first part, for themselves, their executors and ad- minstrators, do covenant and agree with the said Joseph Hitchcock, his executors, adminis- trators and assigns, that the said negro, and her said male child, shall remain with the said Joseph Hitchcock, his executors, administra- tors and assigns, in manner as aforesaid, and until all the parties to these presents as afore- said, shall mutually agree to annul and vacate these presents, without any the let, trouble, hindrance, molestation, or denial of them, the said parties of the first part, their executors, administrators and assigns, or either of them, or any person or persons, claiming or to claim, by, from or through them, or either of them; and the said Joseph Hitchcock, for himself, his heirs, executors and administrators, doth 82*J*covenant and grant, with the said parties of the first part, their executors, administra- tors and assigns, and every of them, that during all the time aforesaid, the said wench and her said male child, shall be kept, provided, and maintained at the sole expense, charge and trouble of him the said Joseph Hitchcock, his executors, administrators and assigns, in such way, that during all the aforesaid time, the said parties to the first part, their executors and ad- ministrators, and every of them, and the es- tate of the said Samuel Ellis deceased, shall and may never become, in any way whatsoever, chargeable therewith. In witness whereof," &c., which being read and heard, the said Effy says that she ought to be answered, notwith- standing anything by the said Joseph above, in pleading, alleged, because the said Effy says that, after the 1st day of June, in the year of our Lord, 1785, and also after the 22d day of February, in the year of our Lord 1794, the said Samuel Ellis, in his lifetime, did dwell and reside in the State of New Jersey, out of the State of New York; and that the said Effy, then being the slave of the said Samuel, was held and detained by the said Samuel as his slave, within the saia State of New Jersey, to wit, on the day and year last aforesaid; and that afterwards, to wit, on the same day and year last aforesaid, the said Samnel, in his lifetime, did bring the said Effy from the said State of New Jersey into the State of New York, to wit, to the City and County of New York, and ward aforesaid, and there held her as his slave, until his death. And this she is ready to verify, wherefore the said Effy prays judgment and her damages, occasioned by the taking and keeping of the said Effy, &c. 446 To this replication there was a general de- murrer and joinder. RADCLIFF, J. On these pleadings, the ques- tion is, whether the disposition made of the plaintiff, by the executors of Samuel Ellis, to the defendant, was a sale, within the meaning *of the Act of the 22d February, 1788, ' [*83 by which " in order to prevent the further im- portation of slaves into this State," it is enact- ed that if any person shall sell as a slave with- in this State, any negro or other person who has been imported or brought into this State, after the 1st June 1785, he shall be deemed guilty of a public offense, and forfeit 100, and the person so imported or brought into this State shall be free. 1. I consider the disposition of the slave, made by the executors, as equivalent to an absolute sale. It was probably made in the manner expressed in the indenture, under an apprehension that the condition of the plaint- iff came within the description of the act, and with a view to elude the prohibition. It gives to the defendant a complete authority over her as his servant, and unlimited in its duration. It is not only unlimited, at the pleasure of the defendant, but irrevocable, without the con- sent of both parties, that is, without a new con- tract, to rescind the old. This is, to every purpose, a sale. Besides, here are no circum- stances to denote a hiring or indenting as a servant, no time for the expiration of the in- denture, no right to the return of the slave, or to demand payment for her services, no subse- quent responsibility on the part of the execu- tors, for her maintenance, which was expressly assumed by the defendant. In short, no title or control over her, was in any shape retained by the executors, who parted with all their property in the slave. But, 2. I am of opinion that the sale by the exe- cutors was not a sale within the spirit of the act. The objects of the act are sufficiently answered, if it be restrained in its operation to the ordinary traffic or sale of slaves, brought into this State, by persons acting in their own right, and for their own emolument. It ought not to be deemed to apply to those who act involuntarily for the benefit of others, and in performance of a trust imposed by law. Act- ing in that capacity, *they cannot be [*84 supposed to incur the guilt ascribed to this traffic, and ought not to be liable for its con- sequences. In all cases, therefore, of persons acting in autre droit, as executors, assignees of absent or insolvent debtors, sheriffs on sales by execution, and trustees on whom the duty devolves, by the interposition of law, I think the act cannot apply. It' would be highly injurious to creditors to extend it thus far, and extremely embarrassing to persons acting in these capacities. What would be their situa- tion and duty in regard to such slaves? They are not bound to keep them as their own, and if kept as the property of the estate which they represent, it would be impossible to convert them to any valuable purpose, in the execu- tion of the trust, or to calculate the further responsibility which their age or disability 1 This act comprises the several then existing acts concerning 1 slaves, and which were passed prior to the 1st June, 1785. JOHNSON'S CASES, 2. 1800 SABLE v. HITCHCOCK. 84 might occasion. By selling them, they would incur a heavy penalty, besides the forfeiture of the slaves. It would be better the law should declare the property extinct, and anni- hilate the right. In the present case, the re- moval of the testator into this State, without a consequent sale by him, created no forfeiture. The property of the slave continued lawfully in him; and, unless extinguished by his death, was transmitted to the executors, and became assets in their hands. If so, they had a right to dispose of her for the benefit of the estate of their testator, and the sale was not within the act. I am, therefore, of opinion that there should be judgment for the defendant. KENT, J. The question raised by these pleadings is, whether the act of the executors in placing the plaintiff to service, as stated in the pleadings, be a sale within the Act of the 22d February, 1788, which declares, "that if any person shall sell as a slave within this State, any negro or other person, who has been imported or brought into this State, after the 1st June, 1785, such seller, his factor or agent, shall be guilty of a public offence, and shall forfeit 100, and the person so imported and sold shall be free." 85*] *I have no difficulty in considering the deed set forth in the replication, as amount- ing to a sale. A complete power over the ser- vice and person of the plaintiff is transferred to the defendant for so long time as he shall please, which may well include the whole life of the slave, and be, in every respect, equal to an absolute ownership. A transfer depend- ing on the pleasure of the vendee is an abso- lute sale. The only question that can then arise in this case, is, whether a sale by execu- tors in the course of administration, be such a sale as is contemplated and prohibited by the act? This part of the act, concerning slaves, was made, as its preamble imports, to prevent the further importation of slaves into this State; a policy the direct counterpart to that contained in one of our colonial statutes (Colony Laws, vol. 1., 283, 284), which declared that all due encouragement ought to be given to the direct importation of slaves. In seeking the true construction of the act, we ought to keep steadily in our eye, the mischief intended to be prevented, which was the foreign traffic in slaves; and the Legislature took a measure de- cisively calculated to destroy it, by forbidding any person, his factor or agent, to sell any slave so imported, or, in other words, to use him as an article of commerce. The act was hostile to the importation, and to the expor- tation of slaves, as an article of trade, not to the existence of slavery itself; for it takes care to re-enact and establish the maxim of the civil law, that the children of every female slave shall follow the state and condition of the mother. If we can then fulfil the object of the law, and, at the same time, prevent, the rigorous penalty of the act from working injustice, or impairing the requisite funds to pay debts.we, undoubtedly, do all that was within the intent and meaning of the provision. It appears to me, therefore, to be the better interpretation JOHNSON'S CASES, 2. to consider sales made in the ordinary course of law, and which are free from any kind of collusion, as not within the provision of the act. While slaves are regarded and protected as property, they ought to be liable to an essential consequence attached to *property, that [*8O of being liable to the payment of debts. If it is. otherwise, the debtor is possessed of a false token, and the creditor is deceived. By con- sidering the sale mentioned in the act, as con- fined to a voluntary disposition of the slave, for a valuable consideration, by the owner himself, we are enabled effectually to reach the mischief in view, the importation of slaves for gain, and we take away every such motive to import them. I cannot acquiesce in the interpretation, that the importer can sell for his own life. Importations with liberty to sell for the life of the importer, would go far to revive and animate this impolitic and unjust commerce. The tenure of the slave per auter vie, is, indeed, not quite so valuable as for the life of the slave, but still it would be highly valu- able, and the commerce would be thrifty. Upon the death of the importer, the slave cannot be considered as free; nor do I perceive that the act gives color to such a conclusion. If the slaves belong to the estate, they must go to the executor as assets. He becomes their master, and is liable for their trespasses, and for their maintenance, if infirm; and it results, inevitably, that he must be able to sell them, because he must answer for them as assets. For these reasons, I am inclined to think that slaves so imported may be held as assets by creditors on execution, and by executors, in the course of administration; and conse- quently, that judgment must be for the de- fendant. LEWIS, J., concurred. BENSON, J. (After stating the facts in the case.) The question is, whether a slave, so imported, or brought into the State, and remaining unsold, can, on the death of the master or owner, be sold by his executor? By the law of this State, slavery may exist within it. One person can have property in another, and the slave is part of the good's of the master, and may be sold, or otherwise aliened by him; or remaining unaliened, is, on his death, *transmissible to his executors; [*87 but by the act under consideration, a slave imported or brought in, after the 1st June, 1785, is not to be sold, as a slave, and if the slave should be so sold," the master, and every other person privy with him to the sale, are liable to a penalty, and the slave becomes free, by force of the sale itself. Though these two effects of the sale are distinct, and the latter, perhaps, capable to be considered as beneficial, yet as they must necessarily ever be concomitant, the same sale, or act of alien- ation, always producing them both, and at the same time, the entire clause or section is thereby rendered penal, of strict interpreta- tion, and, consequently, constructive sales are to be altogether excluded. It is further to be premised, that the dero- 447 87 SUPREME COURT, STATE OP NEW YORK. 1800 gation from the rights of the master, intended by the act, is such, that in order to decide on its nature and extent, it will be requisite to examine and pronounce on the whole of the residue of the right of alienation, to be deemed left in him, as to a slave so imported or brought in. I, therefore, state, 1. That so much of the benefit intended to the slave, as consists in the chance, if it may be so ex- pressed, of becoming free, in consequence of a sale, is only to the person imported or brought in, as to be distinguished from any participation in it by the issue of the person. So that where the person is a female, the master has a right to sell the issue, born after she shall have been imported, or brought in, and before she herself shall happen to become free, equally as he may sell any other slave. 2. That the act only prohibits a sale, or an alienation for a valuable consideration, as to be distinguished from a gift, a gratuitous alienation, or for good consideration only, and consequently, the master has a right to give away the slave. 3. That the act does not prohibit every sale, but only such sales where the slave is sold as a slave, to become the slave of the buyer, and where the whole of the estate or interest of the master is intended to pass to the buyer, without any reversion in the -JS8*] master. It must be a sale in *fee, as to be distinguished from a sale for a term depending on a limitation of time, either contingent or definite, when the sale is, as it were, to expire, and the slave again to revert to the master; but it being obvious that if the master may sell for a term, and be unrestrained as to the limitation of it, that he may then, by the mere form of the sale, prevent the slave* from the benefit of the act, the law will, therefore, im- plicitly supply the limitation, and which can be no other than the life of the master him- self. 4. As the consequence from the two last propositions, the master has a right to sell for his own life, or for any other uncertain term, or for a term of ytars; and where the sale is for any other term than the life of the master, if it should not happen to expire by its own limitation in his lifetime, it will expire on his death, and be good for his life. In short, he has an estate or interest for his own life only, in the slave; and if the slave shall have been given away by the master, and by his donee or any other, and so by donee to donee, each will, in like manner, have an estate or interest for his own life in the slave. This exposition appears, on the whole, to satisfy the act, preferably to any other which has occurred; for let it suffice to state one con- sequence only, should the slave be adjudged transmissible to the executor, namely, that the goods of the testator coming to the execu- tor, subject to a power and trust to sell them, he may sell the whole of them (and he must sell a portion of them, if wanted, to raise moneys for the payment of debts and pecuni- ary legacies); and it not being possible to de- duce or conceive his life, or any other given time, as the limitation of a term for which only he may sell, he may therefore sell in perpetuity, and if so, then there may be a sale of a slave, as a slave, and neither the seller 448 be liable to the penalty, nor the slave be free, which is contrary to the express provision of the act. For these reasons, I am of opinion that the plaintiff is entitled to judgment. *LANSING, Ch. J., not having heard [*89 the argument in the cause, gave no opinion. Judgment for the defendant. l Affirmed- Post 488. Explained 11 Johns., 68, Cited in-17 Johns., 299. FISH v. FISHER. Slave Hired in this State Constructive Sale Act of February 22d, 1788 Freedom. Where a slave, aged twenty-five years, ran away from his master in New Jersey, and came to New York, and his master came to New York and there entered into an agreement by which he let the slave to a person in New York for twenty years, for the consideration of $225 ; giving full power to correct, imprison and exercise all the authority over the slave which the master could lawfully do; it was held to be an importation and sale within ihis State, within the meaning of the Act of 22d of February, 1788, concerning slaves, and that the slave was, therefore, free.- Citation Act of February 22d, 1788. JN homine replegiando. This cause came before the court on a special verdict. The material facts it contained are as follows: The plaintiff was the slave of one Van Voorst, who resided at Bergen, in the State of New Jersey. He ran away from his master, and came to tb,e city of New York. Van Voorst came to New York on the 26th 01 February, 1795, and entered into an agree- ment with the defendant, under his hand and seal, by which, for the consideration of $225, he let the plaintiff, who was twenty-five years of age, to the defendant for twenty years, with authority to correct, imprison, and exercise all such lawful authority over him, as he (Van Voorst) himself before that time might do. The defendant, who lived in New Yoijk, then took the plaintiff into his custody. The cause was argued by Messrs. Harison and Munro for the plaintiff, and by Mr. Evert- son for the defendant. Two questions were raised for the consider- ation of the court: 1. Whether the plaintiff was to be consider- ed as a slave imported or brought into this State, within the meaning of the 4th section of the Act concerning slaves, passed the 22d of February, 1788. (Greenleaf's ed. Laws, vol. 2. p. 85.) If so, then, 2. Whether the letting to hire, in the present case, was a sale of the plaintiff, as a slave, within the meaning of the act. *RADCLIFF, J. By the Act of the 22d [*9O of February, 1788, in order "to prevent the further importation of slaves into this State," it is enacted that if any person shall sell as a slave within this State any negro or other per- son who has been imported or brought into this State after the 1st June, 1785, he shall be deemed guilty of a public offence, and for- 1. This judgment was afterwards (1802) affirmed, in the Court for the Correction of Errors. JOHNSON'S CASES, 2. 1800 RUTGERS KT AL. v. LUCET. 90 feit 100., and the person so imported or brought into this State shall be free. 1. The first question is, whether the slave was brought into this State within the mean- ing of the act. 2. Whether the letting to hire, as above .stated, was a sale within the act. * With respect to the first question, although the preamble of the act seems to apply to the case of foreign importation only, yet by the enacting clause it manifestly extends to all cases of slaves in any way brought into this State. Here the slave eloped from his master. He certainly could not be said to be brought into this State, if the master, instead of re- claiming him, had not sanctioned his coming by the subsequent disposition of him to the defendant. He thereby made the change of the residence of the slave his own act, and the slave, by the consent of his master, be- came domiciliated here. This is the same, in effect, as bringing him, in the first instance, and I think equally within the mischief con- templated by the Legislature. If we should adopt a different construction, it would be easy for masters having the absolute control of their slaves to evade the prohibition, by suffering, or tempting them to escape into this State, and thus, by a new mode, introduce a fraudulent traffic, contrary to the intent of the act. The act, it is true, is highly penal, and ought, therefore, when it operates upon the offender, to be construed strictly; but it is also in favor of personal liberty, and to this end, when it operates upon the offense only, ought to be liberally expounded. 2. I think the letting of the slave to the de- fendant was a sale, designed to be in evasion of the act. It has all the characters of a sale, instead of a letting for hire. The considera- tion is equivalent to the ordinary value of a 9i*] slave. *It is a sum in gross, without any annual or other periodical reservation or payment, for services to be performed, and without any deduction, in case of the death or disability of the slave. The term of service is twenty years, by a slave advanced to the age of twenty-five, a period beyond the ordinary cal- culation of such a life, and the power granted over the slave is absolute and irrevocable. All these circumstances plainly indicate that the intent was to cover a sale, in evasion of the act. I am, therefore, of opinion, on both points, that the plaintiff is entitled to judgment. KENT, J. I am also of opinion that the case of a slave running away from his master into this State, and followed by the act of the master here in selling him within the State, is to be considered as a constructive bringing in- to the State, within the purview of the act. The subsequent sale by the master gives a sanction to the act of the slave, and may be deemed evidence of his assent. We may con- sider the act as intending to prevent not only a traffic in slaves, but the increase of them from abroad: and without adopting this con- struction, the act may, with great ease, be eluded. On the second question, it is a little difficult to draw the precise limit between a lawful hiring of a slave so imported, and a sale. JOHNSON'S CASES, 2. N. Y. REP., BOOK 1. But I think the judgment of law, upon the agreement stated in the verdict, must be that it is a sale within the act. It is for a sum in gross, equivalent nearly to the ordinary value of a slave, and for a term of years, equal to the value of his life. An absolute authority is also transferred over the person of the slave, and no annual or periodical render is reserved, which is the usual incident of a letting to hire. I am of opinion that judgment ought to be given for the plaintiff. LANSING, Oh. J., was of the same opinion. *BENSON, /. , dissented. He agreed that [*92 where a slave runs away from his master and comes into this State, and is retaken here and sold, the slave is to be considered as imported or brought in, and sold, within the intent of the statute. But, for the reasons given by him in the case of Sable v. Hitchcock, he did not think that the agreement in the present case was to be so understood, as made or intended, in fraud or evasion of the act, as that it ought to be construed a sale in perpetuity, or so as to produce the effect of making the slave free by law; but that, on the contrary, it was good for twenty years, if Van Voorst should so long live. LEWIS, J., also dissented. Judgment for the plaintiff. Distinguished 14 Johns., 269. Cited in 44 How., 193 ; 2 Rob., 253. RUTGERS ET AL. v. LUCET. Bailment Without Hire Agreement to Per- form in future Agent Personal Undertak- ing. A received f B a bill of exchange drawn by C, and which he promised to return to B on demand, or pay the amount thereof. Though the bill was received by A as a matter of courtesy, and was to be used for the benefit of B ; yet as A did not return the bill on demand, nor in due -season, he was held, under the circumstances of the case, liable to B for the amount. Citations Jones on Bailment, 40, 41 ; Ld. Raym., 919 ; 1 Salk., 26. was an action of assumpsit. The dec- -L laration contained six counts, upon an agreement made by the defendant to return a certain bill of exchange, delivered to him by the plaintiffs, and which they alleged was not returned. The cause was tried before the Chief Justice, at the last March circuit, in New York. The plaintiffs produced the following receipt by the defendant : " Received, New York, 25th March, 1796, of Rutgers, Seaman and Ogden, a draft drawn by Samuel Downing, in their favor, and accepted by Royal Flint, NOTE. Agreement to undertake a trust in the fu- ture without consideration ; entering upon tne trust. See Rutgers v. Lucet, swpra ; Coggs v. Bernard, 1 Smith's Leading Cases, 284 ; Edwards on Bailments, sec. 10 ; Story on Bailments (8th ed.), sec. 2, n. 4 ; Thorne v. Deas, 4 Johns., 84; Elsee v. Gatward, 5 Term Rep., 143 ; Balfe v. West, 13 C. B., 466. 29 92 SUPREME COURT, STATE OF NEW YORK. 180O bearing date the 14th August, 1795, at 60 days sight, for $601.88, which draft I promise to return them on demand, or the amount there- of." It also appeared from the evidence that the defendant so received the bill for the pur- pose of obtaining a credit for it to one Green- 93*] leaf against the *drawer, Downing, in an arbitration then depending between them, and, in this manner, to recover the amount for the plaintiffs. The defendant did this from motives of civility and friendship to the plaintiffs. The arbitration related to business in which the defendant acted as the attorney of Greenleaf , by virtue of a power for that purpose from him. The bill was immediately offered to the arbitrators, as an item in the ac- count of Greenleaf against Downing, and al- lowed by them. Their award was made on the 30th of March, 1796, about five days sub- sequent to the delivery of the bill to the de- fendant, and by this award, after crediting the amount of the bill to Greenleaf, he was still ordered to pay to Downing the sum of 5231. 3s. on the 20th April, then next. The award on that day was substantially performed by both parties, and the defendant paid that sum to Downing for Greenleaf, and informed Down- ing that he would also pay the amount of the bill to the plaintiffs. It appeared by a receipt of the plaintiffs that the defendant paid them on the 2d of December, 1796, on account of the bill, the sum of $140.84. This sum, how- ever, one of the witnesses, on the part of the defendant, stated, was money lent by the de- fendant to the plaintiffs, at their request, which they promised to return, in case the bill should not be recovered by the defendant. It also appeared that at the time the defend- ant received the bill, there was a suit depend- ing on it against the acceptor, Royal Flint; that interlocutory judgment was obtained in that suit, in April Term, 1796, and a writ of inquiry was noticed to be executed; that the plaintiffs then called at the defendant's house for the bill, in order to produce ft on execut- ing the writ; that they could not procure it on a'ccount of the defendant's absence from home, and the writ was not executed; that in June following, the plaintiffs called again for the same purpose, and could not get the bill for the same reason. They then mentioned the subject to the agent of the defendant, who promised to write for the bill and endeavor to procure it; but it was not procured, and the 94*] execution *of the writ of inquiry was again prevented. Sometime in June, 1797, the defendant was again called upon for the bill, and, for the first time, was personally seen, when he engaged to procure the bill by a certain day then agreed upon, in order that the writ of inquiry might be executed before the ensuing July Term; but it was not so pro- cured, and the writ of inquiry was again delayed. In the same month of July, and after the last application for the bill, the bail of Flint, who had previously removed to South Carolina, informed the plaintiffs that he had failed, and could not pay this debt, if a recovery should be had against him. After- wards, about the 3d of August following, the bill was tendered by the defendant to the plaintiffs, who refused to accept it. It had previously been deposited with one of the 460 arbitrators, to be delivered to Downing, in case the award should be complied with on his part, and the arbitrators, supposing it had not been complied with, sent the bill to the defendant. It did not appear that the defend- ant, at any time, informed the plaintiffs that the bill had been allowed to Greenleaf by the arbitrators, or that the award had been ful- filled by Downing, but merely that he told them that it was still in the hands of the arbi- trators. On this evidence, the judge, at the trial, was of opinion that the plaintiffs were entitled to recover, and a verdict was found accordingly. There had been a former trial in this cause, when a verdict was found for the defendant; that verdict was set aside, and a new trial awarded, on the ground that the evidence was imperfect, and the merits of the case so- obscure as to require a further examination. A motion was now made to set aside the present verdict, and for a new trial, which was argued by Messrs. B. Livingston and Bogert for the defendants, and by Messrs. Hariaon and 7V L. Ogden for the plaintiffs. Per Curiam. 1. The purpose for which the defendant took the bill was fully answered, when it was allowed by the *arbitrators [*95 to the credit of Greenleaf. This appears to- have been the object which the parties had in view, and the event on which, according to the tenor of the receipt, the defendant was to pay the money. At the time of obtaining this credit, or, at least, on the performance of the award, the bill was discharged, and became the property of Downing. The defendant could not then return it, within the spirit of his agreement with the plaintiffs, for it could not have been intended that he should have the liberty of returning it when satisfied and paid.. The plaintiffs could no longer maintain an action upon it; their debt was changed and converted into a demand against Greenleaf, or against the defendant. Although they might sustain their action against Greenleaf, we think they have also their remedy against the defendant. His stipulation expressed, in the receipt was to- return the bill or pay the amount. Here was a special undertaking, which, although gratuitous on the part of the defendant, was obligatory, for a mandatory or bailee, without compensation, may bind himself to be answer- able even for casualties. (Jones on Bailment, 40, 41; Ld. Raym., 919; 1 Salk., 26; see Tltorne v. Deas, 4 Johns. Rep., 84.) A mere agreement to undertake a trust, infutvro, with out compensation, it is true, is not obligatory; but when once undertaken, and the trust actually entered upon, the bailee is bound to perform it, according to the terms of his agree- ment. The confidence placed in him, and his undertaking to execute the trust, raise a suf- ficient consideration; a contrary doctrine would tend to injure and deceive his employer, who might be unwilling to consent to the bailment on any other terms. In the present case, taking the receipt in con- nection with the evidence that the defendent was to obtain a credit for the bill to Greenleaf, in the arbitration with Downing, the under- taking is to be considered as personal on his part, and to result in this, that if such credit JOHNSON'S CASES, 2. 1800 RICKETS ET ux. v. LIVINGSTON, EXECUTOR, &c. 95 was allowed, he would be answerable for the amount to the plaintiffs. It can admit of no other construction, unless we suppose the parties considered the defendant as acting also, in relation to this bailment, as the factor or agent of Greenleaf, and that they thereby meant to bind his principal only. This can- 96*] not well be supposed, *for it is wholly foreign from the nature and scope of such an agency. The engagement was therefore per- sonal, on the part of the defendant, and Green- leaf could never be liable on the ground of his agent's agreement respecting the bill, nor on any other ground than actually receiving the money to his use. But, 2. Supposing the bailment to the defendant to have been general, and that he was subject to no special agreement to return the bill or pay the amount, although acting gratuitously, he was still bound, according to the authorities on this subject, and the reason of the thing, to use a due diligence and attention, adequate to the trust reposed in him, to perform his engage- ment with good faith, and neither do nor omit anything which the nature of this trust re- quired. In the present case, the award, by which the bill was allowed to Greenleaf, was made on the 30th of March, 1796, and sub- stantially performed by Downing on the 20th of April following, and this performance made to the defendant himself as the agent of Greenleaf, who then also fulfilled the award on the part of Greenleaf. The defendant, there- fore, at that time, knew that the bill was satis- fied, and he informed Downing that he would pay the amount to the plaintiffs. If he was not liable to pay it himself, Greanleaf un- doubtedly was, and he ought, at least, to have given notice to the plaintiffs of its allowance to Greanleaf, and of their right to demand it of him. But instead of doing this, he continually kept them ignorant of its real situation, told them it was still in the hands of the arbitrators to be recovered, and amused them by sending for it to enable them to proceed in the suit against Flint. This conduct, considered as an omission of duty merely, was inconsistent with ordinary diligence and fidelity to the interest of the plaintiffs, and to the trust reposed in the defendant, and, in contemplation of law, it was gross neglect. If we add to this, his actually receiving the whole of the property awarded to Greanleaf, his paying the whole of the money awarded to Downing, and inform- ing him that he should pay this bill to the 97*] plaintiffs, and his afterwards *paying or advancing $140 of it on account, the circum- stances are sufficient to raise a presumption that he was possessed of the means, either from Greanleaf, or from the property received in pursuance of the award, to discharge the bill, and that he ought in good faith to have done it. The cause, during the last trial, has probably received all the light which can be thrown upon it, and the present verdict appears to be according to the justice and equity of the case. To permit the cause to be again agitated would answer no good purpose. We think, there- fore, that the verdict ought not to be disturbed, and that judgment must be entered for the plaintiffs. Judgment for the plaintiffs. JOHNSON'S CASES, 2. RICKETS ET ux. 0. LIVINGSTON, Executor, &c. Legacy Action Against Executor Set-off Cancelled Bonds Endorsement* Thereon Evidence Extinguishment. In an action brought by A against an executor for a legacy, the defendant offered in evidence an ac- count, and certain bonds which had been paid and cancelled by the testator, on which there was an indorsement by the testator that by agreement be- tween A and B they were to be charged to the ac- count of A, and the bonds were for that reason cancelled. The indorsement was prior to the date of will. It was held that the account and indorse- ment made on the bonds were not sufficient evi- dence to support the debt set up against A by the executor, and that if the debt had been proved, it would have been released or extinguished by the legacy. Citations 3 Bro. C. C., 110; Temp. Talbot, 240; Moseley,300; 3 Atk., 97: 1 Brown's C. L., 304; 1 P. Wms., 299,408; 1 Salk., 155; 3 Wood.. 538; 1 Bro. C. C., 129; 2Fonb., 320; 1 Bro. C. C.. 391 ; 2 H. Black.. 213 ; 1 Vesey, Jun., 472. rip HIS was an action of debt, upon the statute J. (24 sess.,. ch. 174, sec. 7) for a legacy due to the wife of the plaintiff, as residuary legatee, under the will of P. V. B. Livingston, deceased. Plea, nildebet. The cause was tried at the March circuit, before Mr. Justice Kent. The demand of the legacy was proved. The defendant, in sup- port of his right to retain, offered to prove that the testator married the mother of the plaintiff, who was the widow of William Rickets, de- ceased, and that a large account was entered in the testator's books against John Rickets, the plaintiff's brother, comprising, among *other things, the amount of several [*98 bonds, and other articles, paid for the account of the family of William Rickets, and among the rest, to the plaintiff, for which a balance was due to the testator, on the 2d July, 1784, of 600 6*. lid. The four bonds mentioned in the account were also offered in evidence. One of them was given to the tester, and the other three were paid and taken up by him. On each of the bonds was the followiug indorsement, in the handwriting of the testator: " 1791, No- vember 17. Upon the settlement of Jacob Rickets and James Rickets, the within bond charged in my account is to be paid by James Rickets, that is to say, the whole balance of my account due to me. I therefore gave the said bond to be cancelled, which was done in my presence, by tearing off the seals." This evidence was rejected by the judge, NOTE. Legacy to debtor. A legacy to one who at the date of the will is in- debted to testator, does not extinguish the debt un- less that appears to be the intention on the face of the will (Ricketts v. Livingston, supra), or is other- wise proven. Clark v. Bogardus, 2 Edw. Ch., 387 ; Stagg v. Beekman, 2 Edw. Ch., 89; see Sholl v. Sholl, 5 Barb., 312 ; Clark v. Bogardus, 12 Wend., 67 ; Sorelle v. Sorelle, 5 Ala., 245 ; Fitch v. Peckham, 16 Vt., 150 ; Zeigler v. Eckert, 6 Pa. St., 13 ; Coates v. Coates, 10 Jur. N. S., 532 ; Courtenay v. Williams, 3 Hare, 539; Eden v. Smyth, 5 Ves., 341; Strong v. Williams, 12 Mass., 391. As to release of debt by appointment of debtor as executor, see Needham's case, 8 Co. ,135 a ; Cheetham v. Ward, 1 B. & P., 630; Freakley v. Fox, 9 B. & C., 130. Legacy to creditor, see Williams v. Crary, 8 Cow., 246 ; S. C., 5 Cow., 368 ; 4 Wend., 443. 451 98 SUPREME COUKT, STATE OP NEW YORK. 1800 and a verdict was taken for the plaintiff, sub- ject to the opinion of the court, as to the ad- missibility and effect of the evidence. Mr. Hamilton for the plaintiff. Meszrs. Troup and Hanson f or the defendant. RADCLIFF, J. This is an action of debt for a legacy, bequeathed by the defendant's tes- tator to Sarah Rickets, one of the plaintiffs. The plea is nil debet, and the defendant insists on the right to retain the legacy, or a part of it, in satisfaction of the debt claimed to be due from the plaintiff, James Rickets, to the tes- tator. Two questions arise: 1. If such debt did exist, was it not released or extinguished by the subsequent will of the testator? 2. If not, whether there is sufficient proof of the debt. 1. If the debt did exist against the present plaintiff, James Rickets, the subsequent legacy to Sarah Rickets did not extinguish it. A legacy to one who, at the date of the will, is indebted to the testator, does not-release or ex- 99*] tinguish *the debt, unless it appears to be so intended, on the face of the will. It re- mains subject to the residuary, or other dispo- sitions of the will, and if not disposed of, will be decreed to the next of kin. In the case of Brown v. Selwyn (3 Bro. C. C., 110; Temp. Talbot, 240), there was parol proof that the testator intended the debt should be released, which was rejected. The legacy to Sarah Rickets, in the present case, is expressed in the same terms as the legacies given to the other daughters, being " in addition " to what he had already given them. There can, therefore, be no inference from this mode of expression, in favor of this particular legacy. It would rather seem that the testator meant to place all his daughters on the same footing; and if he had a different intention with respect to this debt, it is probable he would so have expressed it. The clause in the will requiring his son Philip to account for the moneys with which he stood charged in his books, deducting what he had paid for his son William, can have no influence on this question. It might require a different arrangement, and it does not appear that he stands, under the will, on the same footing with the daughters. If, therefore, the debt did exist, it cannot be considered as affected, or extinguished by the will. But. 2. I think there is not sufficient evidence to establish the debt. Originally, it was not a debt of either of the plaintiffs. The only evi- dence that it was assumed by James Rickets, arises from the indorsements on the bonds, in the handwriting of the testator. There is no other trace of the demand. It is not entered in his books, nor does it appear to have been afterwards claimed by him, or acknowledged by J. Rickets. The will is subsequent in date, and takes no notice of it. This, although not a positive release or bar to its recovery, is still a circumstance to weigh in the scale of pre- sumptions. James Rickets was married to a daughter of the testator, and the latter sur- vived the transaction for several years. If the debt ever existed, or was intended to remain a charge against James Rickets, it is probable that something further on the part of *the testator, at least, would have ap- [*1OO peared. On the whole, the circumstances are too loose and uncertain to be admitted as proof of the debt. Proceeding on this ground, it is unnecessary to decide whether in any, and in what cases, the acts of the testator may be received as evi- dence of a demand against his legatee. I think there may be cases in which it would be proper. The objections on the ground of in- terest do not apply as in ordinary cases. The relation between a testator and his legatee is not the same as that which usually exists be- tween parties litigating adverse claims, and, therefore, may admit of a greater latitude of proof. But the acts of a testator thus to affect a legatee, ought always to be express and unequivocal, and not liable to doubtful or uncertain construction. They are not so in the present case. If the transfer of the debt, in the manner al- leged, had been satisfactorily proved, I think there would be a sufficient consideration to support the assumpsit on the part of J. Rickets. By cancelling the bonds due from other per- sons, the testator destroyed his right of action, and was deprived of his remedy against them, and an injury or deprivation of right to one party, as well as a benefit to the other, is equally a good consideration for a promise. For the want of this proof, I am of opinion that the set-off cannot be allowed, and that the plaintiff must have judgment. BENSON, J., and LEWIS, J., were of the same opinion. KENT, J. The evidence having been re- fused at the trial, the question is, now, whether it was competent proof. It is an established rule in the Court of Equity that if a testator grant a legacy to his debtor, the debt is not thereby released, and that if a legatee sue for his legacy, the executor may deduct from his lesracv the amount of the debt. (Moseley, 300; Cas." temp. Talbot, 240; 3 Bro. C. C., 110.) But the indorsement on the bonds cannot be regarded as a debt, or as evidence of any assumption by the *plaintiff. The plaintiff had no in- [*1O1 terest or concern in the bonds, and no other charge or demand appears to have existed against him. The act of the testator in mak- ing the indorsements is no foundation for a suit against the plaintiff, at law or in equity. Shall it therefore go to defeat or impair the legacy? The general disposition of the equity courts is in favor of the efficacy and absolute nature of legacies. A legacy naturally implies boun- ty or benevolence, and it is, prima facie, to be presumed absolute. (Moseley, 300; 3 Atkyns, 97; 1 Brown's Civil Law, 304.) The courts, accordingly, lean against considering a legacy as payment, even of a debt, for as far as a legacy is applied to pay a debt, so far it is no legacy. It is making it a payment instead of a gift. (1 P. Wms., 299, 408; 1 Salk., 155; 3 Wood., 538; 1 Bro. C.C., 129; 2 Fonb., 320.) It is with the like disposition that the rule has been adopted that where the same sum is re- peated to a legatee in a codicil that was in the JOHNSON'S CASES, 2. 1800 BROOKS v. PATTEKSON. 101 will, he shall, prima fade, be entitled to both sums. (1 Bro. C. C., 391; 2 H. Black., 213; 1 Vesey, Jun., 472; 1 Brown's Civil Law, 304.) In the present case, if the indorsements be admitted as a competent set-off against the legacy, it will be rendering the legacy no legacy, to the amount of the indorsements. To place this objection in a stronger light: Sup- pose A gives $1,000 to B by will, and when B comes to demand the gift, the executor, to repel it, produces a memorandum in the hand- writing of A, found among his papers, charg- ing B with a debt of $1,000. If that memo- randum was to be considered as competent to extinguish the legacy, B might well say, the legacy was vox et preterea nihil. Without the legacy, the memorandum was a nullity. With the memorandum, the legacy becomes null. B is left in the same state exactly as if no will had been made. This is certainly repugnant to the ancient and sound maxims of interpre- tation. Verba debent intelligi cum effectu. [Ttile. per inutile non mtialur. 1O2*] *The position is altogether new that a demand, valid in law, can be repelled by a counter demand which cannot support a suit, either at law or in equity. The rational doctrine of set-off was intro- duced from the civil law, to prevent circuity of action, and not to give efficacy to claims which had none before. The indorsements on the bonds have no connection with the will, and cannot therefore be reached by the rule, that one declaration or act is to be construed or explained by another. Nor do I see that it will tend to promote the truth or justice to admit the naked declarations of a testator, in a case totally detached from his will, and which would otherwise be of no avail or consideration in law, to defeat or con- trol the provisions of an instrument, which the law has generally taken care to secure, by very minute regulations. I am of opinion, there- fore, that the evidence offered was incompe- tent. LANSING, Ch. J. , not having heard the argu- ment in the cause, gave no opinion. Judgment for the plaintiff. Cited in 12 Wend., 69 ; 34 N. Y., 183 ; 4 Hun, 197. BROOKS 0. PATTERSON. Attorney Privilege Lost. An attorney of this court who has ceased to prac- tice for a year, and had entered the Army of the United States, was held to have lost his privilege. Citations 2 Wils., 231, 232; 4 Burr., 2113, .&c.; 1 Vent., 1 ; 2 Lutw., 1664. THIS was an action of assumpsit. The dec- laration was on a promissory note made by the defendant. The defendant pleaded that at the time of exhibiting the bill, he was one of the attor- neys of this court, and is still an acting attorney, and that attorneys are not, by cus- tom, to answer any bill exhibited against them, as in custody of the sheriff, but only to JOHNSON'S CASES, 2. bills exhibited against them, *as attor- [*1O3 neys, and concluded by praying judgment, if he ought to answer. The plaintiff replied that the defendant had, for one year before exhibiting the bill, &c., ceased to practice as an attorney, and for that time had been, and yet was, a captain in the Army of the United States. To this replica- tion there was a demurrer and joinder. Mr. Munro for the plaintiff. Mr. Biker for the defendant. Per Curiam. If an attorney ceases to prac- tice for a year, not in consequence of any temporary absence or avocation, but by betak- ing himself to a profession or business, in- compatible with his practice as an attorney, the reason of his privilege ceases. Attendance is the ground and foundation of the privilege. The object is that attorneys may not be drawn into other courts, or to other business, to the injury of the suitors. (See 2 Wils., 231, 232; 4 Burr., 2113, &c.; 1 Vent., 1; 2 Lutw., 1664.) The privilege is that of the court, for the sake of public justice, and is not intended as an accommodation to the individual. Here it appears upon the record that the defendant had become an officer in the army, and had ceased to practice for a year. It would be inconvenient, and an abuse of the end of privilege, to allow it in this case, not- withstanding the name of the defendant still remains on the rolls of the court. We are of opinion, therefore, that judgment must be rendered for the plaintiff. Judgment for the plaintiff. *PHILIPS v. PECK. [*1O4 1. Stipulation to Try Cause Failure Nonsuit Costs. 2. Relief Descretionary Costs. Where the demandant in a real action enters into a stipulation to try the cause or be nonsuited, he must pay the costs of the last circuit or sittings, in the same manner as plain tiffs -in other causes, for not proceeding to trial. Citations-10 Co., 116; 1 H. BL, 11, 12; 7 Term R., 268; 2 H. Black.. 1093; 1 B. & P., 104 ; 1 Salk., 38 ; 2 Cromp., 468 ; 2 H. Bl., 119 ; 1 Bos. & Pull., 38. was an action on a writ of right. The J_ tenant moved the usual rule against the demandant, for judgment as in cases of non- suit, for not proceeding to trial at the last circuit. The demandant entered into the usual stipulation, and the question was, whether he should pay the costs of the circuit. Mr. Harison for the demandant. Mr. P. W. Radcliff for the tenant. Per Curiam. It is a long established rule of law that the demandant, in a real action, neither recovers nor pays costs, because he recovers no damages (10 Co., 116; 1 H. Bl., 11, 12; 7 Term Rep., 268), and, therefore, although he is liable to judgment, as in cases of nonsuit, for not proceeding to trial, yet in that case he pays no costs, because the act 453 104 SUPREME COURT, STATE OF NEW YORK. 1800 only gives costs in cases where the plaintiff, upon nonsuit, would be entitled to them. (2 Black Rep., 1093; 1 B. & P., 104.) But, in many cases, the courts interpose and relieve upon certain terms, which they, in their dis- cretion, -may impose. One of these usual terms, is the payment of costs. Costs, in such cases, do not depend upon any statute, but upon the equity and discretion of the court. Putting off a trial for the absence of a wit- ness is an instance of costs being imposed as a consideration of the rule (1 Salk., 38), and, no doubt, a tenant in a writ of right would be obliged to comply with the consideration, as he is, equally with any other defendant, within the equity of the rule. The case of amend- ments (2 Cromp., 458) may be mentioned as another instance of costs being imposed as a condition of the favor, and to which the party applying must conform, whether he be party to a real or personal action. The present case is of a similar kind. It is not long since that the court adopted the rule not to nonsuit for the first default, in not pro- ceeding to trial, according to the course 1O5*] *of the court, provided the plaintiff would stipulate to try the cause at the next circuit, or be nonsuited. 1 But the payment of costs for not proceeding to trial was very soon added, as an equitable condition of the indulgence until another cir- cuit; and the payment of costs, for default at the preceding circuit, and of the motion, is now considered as a matter of course. We are of opinion, therefore, that the de- mandant can only be admitted to his stipula- tion, upon the usual terms, of payment of costs; and that he ought to pay them, otherwise judgment may be entered against him, as in cases of nonsuit, nunc pro tune. Cited in 10 Wend., 606. CAMBPELL, Assignee, &c., v. GROVE. 1 . Stay of Proceedings Agreement Payment of Costs Neglect Continuation of Suit. 2. Motion Counter Affidavits Service. 3. Id. Supplemental Affidavits. Where a party agreed to stay proceedings in a bail- bond suit, on payment of costs, the original suit having- been settled, and the defendant neglecting 1 to pay the costs, the plaintiff proceeded in the bail- bond suit, the court refused to set aside the proceed- ings, as the plaintiff had no other way to obtain his costs. Counter affidavits may be read to oppose a- motion, though copies have not been served. But supplementary affidavits, in support of a motion, cannot be read.; MR. TENBRCECK moved to set aside the proceedings on the bail-bond in this case, on the ground that the plaintiff had settled with the defendant in the original cause, be- fore the commencement of this suit, and had directed the attorney to stay proceedings, but who had, notwithstanding, proceeded. Mr. Emott produced counter affidavits, which were objected to, because the defendant had not been made acquainted with their contents, previous to their being read in court, but the l.-See 2 H. Bl., 119; 1 Bos. & Pull., 38. 454 objection was overruled. It appeared that the original cause was commenced in July vaca- tion, 1797; that in November, an accommoda- tion was made between the parties-, and the plaintiff then directed the proceedings to be stayed on the payment of costs. The costs remaining unpaid, a suit was instituted on the bail-bond, in April *vacation, [*1O6 1799, and the defendant put in a plea of non estfactum, in October vacation follow- ing. Mr. Tenbrosck, in reply, offered counter supplementary affidavits, but the court would not suffer them to be read; observing that a party can never support his motion by any affidavits but those on which he originally grounds it. Per Curiam. The defendant must take nothing by his motion. The attorney had no other way of compelling the payment of his costs, than by the suit on the bail-bond. Be- sides, the defendant had suffered such a length of time to elapse, that we would not now relieve if there had been originally just grounds for such interference. Rule refused. JACKSON, ex dem. VAN ALEN, v. VISCHER ET AL. 1. Ejectment Pleading Time Consent Rules. 2. Defaull^Entry. In ejectment, the tenant must plead at the time he signs the consent rule. A default for want of a plea must be entered against the casual ejector, not the tenant. MR. TENBRCECK moved to set aside a default entered against the tenant for not pleading. It appeared that the consent rules were entered into and a new declaration delivered, but no plea having been filed, a judgmeht was entered by default against the tenant. Mr. Emott, contra. Per Curiam. Although at the time of sign- ing the rule, the plea ought to have been put in, yet the entering the default* in this [*1O7 manner was improper. It should have been against the casual ejector, according to the terms of the consent rule. There can be no judgment by default against the tenant. Rule granted. IN THE MATTER OF CASCADEN, an Abscond- ing Debtor. Absent or Absconding Debtor Trustees Account- ing. The trustees of an absent or absconding 1 debtor may be compelled to account, on the motion of the debtor, as well as of the creditors. MR. METCALF, in behalf of the debtor, moved that the trustees be laid under a rule to report within eight days. JOHNSON'S CASES. 2. 1800 GORHAM v. LANSING AND DOE. 107 Per Curiam. The debtor, as well as his creditors, has an interest in the account to be rendered by his trustees, and they are to account on the application of the debtor or creditors. The Chief Justice having reported the proceedings before him, the court is in possession of the cause. Let there be a rule that the trustee* report with- in eight days after service of a copy of such rule. GORHAM v. LANSING AND DOE. 1. Time to Plead Application for. 2. Default Application to Set Aside Bail. If a party wants time to plead, he must apply to a judge for that purpose. In an application to set -aside a default for not pleading 1 , bail are not entitled to any peculiar indulgence. MR. FOOT moved to set aside the default entered in this cause, upon an affidavit of merits, and that the omission to plead was oc- casioned by urgent business. He stated that it was a case of bail, and was therefore to be considered as one which was entitled to the grace of the court. Mr. Lush, contra, read counter affidavits as to the merits. 1O8*] *Per Curiam. If a party wants more time to plead, he must apply to a judge, at his chambers, to enlarge the rule. This is stated to be an application in favor of bail, but it should be remembered that the cases of bail to which the court are particularly indulgent, are where bail wants time to surrender the principal, but here he comes to defend the suit, and there- fore stands in the same situation with any other defendant. Motion denied. VAN PATTEN v. OUDERKIRK. Justice Certiorari Motion to Quash Return. A justice cannot move to quash a certiorari di- rected to him. He must obey it at his peril; and return what is legally required of him, and take no notice of what he is not bound by law to return. i~\N certiorari, from a justice's court. Mr. Emott, in behalf of the justice, moved to quash the writ, because it required him, .among other things, to return the testimony. It was admitted that no notice had been given to the opposite party, but it was contended that none was necessary. Per Curiam. This writ is the right of the party who takes it out, and the justice is bound to obey it at his peril. If he is not a party, it does not lie with him to move that the writ should be quashed. He is not, however, bound to return anything but what can legally be required of him, notwithstanding the com- mand expressed in the writ. In this case he JOHNSON'S CASES, 2. ought to return all but the testimony; he need take no notice of that part of the precept which enjoins him to return that. Rule refused. S. C., Col. & Calnes, 119. Cited in ^5 Wend., 169 ; 5 Hill, 268. *PFISTER AND M'COMB [*1O9 v. GILLESPIE. Costs Security for Attorney. The attorney is not bound to file security for costs, where one of the plaintiffs resides in the State, though he may be insolvent. Citations 1 H. Bl., 106 ; 2 H. Bl., 27. MR. PENDLETON, in behalf of the de- fendant, moved that the plaintiffs file security for costs before they be allowed to proceed in the suit. He read an atfidavit stat- ing that one of the plaintiffs had removed to New Jersey since the commencement of the suit, and that the other was confined in jail for debt; and further, that the defendant was informed and believed that the cause of action was assigned. Mr. B. Livingston, contra. Per Curiam. It is sufficient that one of the plaintiffs resides within the reach of the pro- cess of the court; we can take no notice whether he is insolvent or not. And as to the assignment, the defendant has nothing to do with it. (1 H. Bl., 106; 2 H. Bl., 27.) Motion denied. ANDREWS v. ANDREWS. Witness Subpoena Refusal to Obey Attach- ment. Where a witness refuses to obey a subpoena which has been regularly served upon pirn, the court will grant an attachment against him in the first in- stance. Citations 1 Str., 1150 ; 1 H. Bl., 49. MR. TENBRCECK moved for an attach- 'ment absolute against a witness, on an affidavit that he was regularly summoned and money tendered him for his expenses, which he did not object to for its insufficiency, but positively refused to attend. *Per Curiam. Here is a strong case [*1 1O of palpable contempt, and, therefore, the court will award an attachment in the first in- stance. (1 Str., 1150; 1 Hen. Black., 49.) The sum of money tendered may or may not have been adequate, but as the witness aid not ob- ject to it at the time, it is to be considered suf- ficient. Rule granted. Cited in 1 E. D. Smith, 504. 455 110 SUPREME COURT, STATE OF NEW YORK. 1800 JACKSON, ex dem. QUACKENBOSS, v. WOODWARD. Ejectment Simultaneous Acts Plea Neglect to File Default. In ejectment, signing the consent rules, delivering a new declaration, putting in common bail, and fil- ing a plea, are all simultaneous acts. And if the tenant neglects to file the plea instanter, default may be entered against the casual ejector. IT appeared that the plaintiff's attorney, at the time of delivering a new declaration, after the consent rules were exchanged, not having received a plea, entered a rule in the cause against the tenant, to plead in twenty days; which not being done, he proceeded to enter a default against the casual ejector. Mr. Emott now moved to set aside this de- fault for irregularity. Mr. Quackenboss, contra. Per Curiam. The entry of the default in this manner was certainly irregular. No rule could be entered against the casual ejector in a cause entitled against the tenant. The sign- ing the consent rule, delivering a new declara- tion, putting in common bail, and filing a plea, are all simultaneous acts; should the tenant, therefore, neglect to file his plea instanter, he is to be considered as not appearing in the suit, and then a default is to be entered against the casual ejector. But the default against the casual ejector has been taken under the first rule at the return of the writ, and not in consequence of any new rule. Rule granted. 1 1 1*] *WHEATON . SLOSSON. Assumpsit Change of Venue Affidavit. In an action of aesumpsit, the venue will not be changed on the general affidavit. MR. TENBRCECK moved to change the venue, on an affidavit that the cause of action arose out of the county. Mr. Emott, contra, objected that this being an action for money had and received, a gen- eral affidavit was not sufficient. Per Curiam. It has already been decided that in assumpsit, where the count is general, the court will never change the venue on a general affidavit. To entitle the defendant to prevail in his motion, the affidavit must be special, that is, it must state that the defend- ant has reason to believe that special matter is intended to be given in evidence, enumer- ate the particulars, and declare that it arose in the county to which he would remove the cause, and not elsewhere. Motion denied. 456 KNAPP 0. MEAD. Trial by Record Motion Time. A trial by record is to be brought on by motion^ pursuant to a notice of four days, as in other spe- cial motions. THIS being the day assigned for the trial by the record, on which this suit was brought, Mr. Beers now moved to bring it on, but it was objected in behalf of the defendant that there ought to have been a regular notice of trial of eight days, as in other cases, which had not been given. *The court took time to consider [* 1 1 2 how the practice ought to be settled. Per Curiam. The trial by record must, hereafter, always come on by motion, pursu- ant to a notice of four days, instead of the old practice of assigning a time, which the present rules render useless. Cited in 59 N. Y., 91. SWIFT 9. LIVINGSTON. Ejectment Notice Default Quarto die post Nonsuit. The tenant in a writ of right may be called on the first day of the term, and his default entered for his non-appearance, and if he does not appear, on the Cfuarto die post, and excuse his default, he will be nonsuited. Citations Carthew, 173; Co. Litt., 139, b. MR. EMOTT, for the tenant in a writ of right, moved on the first day of the term that the demandant be called, and that his default be entered for his non-appearance. And this being the quarto die post, he again moved that the demandant be called to appear and excuse his default, or that he be non-suit- ed. (Vin. Abr., 436, 9, 10, and 439, 19.) Mr. Scott, contra. Per Curiam. In the case of Clobery v. The Bishop of Exon (Carthew, 173), it was decided that the tenant in a writ of right is only demand- able on the quarto die post; but that the demandant is liable to be called on the primo die placiti, 'and in case of ndn-appearance his. default may be entered, which, if he does not appear and excuse on the quarto die post, he is liable to a nonsuit. (Co. Litt., 139, b.) At common law, on every continuance or day given, at or before judgment, the plaintiff or demandant might have been nonsuited; and before the stat. of Henry IV. , after verdict, if the court gave a day to be advised, at that day *plaintiff was demandable, and, there- [*11> fore, might have been nonsuited if he did not then appear; but that is remedied by our stat- ute. After an award to answer, however, or a demurrer in law joined, the plaintiff for not appearing shall still be nonsuit, for he is not helped by the statute. Judgment of nonsuit. JOHNSON'S CASES, 2. 1800 M'KINSTRY v. EDWARDS. 113 M'KINSTRY v. EDWARDS. Default Set Aside Affidavit of Merits Excuse. A default for not pleading 1 , will be set aside on an affidavit of merits, if the defendant also shows a satisfactory excuse for not pleading. ON a motion to set aside the default, and that the defendant have leave to plead, on the sole ground that he had merits, the plaintiff not having lost a trial. Per Curiam. When a party swears to mer- its, the court will strongly incline to let him in, but he must be able to suggest some excuse for not having pleaded, such, perhaps, as accident or inadvertence. Here the defendant does not attempt to give any reason at all, and, therefore, he must take nothing by his mo- tion. Rule refused. 1 14*] *JACKSON, ex dem. LEWIS, ET AL. LARROWAY. Trial Postponement on Payment of Costs Continuation Taxation Service Attach- ment Instanter. Where the trial of a cause is put off, on payment of costs, the plaintiff may demand the costs immedi- ately, and if not paid, may proceed in the cause, or he may have the costs regularly taxed on due notice, and if after service of the taxed bill, the costs are not paid, he may take out an attachment instanter. Notice of taxing costs must be served on the attorney, not on counsel. Citation 1 Salk., 83. MR. VAN VECHTEN moved to set aside the attachment in this cause, which had been granted for the costs of putting off the trial, and that there should be a relaxation. He contended that attachments are ordina rily granted on rules to show cause, and are never made absolute in the first instance, but in very flagrant cases; and that if the party answers, he shall be discharged from the attachment, and cited 1 Bac. Abr., 183 (B); 2 Hawk. Plea. Cr., 214. He further insisted that there must be a demand made of the costs, after the bill has been regularly taxed, before the party can be considered as in contempt. (Barnes, 120; 1 Lilly's Abr., 162.) Besides, he insisted that according to 1 Salk., 83, no attachment will lie at all for the costs of putting off a trial. Mr. L. Elmendorf, contra, contended that in England the attachment is always absolute in the first instance. He cited Tidd's Pr., 364; Runnington on Ejectment, 142; 1 Sellon, 415. Per Curiam. Whenever a cause goes off, on motion of the defendant, upon payment of costs, the plaintiff has his election, either to wait the event of the suit, and have all his costs taxed together, or he may make them out instanter, under the direction of the court (subject, however, to be reviewed on a future taxation, if required), and demand them im- mediately, and if not paid, he may proceed with the trial; or he may waive this priv- ilege, and resort to an attachment, but if he does so, he must first have his costs regularly taxed, on a proper notice, as in other cases, JOHNSON'S CASES, 2. and that notice must be served on the attor- ney in the suit, and not on the counsel, as has irregularly been done, in *this instance. [* 1 1 5 Had he been regular in this, he would have been entitled to his attachment instantly, without a previous notice. The notice in this case having been served on counsel, and the taxation having been made on the same day notice was given, the taxation and all proceedings founded on it were irregular. The case mentioned from Salkeld is anony- mous, and standing alone, we think it not entitled to weight. The attachment must be set aside with costs. Rule granted. Cited in 19 Johns., 270 ; 63 Barb., 104. JACKSON, ex dem. Low, . HORNBECK. Making Case Enlargement of Time. The two days allowed by the rule of January Term, 1799, for making 1 up a case cannot be enlarged by the order of a judge. Citation 6th Rule, January Term 1799. MR. BOWMAN moved to vacate a certificate of a judge, giving further time to make up a case. Mr. L. Elmendorf, contra. Per Curiam. The two days allowed by the 6th rule of January Term, 1799, for making a case, cannot be enlarged by a judge, in favor of a party making the case; but the time, which may be enlarged, under that rule, is that allowed for proposing amendments, and for giving notice of an appearance before the judge, and no other. Rule granted. Overruled 9 Johns., 264. *SCOTT v. GIBBS. 1. Change of Venue Affidavit Plaintiff's Con- fession. 2. Counter Affidavit. An aflBdavit to change the venue made by the de- fendant's attorney, stating that the plaintiff con- fessed that the cause of action arose in another county, is sufficient. A counter affidavit of the plaintiff, that he believed he could not have a fair trial, &c., is not enough ; it ought to state the facts on which the belief is founded. Citation-3 Burr., 1380, 1335 ; 1 Sellon's Pr., 169. R. WOODWORTH, for the defendant, moved to change the venue in this cause, I NOTE. Change of venue on ground that cause of action arose in another comity. See Bentley v. Weaver, 1 Johns. Cas., 240, and note in this edition. Change of venue on the ground that fair trial could not be had. See Van Rensselaer v. Douglas, 2 Wend., 290; Zobieskie v. Bauder, 1 Caines, 487; People v. Webb, 1 Hill, 179; Messenger v. Holmes, 12 Wend., 203 ; Corporation of New York v. Dawson, <*f 335 ; People v. Long Island R. R. Co., 16 How. Pr., 106; Budge v. Northam, 20 How. Pr., 248. Affidavit, what it nntxt contain. People v. Bodine, 7 Hill, 147 ; People v. Vermilyea, 7 Cow., 137. Consult also General Rules of Practice (N. Y., 1880), 47 and 48, pp. 156-160, and cases there cited. 457 116 SUPREME: COURT, STATE OF NEW YORK. 1800 which was an action of slander, from the County of Albany to Washington; he read an affidavit of the defendant's attorney, stating that the cause of action arose in Washington, and not elsewhere, &c., as the plaintiff had in- formed him, and he verily believed to be true. On the part of the plaintiff, this was opposed by a counter affidavit, stating that "according to his persuasion and belief, he could not have an impartial trial in the County of Washing- ton, by reason of certain local prejudices. Per Curiam. The first question is, whether the affidavit on the part of the defendant ought not to have been made by the defendant him- self, according to the established practice? As the attorney swears, however, that the plaint- iff confessed to him that the cause of action arose in Washington, and not elsewhere, &c., this may be deemed sufficient, especially as the fact is not denied by the plaintiff. As to the counter affidavit, it cannot avail to retain the venue, inasmuch as the defendant only swears to "his persuasion and belief that he cannot have a fair trial, by reason of certain local prejudices," fec. He ought to have stated the reasons and ground of his belief, and have laid before the court the facts and circumstances on which it depends, that they might judge of its probable truth and force. He merely states his own conclusions, without stating also the premises on which his belief is grounded. (3 Burr., 1380, 1335; 1 Sellon's Prac., 169.) Rule granted. 117*] *SHARP v. DUSENBURY. Writ of Inquiry Evidence Agreement to Admit, Effect of. If parties agree that the sheriff may admit any evidence, on a writ of inquiry before him, which could have been given on a trial, the court will not set aside the inquisition, because improper evidence had been received or proper evidence rejected by the sheriff. ~|\TR. P. W. YATES moved to set aside an ITJL interlocutory judgment, because the sheriff before whom the inquisition was taken had admitted improper and rejected proper evi- dence. Mr. Emott, contra, read an affidavit that it had been agreed between the parties that any evidence might be given before the sheriff which could be given on a trial, or could have been pleaded. Per Curiam. The parties, by their agree- ment, made the sheriff as a judge at a circuit; and when parties agree to submit a controversy to the decision of the sheriff, the inquest is to be considered as in the nature of an arbitra- tion, and in such case the court will never set aside the inquisition merely because the sheriff admits improper, or rejects proper, evidence. Motion denied. PADDOCK v. BEEBEE. Service of Affidavit on Clerk. An affidavit of service on a clerk of the attor- ney, must state that the clerk was, at the time, in the office of the attorney. 45H A QUESTION arose as to the regularity of a 11. service of a notice, which appeared from the affidavit to have been made on the clerk of the attorney; the court decided that as it did not also appear that the notice was served on the clerk, while he was in the office, it was therefore insufficient. *THE PEOPLE, ex rel. [*118 ALLAIRE, THE JUDGES OF' WESTCHESTER. 1. Mandamus Refusal to Seal Bill of Excep- tions. 2. Id. Cause for Refusal. If a court of common pleas, without sufficient ground, refuse to seal a bill of exceptions, it is a contempt, and this court will award^a mandamus, to compel them to sign it. Citation 2 Inst., 4ZT. ON an affidavit that a bill of exceptions had been regularly tendered to the judges of the Court of Common Pleas of the County of Westchester, who had refused to seal the same. Mr. Troup now moved for a mandamus to compel them to affix their seal to the bill of exceptions, or show cause. Mr. Munro read a counter affidavit, stating that the bill of exceptions, varied materially from the truth of the case. Per Curiam. If a Court of Common Pleas refuses, without sufficient grounds, to annex their seal to a bill of exceptions, it is a con- tempt for which this court will award com- pulsory process. (2 Inst., 427.) But it appears here, from the affidavit on the part of the de- fendants, that the bill of exceptions which was tendered was untrue, and as the party making the application has not denied the correctness of the statement, he must be considered as having consented to it. This, undoubtedly, was sufficient cause for refusal. Motion denied, with costs to the judges for op- posing it. Cited in-1 Hun, 262 S. C., 4 T. & C., 9 ; 47 How. Pr., 162. *PEPOON v. JENKINS. [* 1 1 9 Judgment Circuit Court of V. S. Action on Record Evidence. In an action brought on a judgment of the Circuit Court of the United States for the District of Massa- chusetts, the production of the record, under the seal of the court was held sufficient. THIS was an action of debt, brought upon a judgment rendered in the Circuit Court of the United States for the District of Massa- chusetts. On the plea of nul tiel record, the plaintiff offered in evidence a record under the seal of the court, but certified by the clerk, as a copy. Mr. E. Williams, for the defendant, objected, that there ought either to be an exemplification of the record, or that the action, being brought in a court of this State, upon a record of a judgment rendered in a circuit court of Massa- JOHNSON'S CASES, 2. 1800 JTJHEL v. RHINELANDER. 119 chusetts, the record ought, agreeably to the act of Congress, to have the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, Chief Justice, or presiding magis- trate, that the attestation is in due form. Per Curiam. This being a record of a court of the United States, and not of a State court, and so not within the act of Congress prescrib- ing the mode in which the records and judicial proceedings of the courts of any State shall be authenticated, it remains with the court to de- cide upon the sufficiency of the evidence. The mode of certifying the record in the present case, being the ordinary mode used in Massa- chusetts, instead of the technical exemplifica- tion, we are of opinion, as it is also under the .seal of the court, that it is sufficient. 12O*] *JUHEL0. RHINELANDER. Marine Insurance "Contraband of War" Lawful Goods Disclosures. Articles contraband of war are lawful goods, within the meaning of those words in a policy of insurance. Goods not prohibited by the laws of the country to which the vessel belongs, are lawful Broods, and the insured are not bound to disclose to the insurers that the goods are contraband of war. Affirmed in the Court of Errors (1802). Citation 1 Johns. Gas., 1. THIS was an action on a policy of insur- ance, dated the 24th November, 1796, on the brig Jenny, at and from New York to Cayenne, and at and from thence back to New York, with liberty to touch at Jacquemel. The policy was in the usual form without any warranty. The cause was tried at the circuit in New York, in November, 1799, when the jury found a special verdict. The vessel sailed on the voyage insured, and on the 24th January, 1797, on the homeward voyage, was captured by a British cruiser and carried into St. Christophers, where she was libeled with her cargo. On the 15th April, 1798, the vessel and all her cargo, except two casks of nails, were acquitted, and on the 29th April, restored to the captain. The two casks of nails, under the name of scupper nails, were condemned as good and lawful prize, as being articles contraband of war, or otherwise subject and liable to confiscation. No dis- closure was made to the defendants that any contraband articles were on board. On the 4th May, a survey of the vessel was made, at the request of the captain, under the authority of the court, and the brig, on the report of the surveyors, was condemned as unfit for sea, and was sold. The vessel and cargo were abandoned to the insurers, on the 5th May, 1798. Mr. Ilarison for the plaintiff. Mr. Hamilton, for the defendant, declined arguing the cause. He said that he considered NOTE. Marine insurance, lawful goods. See Seton v. Low, 1 Johns. Gas., 1; Gardiner v. Smith, 1 Johns. Gas., 141; Skidmore v. Desdoity, ante 77, and notes in this edition. JOHNSON'S CASES, 2. the case of Seton, Maittand' & Co. v. Low (1 Johns. Cas., 1), as decisive, unless the court should think proper to alter their opinion; that the object of the special verdict in this cause was merely to have the judgment of the court, in order to bring the [*121 question before the Court for the Correction of Errors. The court (Benson, J. , dissenting) said that they considered the decision in the case of Seton, Maitland & Co. v. Low, as conclusive, and that the plaintiff was entitled to judgment accordingly. Judgment for the plaintiff. ' Affirmed Post, 487. Cited in-12 Wend., 466. WARDELL v. EDEN. 1. Judgment Satisfaction by Assignor Vacated. 2. Assignee's Rights. 3. Service Notice After Appearance. Where the plaintiff after he had assigned a judg- ment to a third person, entered up satisfaction on the record, the court on motion ordered the entry of satisfaction to be vacated. Courts of law will take notice of and protect the rights of assignees. Where an attorney is employed, notice must be served on him, not on the party. Citations 1 Term R., 619 ; 4 Term R., 340; Viner's Abr., Judgment K., a. 636, sec. 4, 5, 6 ; 1 Wils., 33 ; Sayer, 253 ; Barnes, 130 ; 1 Sell., Pr., 14 ; Sayer, 217 ; 2 H. BL, 608 ; 1 Bac. Abr., Attorney, 299 ; 1 Sell., 546 ; 1 Crompt., 378 ; Impey, 408 ; T. Raym., 69 ; 2 Sell., 338 ; 3 Salk., 245 ; 8 Mod., 58 ; 2 Bl. Rep., 621 ; 4 Term R., 341, 640; Doug., 338; 6 Term, 361; 1 Sell., 377; Cow., 727. MR. HAMILTON moved to vacate the en- try of satisfaction on the record in this cause. It appeared that a bond had been executed on the 15th June, 1800, by Eden to Wardell, conditioned for the payment of $50,000, and a judgment was entered upon the bond on the 8th July last, by virtue of a warrant of attor- ney for that purpose, with a stay of execution for six months. On the 17th of July last, the judgment was assigned, for a valuable consid- eration, to Nathaniel Olcott, and by him, on the 1st of August, to Solomon Rowe, and by him, on the 7th of October, to the Bank of New York. On the 7th day of October, Olcott became a bankrupt, and on the next day Rowe died insolvent. The bank, on the 9th October, gave notice to Eden of the assignment to them, and forbade his paying any part of the bond to Wardell, and also gave a notice to Wardell, forbidding him to receive anything from Eden. On the 6th day of October, Eden paid Wardell a small sum of money, and on the 10th October, Wardell entered upon the record a satisfaction of the judgment. The bond was originally given both for money due *and to secure such further sums as [*122 Wardell should continue to advance. The present motion was made in behalf of the Bank of New York. 1. A writ of error was afterwards brought, and the judgment was affirmed in the Court of Errors, in 1802. NOTE. Right* of a&tiwif-es. See Andrews v. Beecker, 1 Johns., 411. 122 SUPREME COURT, STATE OF NEW YORK. 1800 The notice of the motion had been served on the attorney of the defendant, by leaving it at his office, and on the defendant himself, by delivering it to his brother. The attorney \vas only named in the warrant of attorney, to confess judgment on the bond. Mr. B. Livingston raised a preliminary ques- tion, whether the service of the notice of the present motion had been regularly made, as it had only been given to Eden's brother, who happened to be at Eden's house, and it did not appear that it had ever come to his personal knowledge; or, 2d, as it had been giveii to Eden's attorney, by leaving it with his (the attorney's) brother, who happened to be alone in the office. THE COURT. Both services cannot be good: wherever there is an attorney retained, the service must be on him ; therefore the service on Eden himself was irregular, but the service on the attorney's brother, being in his office, was good. LANSING, Ch. J., and LEWIS, J., were of opinion that the attorney in this case, being constituted only an attorney to confess judg- ment, his authority expired with the act, and therefore he could no longer be consid- ered as attorney in the suit, but they both agreed that the service on Eden was well made. Some further affidavits were read on both sides. Messrs. Hamilton and Harison then con- tended that in this transaction a fraud had 1 23*] been practised between Eden and *War- dell on the bank, by entering up the satisfac- tion after notice, which must have been done to defeat the lien which the judgment had given upon Eden's real estate. They insisted, 1st. That the entry of satisfaction was irregu- lar, because it was done by the party himself, and not by his attorney. Though, by statute, a party might possibly "appear, prosecute, defend, &c., in person," yet that after he had once made an election to appear by attorney, he could not appear in the silit in proper per- son. Notwithstanding the suits are in the names of the obligees, yet courts of law will always take notice of the rights of assignees, and protect them from injury, so that substan- tial justice may be done between the parties. (1 Term Rep., 619; 4 Term Rep., 340). The court may interpose in this summary way, and lay their hands at once on the judgment, without turning their applicants round to a court of chancery. (Viner's Abr., Judgment, K. a, 636, sees. 4, 5, 6.) Or if there should arise any doubts about the facts alleged, the court may direct an issue. (1 Wils., 33; Sayer, 253; Barnes, 130.) The Attorney- General and Mr. B. Living- ston, contra. This is a novel way of bringing up such a question, when really neither of the parties to the suit are in court. 1. It was perfectly regular for the party to enter up the satisfaction himself, and it is neither the province nor the duty of the attor- ney to do it. The very form of his warrant shows this; for being merely to prosecute and defend, the entering up satisfaction of the 460 judgment could not be considered as being comprised within his powers. (1 Sell. Prac., 14; Sayer, 217; 2 H. Bl., 608; 1 Bac. Abr., Attorney, 299.) By the practice of courts, warrants of attor- ney are in force for one year and a day, for the sole purpose of enabling the attorney to sue out execution. The general warrant of attorney only ex- tends to judgment and execution, and there ought to be a special-warrant made out for the purpose of authorizing an attorney to enter satisfaction, which may be made to the attorney who has conducted the suit, or to any other. (1 Sell., 546; 1 Crompt., 378; Impey, 408; T. Raym., 69.) *The doctrine contended for on the [*124r other side, that all acts relating to a suit, after it is instituted, must be done by the attorney, cannot be true, as it is settled law that a retraxit must be always entered by the party himself, and can never be done by attorney. (2 Sell., 338; 3 Salk., 245; 8 Mod., 58.) 2. Though courts of law will take notice of the rights of assignees, yet this can only be done sub modo; for choses in action are only assignable by way of covenant. They might, perhaps, form a consideration for an assumpsit, but then the orignal instrument is gone, the demand becomes a personal one, and the action must be brought upon the promise; otherwise the plaintiff must always resort to a court of equity. (2 Bl. Rep., 621; 4 Term Rep., 341, 640.) At any rate, this is not the proper method for the plaintiff to obtain a remedy, by vacating the judgment, on motion. The law, in such case, will oblige a party, paying money after notice, to pay it over again, and the demand, therefore, from the time of the notice, is a personal one. (Doug. , 338; 6 Term Rep., 361.) 3. Courts of law never vacate a judgment for fraud, but only for irregularity, or in cases of legal disability, such as of an infant, feme covert, or any person under duress, where the instrument is avoidable. (1 Sellon, 377.) At common law, the remedy is by an action of deceit, and if it happens subsequent to judg- ment, by an audita querela. In cases of fraud, or other controverted facts, an issue is always to be directed. (Cowp., 727.) If an entry should be made, vacating the judgment, on the ground of fraud, and after- wards a jury, whose exclusive province it is to judge of matters of fact, should find the fact differently, then the record would be at variance with itself. But it would be improper in this court to direct an issue. The Court of Chancery is the proper forum, and there the bank may seek their remedy. The plaintiffs may, perhaps, proceed by scire facias, on the judgment, in the name of Wardett v. Eden, and the pleadings would afford an issue of fraud or no fraud, to be tried by a *jury. As to the notice of the assignment[* 125 so much relied on, the farthest the court could go in regard to notice to assignees, would be to put them on the same footing with indorser of bills of exchange, in regard to which it is not only necessary to give notice, but to add that the indorser is looked to for payment. Messrs. Hamilton and Harison, in reply, said that this was the only way that the JOHNSON'S CASES, 2. 1800 WARDELL v. EDEN. 125 plaintiffs had to secure the property from being placed entirely beyond their reach ; and that although a scire facias should be brought, as suggested on the other side, yet that they could have no security for the satisfaction of their judgment, in the event of their recover- ing one. That as to the instance of a relraxit which had been cited, it did not apply, for the attorney is to prosecute the suit for the end of obtaining satisfaction, but a retraxit is not a prosecution for such an end ; it is entering a bar to the suit without having received satis- faction. It is important that attorneys should make the entry of satisfaction, as it would guard the court against fraud, for the court can always know its own officers, but cannot be supposed to know the party. Courts of law, as to their power to vacate judgments, are not confined to cases of irregu- larity only. In the case of the Quare impedit, in Viner, a judgment was vacated on the f round of fraud, not, it is true, by motion; ut that depended on the extension of this form of practice, of late years. As to sending the plaintiffs to a court of chancery, it was objectionable : 1. Because, although a court of chancery will not interfere where the party has a remedy at law, yet the converse of the proposition is not true. 2. Because it would turn a legal lien, which the plaintiffs have, into a mere equitable lien. 3. Because, if there is a remedy at law, chancery will refuse to relieve. Per (Juriam. On the facts appearing in this case, we think there is probable cause to con- clude that there was a collusion between Wardell and Eden to defraud the bank. 126*] *A court of law will always take notice and protect the interest of an assignee; but not so as to conclude or injure any party, but so JOHNSON'S CASES, 2. as to save the rights of all. We therefore direct the following rule to be entered in this cause : "On reading and filing the affidavit of Martin S. Wilkins, and the papers thereunto annexed, on the part of the president, direct- ors and company of the Bank of New York, claiming to be assignees of the judgment in this cause, and the affidavits of the said Joseph Eden, and the papers thereunto annexed, on the part of the said Joseph Eden ; "Ordered, That a vacatur of the entry of satisfaction of the said judgment be entered on the record, and a minute thereof made in the book of dockets of judgments : Provided, that the said president, directors and com- pany, shall not cause a scire facias, or any writ of execution, to be sued, or a suit in debt to be brought on the said judgment, until they shall have further applied to the court; and it is to be understood, also, that the said Joseph Eden may at any time apply to the court, that the entry of the satisfaction may be deemed unvacated, or that satisfaction be entered anew on the said record, and the court will, on such further applications of the parties respectively, take such order as shall be just : and it is further ordered that the clerk cause a copy of this rule to be annexed to the said record." LANSING, Ch. J., and LEWIS, J., dissented. Eule granted as above 1 . Cited in 13 Johns., 22; 19 Johns., 22, 246 ; 6 Hill, 239 ; 14 Hun, 474 ; 66 Barb., 243 ; 3 How. 388 ; 13 How., 27 ; 37 How., 3 ; 47 How., 444; 2 Code K., 5. 1. This rule was made absolute in April Term, 1800. See 1 Johns. Rep., 531, note ; 1 Johns. Cos., 411 ; 3 Johns. Rep., 426 ; 1 Bos. & Pull., 447 ; S. C., Col. & Caines, 137. 461 [END OF OCTOBER TERM.] CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE STATE OF NEW YOEK. JANUARY TKRM, IlsT THK YKAR 18O1. [Mr. Justice LEWIS was absent during the whole of this term.] 127*] *VANDENHEUVEL THE UNITED INSURANCE COMPANY. 1. Marine Insurance Warranty " American Property" Sentence of foreign Court Evi- dence. 2. Final Sentence Conclusive. 3. Judgments Courts of Peculiar Jurisdiction. In an action on a policy of insurance, containing a warranty of American property, it was held that the sentence of a foreign court of admiralty, con- demning the property as lawful prize, was conclu- sive evidence as to the character of the property, and of the breach of the warranty. But see post , this judgment was afterwards reversed in the Court of Errors, February, 1802. Citations 1 Johns. Cas., 16 ; 1 Johns. Cas., 341 ; Gro de Jure, &c., lib. 3, ch. 2, sec. 4, 5 ; 1 Coll. Jur., 102, 103 ; Vat., 257, 258 ; 1 Ch. Cas.. 237 ; 26 Car., II ; 12 Vin., 87, pi. 9; S. C., 2 Str., 732, 733; 1 Vez., 159; 1 Vern., 21 ; S. C., 2 Ch. Ca., 74 ; Carth., 32 ; S. C., 2 Show., 232 ; Theory of Evidence, p. 37 ; Bull., 244 ; Park, 178 (3d Ed.) ; Amb. 761, 762, 763 ; 2 Black. Rep., 977 ; Doug., 544; Park, a59, 361, 362; 2 Dallas, 51, 194, 195, 270; Emerigon, 457 to 464 ; Valin, 112, Art. 8 ; Roccus, n. 54 ; Freeman, 84 ; Hargrave's Law Tracts, 465, 469 ; Hargrave,477; 3 Mod.,231; Hargrave's Law Tracts,452, 457, 470,471, 477, 479 ; 4 Co., 29 a ; 7 Co., 43 C ; 2 Lev.,14 ; 1 Freeman, 83 ; Carth.. 225 ; 1 Salk., 290 ; Skin., 493; Str.. 960. 661 ; Bull. N. P., 245 ; 4 Co., 29 a ; Stra., 691 ; S. C., 3 Bro. P. C., 62 ; Str., 690 ; 2 Black. Rep., 977 ; 4 Term R., 161 ; 2 Black. R., 1176 ; 1 Show., 6 ; 3 Mod., 195, note ; Harg., 467 ; 2 Ld. Raym., 893 ; 1 Ld. Raym., 724 ; Comyn's Dig., tit. Admiralty, E., 17 ; Raym., 473 ; 2 Show, 242 ; S. C., Skinner, 58 ; Carth., 32 ; 1 Atk., 49 ; 2 Wood., 456 ; 1 Vern., 21 ; 2 Str.. 733 ; 1 Vezey, 159 ; Ridgeway, 266, 267 ; 1 Col. Jurid., 101, 102, 106 Grotius, 1, 3, ch. 2, sec. 5 ; Vattel, 1, 2, sec. 84, 85 ; Martens, 104, 105 ; Erskine's Institutes, vol. 2, 735 ; Doug., 575, 610, 614 to 617, 705 : 7 Term R., 523, 681,705; 8 Term. R., 196, 232; Id., 234, 444; Miller, 496 ; 1 Johns. Cas., 141 ; 1 Johns. Cas., 337 ; 2 Show., 232; 1 Johns. Cas., 436; Emerigon, ch. 12, sec. 20; Park, 363. rpHIS was an action on a policy of insurance, -L on the freight of the " American ship, called the Astrea, from New York to Corunna." The cause was tried at the last March cir- cuit in the city of New York, when a verdict was taken for the plaintiff, for $4,365.06, subject to the opinion of the court, on the fol- lowing case, which it was agreed either party might turn into a special verdict. JOHNSON'S CASES, 2. The defendants, for a premium of 15 per cent., on the 9th March, 1798, insured $4,000, valued at that sum on the freight. *The insurance was effected in conse- [*128 quence of the following written application from the plaintiff to the defendants, dated 14th November,1798. "Gentlemen: ' ' What will be the premium on the ship, freight, and cargo, of the Astrea, Captain Price, consisting in mahogany, tobacco, slaves, dye-woods, and sugar, at and from New York to Corunna, to sail in eight days ; property of the undersigned. "I. C. VANDENHEUVEL." The Astrea was captured, during her voy- age, by a British frigate, and, with her cargo, was condemned as lawful prize to the captors, by the Court of "Vice- Admiralty at Gibraltar, " as belonging, at the time of her capture, to Spain, or to persons being subjects of the King of Spain, or inhabiting within the ter- ritories of the King of Spain, enemies to the King of Great Britain." The freight-insured was lost by the capture and condemnation, and duly abandoned to the defendants, with the usual proof of loss and in- terest. Unless the court should think the plaintiff concluded by the sentence of condemnation, it was to be received as a fact in the case that the ship and cargo were really the plaintiff's property; and that the ship was registered, and had all the usual documents of an Ameri- can vessel. The plaintiff was born a subject of the United Netherlands, and continued so until the 3d day of June, 1793, when he became a naturalized citizen of the United States. That he was a Dutchman, was a fact known to the defendants at the time of subscribing the policy. It was agreed that if the court should be of opinion that the plaintiff is entitled to recover for a total loss, judgment was to be rendered on the verdict, as it stood. But if the opinion 463 128 SUPREME COURT, STATE OF NEW YORK. 1801 of the court should be that there should be 129*] only a *return of premium, judgment should be entered for the plaintiff for the sum of $700. But if nothing in their opinion ought to be recovered, judgment was to be given for the defendants. The defendants also underwrote a separate policy on the cargo of the same vessel for the same" voyage, on which a verdict was also taken for the sum of $15,000, subject to the opinion of the court in the other cause. Messrs. Hamilton and B. Livingston for the plaintiff. Messrs. Harison and Troup for the defend- ant. RADCLIFP, J. This was an insurance on the freight -of the Astrea, from New York to Corunna, in Spain. The policy was subscribed by the defendants on the 19th November, 1798, in consequence of a written representation from the plaintiff, stating the ship, freight and cargo to be his property. The plaintiff was originally a subject of the United Netherlands, and continued so until the 3d January, 1793, when he was natural- ized as a citizen of the United States. He mast, of course, have emigrated to America at least two years antecedent to that period, and be- fore the United Netherlands were involved in the late European war, and he is stated to have been personally known to the defendants. The vessel during the voyage was captured by a British frigate, as a prize, carried to Gib- raltar, 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 of the defendants, the insurance must be considered as made upon American or neutral property. The representation is, to this purpose, equivalent to a warranty of that fact, and liable to the same result. In my view of the subject two questions arise. 13O*] *lst. Whether, upon the terms of the contract, the plaintiff is entitled to recover? 3d. Whether, in respect to the fact of neu- trality, he is concluded by the foreign sen- tence? If upon the contract he would be entitled to recover, and is not concluded by the sentence, it is conceded or offered to be proved that the property was in reality neutral, or such as was so represented to the defendants. The second question has already been twice determined in this court; first, in the case of Ludlow v. Dale (1 Johns. Cases, 16), in which I gave no opinion, it having been argued be- fore I took my seat; and second, in the case of Goixv. Low. (1 Johns. Cases, 341.) In the last, although the subject, in some respects, presented itself to my mind in a different light, I was content to acquiesce in the opin- ion which had been previously delivered, con- sidering the rule to have been definitively settled as far as depended on this court. The magnitude of the question has induced us to review it, in this and other causes, but not- withstanding the able and zealous discussion 464 it has received, I can perceive no new lights to lead me 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 deciding this question in favor of the insurer, and the policy of our adopting a different rule. On a careful exam- ination of the English decisions, I cannot discover any ground for this suggestion. They appear to rest on principles unconnected with any motive of policy, and are indiscrim- inately 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 application. In every instance of a foreign condemnation, a loss must necessarily happen. If the prop- erty be really American, and insured here, the burden must fall on some of our citizens. 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 citi- [*131 zens to another. If the property be not Amer- ican, and insured in this country, an inter- ested 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 ques- tion 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 for- eign tribunals. 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 of the contract and the general law of insurance, unless restained by positive regulations. In this view of the subject, the judicial de- terminations of courts in different countries, as well as the opinions of individuals, may differ, but the difference, I apprehend, can never, as has been imagined, become a matter of national concern. The regular administra- tion of justice, when conducted with good faith, can never implicate the government with respect to foreign nations; and whatever rule may be established on this occasion, it cannot be considered as affecting the rights of our own citizens, as existing between them solely. If foreigners should at all be inter- ested, 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 to others. I, therefore, equally lay out of view every argument de- rived 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 govern- ment for redress; and that government, in case of palpable injustice, *has a right tode-[*132 mand and enforce reparation from the sover- eign of the aggressor; it is even bound to do so, or, in its discretion, to grant reprisals, or JOHNSON'S CASES. 2. 1801 VANDENHEUVEL v. THE UNITED INSURANCE COMPANY, 132 .an indemnity to the injured party. It then, .and not till then, becomes a question of na- tional 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 impeach the integrity of foreign courts. Thus it is held that it ought not to interfere but in cases of violent injuries, coun- tenanced and supported by the sovereign of the aggressor, and where justice is absolutely denied in re minime dubia, by all the tribunals, .and in the last resort. (Gro. de Jure, &c., lib. 3, ch. 2, sec. 4,5; 1 Coll. Jur., 102, 103; Vat., 257, 258.) This is the language of the most .approved writers on public law, and is pro- fessed to be the practice of all civilized na- tions ; and one (Vattel in the report on the Prussian memorial) of those writers, perhaps the most eminent and correct, exemplifies the maxim by referring to the principles main- tained by the British government on a similar occasion. Hence it will be admitted, as a general rule, that every government is bound to respect the judicial decisions of foreign courts, and in the first instance to consider them as just, and of course generally conclu- sive. But these reasons for the rule are strictly applicable to the government alone when act- ing in behalf of its citizens. They cannot ap- ply to the conduct of our courts in the ordin- .ary administration of justice. We actually see the courts of France and England differ on the very question before us, and it has never been deemed a subject of national confplaint by either. I therefore think that it is not on the ground of national interference or courtesy, that such sentences in our courts are held to be conclusive; their exclusive quality depends on other principles. 1st. As between the insurer and insured, in case of a representation or warranty of neu- tral property, I think a condemnation "in a for- eign court of admiralty, when founded on the 133*]*want of neutrality, operates definitively .against the insured according to the terms and effect of the contract itself. During the exist- ence of a maritime war, the state of commerce is necessarily more or less precarious. Neutrals are not exempt from this inconvenience, but neutrality, if respected, affords a great ad- vantage. The neutral merchant, when he effects an insurance, may either retain the ben- efit of his neutrality, or, if diffident of its se- curity, he may relinquish it, and specially insure his property against every possible loss. If he insure the property as neutral, he there- by signifies his intention to avail himself of his 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 can- not, by paying a less 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 representa- tion 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 .JOHNSON'S CASES, 2. N. Y. REP., BOOK 1. abroad. This is the direct object of the stipu- lation. 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 evidences of neutrality. These evidences, it is not denied, the insurer undertakes shall accompany it, and I think he equally under- takes that it shall enjoy the privileges of neu- trality. There appears to me no room for the dis- tinction 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 main- tained. Whatever abuses may occasionally be committed, we cannot act judicially, nor sup- pose the parties to have acted, on the presump- tion of in justice in foreign courts. The idea is inadmissible when applied to* the courts[* 1 34 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 con- tract. No doubt the underwriter may, by a special insurance, and the admission of a par- ticular mode of proof, make himself liable, even for the unjust sentences of foreign courts; but he ought never to be held liable for such sentences, when proceeding on the very ground assumed by the insured himself. If neutrality can be called a risk, that risk is necessarily implied in the warranty; 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 proportioned to those perils only. The effect of the represen- tation or warranty, can, I think, on the face of the contract itself, admit of no other inter- pretation. If this reasoning be correct, it follows that the insured, having represented or warranted the subject to be neutral, can never, on the terms of the contract itself, recover against the insurer when it appears to have been con- demned on a ground which denies its neutral- ity. It is immaterial, in this view of the sub- ject, whether the condemnation be just or unjust; it is sufficient if it proceed on the want of neutrality. The question in the English courts does not appear to have been examined in this light. They have been content to apply to the decis- ions of foreign courts of admiralty, a princi- ple which has long been received and adopted in their domestic courts. They place them on the same footing, and consider the conclu- siveness of their sentences as necessarily re- sulting from the right of the jurisdiction. In relation- to their own courts the rule has un- doubtedly been long established, both before and since the Revolution, and it is not con- fined to courts of peculiar or exclusive au- thority, but applies to all. Not only the sen- tences or judgments of their ecclesiastical or other courts, where they possess exclusive cognizance, but the decisions of all the courts, in *cases where they have concurrent [*135 jurisdiction, are deemed to be equally con- clusive. Indeed, a contrary position would involve the absurdity of a power competent to 30 465 135 SUPREME COURT, STATE OP NEW YORK. 1801 decide, and at the same time ineffectual in its decision. They have also, in a variety of cases, ex- tended the rule to foreign courts of a different description. Thus, a bill to be relieved against actions of trespass for seized goods (ICh. Cas., 237, 26 Car. II.) in an island of Denmark, was dismissed in chancerv because sentence was given in the court of i)enmark on the seizure. So in case (12 Vin., 87, pi. 9; 2 Stra., 732, 733, S. C., best reported in Viner, 1726), of a bill of exchange, the acceptance of which was va- cated in a court of Leghorn, Lord Chancellor King held not only that the cause was to be determined by the lex loci, but the acceptance having been Vacated by a competent jurisdic- tion, he thought the sentence conclusive, and that it bound the Court of Chancery in Eng- land. So Lord Hardwicke (1 Vez., 159, 1748) decided that if a marriage be declared valid, by the sentence of a court in France having proper jurisdiction, it is conclusive ; and he held "that this was so, although in a foreign court, by the law of nations ; for otherwise the rights of mankind would be very precarious and un- certain." This doctrine applies, with peculiar force, to the sentences of the courts of admiralty in relation to prize, and of every court proceed- ing 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 bel- ligerent party, the institution of courts to try the validity of such captures must also be ad- mitted. They exist in every country, and are established in our own. The objects of their institution are everywhere the same. They are invested with similar powers, pursue the same principles, and profess to be governed by the same system of laws, unconnected with the municipal regulations of any country. In this manner, they form a separate and inde- pendent branch of judicature, and although uncontrolled by a common superior, their 136*] ^determinations, while they act with good faith, will generally be uniform and con- sistent. 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 applied to domestic tribunals of concurrent jurisdiction, and their decisions ought to possess equal force and authority. But another principle of English and Ameri- can jurisprudence, arising from the nature of the subject and the system of our courts, ap- pears to me strongly to enforce this doctrine. The question of neutrality is involved in the general question of prize; it is a necessary in- cident, and the want of neutrality forms the principal ground of capture and condemna- tion. It is a settled maxim that the courts of common law have no jurisdiction on the ques- tion of prize. It may collaterally arise, but ex directo, it is not within their cognizance; it belongs solely and exclusively to the courts of admiralty as courts of prize. This is estab- lished by a current of authorities, both ancient and modern, and the reasons on which they are founded are satisfactory and conclusive. If, then, the courts of admiralty have exclu- sive jurisdiction of the principal question of prize, which necessarily includes that of neu- trality, and the courts of common law have no 466 jurisdiction, it must follow that the decisions of the former cannot be reviewed by the latter, and that whenever they occur, directly or col- laterally, they must, like the judgment of other courts of peculiar jurisdiction, be con- sidered as conclusive. If they were allowed to be reviewed, in what manner could we as- certain 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 cir- cumstances are unknown to him; the proofs, if not detained abroad, are in the hands of his adversary; they are generally concealed, or may with the greatest ease be suppressed. How could he compel their production, or bring to light the merits of the case? To avoid these difficulties, are *we to be gov- [*137 erned by the written depositions taken in the admiralty abroad, or could they be received as evidence? It is well known that the rules of evidence in those courts are different from our own. By what rules are we to be gov- erned? If exclusively by our own, the result in our courts may differ, and yet both judg- ments, as to the evidence on which they are founded, be equally just. Allowing even that the insured engages merely to furnish the evi- dence of this neutrality in foreign courts, that evidence must surely be understood to be of a nature usually received and demanded in those courts; for it' is there only that it can be ma- terial. The engagement relating to such evi- dence, of course, excludes the idea of a de- cision oipon any other, and the interference of a court of common law, requiring a different mode of proof, and acting on different princi- ples, would contravene one of the direct ob- jects of the stipulation. In every shape,, therefore, in which this subject can be viewed, insuperable difficulties present themselves, and evince the propriety of considering the foreign sentences as final. In England this question is at rest, by di- rect decisions on the point; but these decisions were principally made during the period of our Revolution, or subsequent to it. They pos- sess, therefore, no conclusive authority, but, under similar circumstances, are to be regard- ed 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 Revolution are, however, not wholly silent on the question; so far as they relate to the general principle that the .sentence or judg- ment of any court of competent jurisdiction is to be received 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 effect of such sentences appears to have been immediately considered, was the case of Neinland v. Horseman (1 Vern., 21; 2 Ch. Ca.,74,S. C., 1681), in chancery. That was on a *questioii of freight, which [*138 had been tried in the Court of Admiralty at Barcelona, where an interlocutory judgment was given. Lord Chancellor Nottingham de- clared that he would not slight their proceed- ings beyond sea, and if the damages had been there ascertained, or a peremptory sentence given, the same should have concluded alf JOHNSON'S CASES, 2. 1801 VANDENHEUVEL v. THE UNITED INSURANCE COMPANY. 138 parties. The next is the case of Hughes v. Cornelius (Carth., 32; 2 Show., 232, S. C., 1689), in which, during a war between France and Holland, an English ship was taken by the French, under color of being Dutch, car- ried into France, and there condemned by the Court of Admiralty as a Dutch prize. After- wards 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 be- ing found specially, the defendant had judg- ment, "because the ship being 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 be very inconvenient if one kingdom should, by peculiar laws, correct the judg- ments and proceedings of the courts of another kingdom." In the Theory of Evidence (an Irish ed., printed in 1761, p. 37), a book con- siderably ancient, it is stated that "in an ac- tion on a policy of insurance, with a war- ranty that the ship was Swedish, the sentence of the French admiralty condemning the ship as English property was held to be conclu- sive." (Bull., 244.) The same case is re- peated, in IUKC verba, by Mr. Buller, in his Nisi Prim, and has received the sanction of his name. He cannot be understood to refer to the case of Hughes v. Cornelius, as has been suggested, for that was not of a Swedish ship, nor on a policy of insurance. There is still another case (Park. 178, 3d ed., not elsewhere reported) of Fernandez v. De Costa, in 4 Geo. III., before Lord Mansfield, at Nisi Prius, in which there was a warranty that the ship was Portuguese, and being condemned as not being Portuguese, in the admiralty courts of 139*] France, the sentence *of condemna- tion appears to have been considered as de- cisive in favor of the insurer. In that case, it seems, the law was received to be settled, as to the effect of the sentence, and the inquiry was confined to ascertain the ground on which it went. In answer to the two former of those cases, a distinction has been taken between the di- rect and collateral effects of a foreign sentence ; that it is conclusive only as to the transfer 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 favor of the insurer. The insured, the professed owner of the property, must certainly be a di- rect 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 rein, all per- sons are considered as bound. The forms and manner of proceeding in those courts are found- ed on the idea of notice to all the world, and the operation of their sentences is deemed to be equally extensive. The distinction now at- tempted I do not find to be supported by any authority, either before or since the Revolu- tion. Indeed, in England, the contrary rule prevails, both with respect to their domestic and foreign courts. It is general that "when- ever a matter comes to be tried in a collateral way, the decree, sentence, or judgment of any JOHNSON'S CASES, 2. court, ecclesiastical or civil, having competent jurisdiction, is conclusive evidence of such matter." (Theory of Ev. , 37; Bull., 244; Amb., 762, 763, and the cases there cited; 2 Black. Rep., 977.) It is not material that the parties to the suit should have been parties to the sen- tence; the only qualification of the rule, I be- lieve, is to be found in Prudham v. Philips (Amb., 763), where Chief Justice Willes, in the case of a judgment alleged to be obtained by fraud, in the Ecclesiastical Court, took a dis- tinction in favor of a stranger, who could not come in and vacate or reverse the judgment, and, therefore, must of necessity be permitted to aver the fraud ; but he *held that the [* 1 4O party to the suit was bound by the sentence, 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 sen- tence was offered was a party. I forbear particularly to examine the subse- quent cases (Doug., 544; Park. 359, 362), during our Revolution and since, which, if any doubt could before exist, have unequivocally settled the law in England. The principle on which they are founded, is, I think, sufficiently sup- ported by the antecedent cases. The English courts appear -to have viewed those cases in the same light, and without treating the ques- tion as res Integra, have adopted the rule they prescribed. 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 point arose in Pennsylvania (2 Dall., 51, 194, 195, 270), and, although not directly de- cided, Judge Shippen inclined to consider the foreign sentence as conclusive against the in- sured. In France, the law is undoubtedly otherwise settled. (Emerigon, 457 to 464; Val., 112, art, 48. See also Roc. n. 54.) Their courts have adopted a different rule, at an early period, 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 impose no obligation on our courts, I think they do not comport with the sound interpretation of the contract, nor with the system of our jurisprudence. The English courts, on questions of commer- cial law, are to be regarded as at least equally enlightened and correct; and their authority, before the Revolution, repeatedly sanctioned and confirmed by subsequent determinations, imposes an obligation which the former do not possess. *ln every light, therefore, in which [*141 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 con- tract itself, by which I consider the insured to have guarantied his neutrality, and undertaken to maintain it, and, of course, liable to all the perils attending it. 2. Because the condemnation is to be con- 467 141 SUPREME COURT, STATE OF NEW YORK. 1801 sidered as conclusive evidence of the want of neutrality, it being the sentence of a court not only of a competent, but exclusive jurisdiction on the subject. KENT, J. This is an action on a policy upon the cargo and freight of the ship Astrea, The facts are these: The voyage was from New York 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 own. The ship was captured on her voyage by a British frigate, carried into Gibral- tar, and, by the Court of Vice- Admiralty there, the ship and cargo were condemned as lawful Erize, belonging, at the time of her capture, to pain, 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. If the plaintiff is not to be adjudged conclu- ded by the 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 York. Upon these facts, the whole question between the parties turns upon the effect of the sentence 142*1 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 mis- representation, which led the underwriters to compute the risk upon circumstances which, did not exist. The sentence substantially falsifies the rep- resentation; for the person stated in the sen- tence as owners of the property, and the plaint- iff, were evidently understood and intended to be different persons. After the opinion which I have already given upon the question in the cases of Ludlow \. Dale (1 Johns. Cases, 16), and of Qoix v. Low (1 Johns. Cases, 341), I might well be excused from entering again upon the subject, unless, in the mean time, I had seen sufficient reason to change that opinion. The question has, in- deed, 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 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 anx- ious care which has been bestowed on the sub- ject, that I should once more, but very briefly, and without recapitulating what I have before said, take some further 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 law, as understood and settled when our Revolu- tion began. I shall confine myself, in this opinion, to the examination of this single point. Let us first inquire what is the effect of a domestic judgment. 468 It is laid down as a general rule (Buller's N. P., 244, 245; Amb., 761; Freeman, 84; Str., 733 ; Harg., Law Tracts, 465, 469), that when- ever a matter comes to be tried in a collateral way, the final sentence of any court, having competent *authority, is conclusive [*143 evidence of the matter so determined, in all other courts having concurrent jurisdiction; for, it were very absurd that the law should give a jurisdiction, and yet not suffer what is I done by force of that jurisdiction to be full : proof. It has, however, been made a doubt by some |(Harg., 477; 3 Mod., 231), whether such sen- I tences be conclusive upon jurisdictions having concurrent, authority, or only prima facie evi- dence of the fact, although I think the better opinion is in favor of their conclusive effect. But if a matter belongs to the jurisdiction of I one court, so peculiarly as that other courts i can only take cognizance of the same subject i indirectly and incidentally, the rule is then more I extensive and unequivocal. (Hargrave's Law i Tracts, 452, 457, 470, 477.) The latter courts are bound by the sentence of the former, until it be reversed, although it be in a suit in diverso intuitu, if it be directly determined, and must give credit to it universally, and without exception. This rule has been illustrated by the case of sentences in the ecclesiastical courts touching marriages and wills ; in the Exchequer, touch- ing the condemnation of forfeited goods ; and in the Admiralty, touching prizes, in all of which cases those courts have exclusive juris- diction. In respect to the ecclesiastical courts, the authorities are numerous, and have spoken a uniform language from the time of Lord Coke to the present day. In two cases to be found in his reports (4 Co., 29 a; 7 Co., 43 b), the judges determined that they were bound (al- though it was even against the reason of the law) to give faith and credit to the sentences of the ecclesiastical courts, for cuilibet in mia arte perito est credendum; and that, if the ecclesiastical judge showeth cause of his sentence, yet, forasmuch as he is judge of the original matter, they shall never examine the cause whether it be true or not. All the subsequent cases say the same thing. (2 Lev., 14; 1 Freeman, 83; Carth., 225 ; 1 Salk., 290; Skin., 493; Str., 960, 961; Arab., 761; Harg. Law Tracts, from 452 to 479.) *This conclusive effect of the sen- [* 144 tences of the spiritual courts applies to stran- gers as well as to parties and privies. They are conclusive evidence of the fact against all the world. (Harg., 457, 471; Bull., N. P., 245.) In one of the cases from Coke (4 Co., 29 a), and in the case of Ilatfield v. Hatfield (Str., 691; 3 Bro., P. C., 62, S. C.), which was finally determined, on appeal in the HouSe of Lords in 1725, the sentence was held binding on strangers. In a case before Lord Hard- wicke, and in a case before CJiuf Justice Willes(Str., 690; Amb., 763), strangers were allowed to use the sentence against those who were parties. The same doctrine is established in respect to condemnations in the Exchequer. This fully appears from the case of Scott v. Shear- man (2 Black. Rep., 977), in which it was held JOHNSON'S CASES, 2. 1801 VANDENHEUVEL v. THE UNITED INSURANCE COMPANY. 144 .by J/r. Justice Blackstone, in a very elaborate argument, and in which all the court con- curred, that the condemnation in the Excheq- uer was conclusive ; not only in rem but in personam; not only as to 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 owner. (See 4 Term Rep., 161.) The law gives implicit credit to the judgments of competent courts; and it was afterwards observed by Chief Jus- tice De Grey, that the decision in that cause had been the uniform law for above a century. (2 Black, Rep., 1176.) It seems to be everywhere taken for granted that the sentences of admiralty courts are equally final. (1 Show., 6 ; 3 Mod., 195, note ; Harg., 467; 2 Ld. Raym., 893; lb., 724; Com. Dig., tit. Admiralty, B, 17.) The rule, then, I have mentioned, in respect to domestic judgments, has received all the sanction that a continued train of decisions could possibly give it. We are next to see whether the same rule, as appearing to be directed by the same rea- son, has not been applied with equal unifor- mity to foreign judgments. 145*] *The most ancient case to be met with in the English books, is the case of Hughes* v. Cornelius (Raym., 473; 2 Show,., 242; Signer, 59, S. C.) Although the special verdict in that case falsified the sentence of condemnation in the French admiralty, yet the court admitted the sentence to be true; and although the suit was trover, in which noth- ing but the direct effect of the sentence came necessarily into view; yet the court, in giving judgment, laid down this general doctrine, applicable equally to collateral effects, viz., that they ought to give credit to foreign sen- tences of admiralty, and take them to be ac- cording to right, and not to examine into their proceedings; that this was agreeable to the law of nations, and sentences in courts of admi- ralty 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 judgment, were afterwards cited and sanctioned by Lord Holt, and again by Lord Hardwicke, and, lastly, by Professor Woodde- son, in the course of his Vinerian Lectures. (Carth., 32; Atk., 49; 2 Wood., 456.) A similar doctrine has been repeatedly ad- vanced, and whenever the occasion arose. In- stances of this are to be met with in the suc- cessive decisions of the chancellors Notting- ham, King, and Hardwicke. (1 Vern., 21; 2 Str., 733 ; 1 Vezey, 159.) In the case of 'Gage v. Bulkeley (Ridgeway, 266, 267), before Lord Hardwicke, Sir D. Ry- der, who was then Attorney-General, laid down the rule in its fullest latitude, and as being well established. He said that foreign judgments were received in England as con- clusive evidence, and had the same regard paid to them, for the sake of justice and public con- venience, as sentences given in the courts of JOHNSON'S CASES, 2. admiralty, or ecclesiastical courts at home; and he cited the case of Hainden v. The East India, Company, which was*determined [*146 upon appeal, in the House of Lords; and on the ground that the sentence of a Dutch ad- miralty was conclusive evidence, it being res \judicata, and could not be unravelled or re-ex- amined. Although what he said was merely arguendo, yet, coming from such an eminent counsel, and appearing to be taken for granted by the court, it is pretty good evidence of the prevailing sense on the subject. Here we may also notice the answer of the judges (of whom Sir D. Ryder was one) to the Prussian memorial, as being a document of very high authority, and bearing on the ques- tion before us. (1 Col. Jurid., 101, 102, 106.) It is there stated that prize courW are governed by the maritime 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 sen- tence by the parties themselves, and is conclu- sive; that captures have been immemorially judged of in that way in every country of Europe, and with the approbation of the pow- ers at peace; that every other method and trial would be impracticable and unjust; and that, if prize courts proceed contrary to the law of nations and treaties, in re minime ditbia, then, and not till then, the neutral has a right 1<> complain. This answer, and the principle contained in the case of Hughes v. Cornelius, may be con- sidered as a correct commentary on the law of nations, relative to the effect which judicial sentences in one country are to receive in the courts of another. (Grotius, 1. 3, ch. 2, sec. 5; j Vattel, 1. 2, sec. 84, 85; Martens, 104, 105; Er- j skine's Institutes, vol. 2, 735.) After such a repeated and general recogni- tion of the principle, we are prepared to expect an application of it (for that is all that is now wanted) to a case precisely the same with the one before the court. We do, accordingly, find it stated as law, in Buller's JVm Prius (p. 244), that in an action upon a policy of in- surance, with a warranty that the ship was Swedish, the sentence of a French admi- ralty *court, condemning the ship as [*147 English property, was held conclusive evi- dence. The same case was previously stated in the Theory of Evidence (Published in 1761, p. 37), to have been decMed; and Park gives us a particular report of another decision of the like kind, before Lord Mansfield, at the sittings after Hilary Term, 4 Geo. III., in the case of Fernandez v. De Costa. A ship was insured, and warranted a Portuguese; she was libeled, and condemned in a French court as not being Portuguese; and although the plaint- iff gave partial evidence of her being Portu- guese, yet, when the defendant produced the sentence, it concluded the cause. Where, then, we can discover a doubt as to what was the law at the time of our Revo- lution? Upon what ground can we pause, even to raise a conjecture, whether the Court of King's Bench, in the case of Bernardi v. Notteux (Doug., 575), being the first cause after the year 1776, created a new rule, when even the counsel for the plaint IS, at the very outset 147 SUPREME COURT, STATE OF XEW YORK. 1801 of the argument, admitted that if the sentence of the French admiralty had proceeded on the ground of the property not being neutral, the plaintiff would have been concluded. Xor do I think that the English decisions, since the year 1776, are to be thrown wholly out of view, although they are confessedly of no binding authority. In addition to the consideration of the well known character of their judges, we are to observe that their tribunals and ours, study and pursue the same code of law and equity; and that they are certainly not more liable than we ourselves to misapprehend the authentic rec- ords and oracles of the common law. If the question, therefore, were otherwise involved in doubt, a series of uniform decisions in the English courts for the last twenty years cannot but be considered, and that, too, without being unduly addicted jurare in verba inagtetri, as a very sufficient cause to remove it. (Doug., 375, 610, 614 to 617, 705; Barzittay v. Lewis, De Souza v. Ewer, and Saloucci v. Woodmason, cited by Park., 7 Term Rep., 523, 681, 705; 8 Term Rep., 196, 232.) 148*] *Having thus ascertained, at least to my satisfaction, that by the law, as it stood in 1776, a sentence of condemnation abroad, on a direct point in question, is, in a collateral suit by the insurer, conclusive evidence of a breach of his warranty, so that no evidence can be admitted to impeach it, I have done all that I undertook to do. I might here rest the argument. Whatever opinion may be enter- tained as to the justice or policy of the rule is not to the purpose. Our duty is jus dicere, non jus dare. I may be mistaken, but it appears, however, to me, that all the reasons which have*established the rule relative to domestic courts, having exclusive jurisdiction of a sub- ject, apply with peculiar force to a case like the present. Courts of law are inadequate to determine the question of prize; and to overhaul the sentence is in reality trying that 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 ma'ster such as to cause the property to lose its privilege of neutrality. None but a court clothed with the mode of proof, the summary powers, the . enlarged dis- cretion 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 vindi- cate his property, and if aggrieved, he should carry his repeal to a court of review. 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 as- sured undertakes not only that it is so in fact, that it shall be entitled to neutral privilege throughout the voyage. (8 Term. Rep., 234, 444.) A warranty of neutrality means that the ship shall maintain a neutral conduct, and not forfeit it during the voyage. To construe the engagement to be less' than that, is in a great degree to render it idle and nugatory. 149*] "To implement this warranty," *says 470 a very sensible writer on insurance (Millar, p. 496), "the ship or goods must be neutral, in* conception of that nation from whom danger of seizure is apprehended." On such a represen- tation, or warranty, the insurer lays out of view the risk of loss, by reason of the non-neutrality of the property. That risk the assured takes upon himself, and having in his hands, exclu- sively, all the means to do it, he is bound to make good his averment, whenever, and wherever 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-examined here, I should still incline to think that in the case of an express warranty, the assured, and not the insurer, takes upon himself the risk of the condemnation, right or wrong. Whether that would, or would not be the case, on a repre- sentation 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 opinion entirely on the first ground, of the faith due to the foreign sentence. The result of my opinion, accordingly, is that the plaintiff is not entitled to recover in this cause, beyond the return of his premium. BENSON, J. The principal inquiry in this case is respecting the effect of a foreign con- demnation; the property in the goods con- demned being intended*, in the insurance of them, as neutral, is not the condemnation con- clusive against the assured? This question has heretofore come before us, but until the argu- ments which have taken place in the present cause, it does not appear to me to have been so fully examined as the difficulty and import- ance of it require. A condemnation may be viewed as consist- ing in its cause and in its principles, as to be discriminated from each other; and the princi- ples may be divided into those which relate to the law, and those which relate to the fact, comprehending in the fact, the proofs. *The distinction between the cause [*15O and the principles of a condemnation is exem- plified in a case read on the argument from a late English reporter (7 Term Rep., 681, Geyer v. Aguilar), where one of the judges distinguishes between them as here intended. He thus expresses himself: "The ground on which the courts of France proceeded, was that this was a capture of enemy's properly; 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." This is as much as if he had said, the cause of the condemnation, as declared by the courts in France, is that the ship was enemy's property, and which is a suffi- cient cause of condemnation by the law of nations; but what were the principles 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. Insurances may be divided into general and special. A general insurance is where the perils insured against are such as the law would JOHNSON'S CASES, 2. 1801 VANDENHEUVEL v. THE UNITED INSURANCE COMPANY. 150 imply from the nature of the contract of a marine insurance considered in itself, and sup- posing none to be expressed in the policy. A special insurance is where, in addition to the implied perils, further 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 insurances; of the latter, in the case of Goix v. Knox (1 Johns. Cases, 337), "where, besides the usual risks enumerated in printed policies, it was declared by a clause in writing that the assurance was to be against .all risks." And of the former, in the case of Gardiner et al. v. Smith (1 Johns. Cases, 141), where the insurance was against the risks, .among others, "of contraband and illicit trade," .and the goods were seized at Jamaica, while landing, and condemned as contraband and illicit by the law of that place; and cases may 151*] be supposed, where *although the property is insured as neutral, the insurer may, nevertheless, expressly take on himself the peril of condemnation for breach of blockade, or for any other specified or enumerated cause; .and in every such case, should there be a con- demnation, the assured must be allowed to show, either by the condemnation itself, if it furnishes the requisite evidence, and if not, then by such matter extraneous to it as, under the circumstances of the case, may be admissi- ble 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 insured against the insurer. The cases at bar, are, as it respects the perils of condemnation, cases of general insurance, as here explained. Where the property is insured as neutral, the law intends not only that the neutrality, as an ingredient or quality in the property or own- ership of the goods, then exists, but likewise that it shall be preserved during the con- tinuance 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 j whose account the insurance may be made, or j for whose benefit it may, in consequence of a subsequent transfer of the goods, be to inure, the assured is deemed to warrant; and this warranty, from the assured to the insurer, is a condition of the insurance, or the indemnity from the insurer to the assured. Every condemnation is either rightful or wrongful. If the captured goods, being duly defended in the court of the captors, by alleg- ing and proving the title of the assured, as above defined, should, notwithstanding, be condemned, the condemnation will be wrong- ful. Every other condemnation is to be taken as rightful, including a condemnation by de- fault, no person appearing to defend the goods. 152*] * Where the condemnation is wrongful, it must be attributed either to the error of the judge, as it relates to the law, or as it relates to the fact as deduced from the proofs; or to the error of the witnesses, as it relates to the JOHNSON'S CASES, 2. proofs, in testifying differently from the truth; and whether the error, either of the judge or witnesses, be innocent or wilful, can never affect the question whether the assured hath or hath not a 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 ; if he is 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 \. Cornelius (2 Show., 232), to controvert the condemna- tion, " at large." It will readily be perceived that as the prin- cipal question, whether the assured is or is not to be concluded by the condemnation, may be differently decided ; so will the situa- tion of the insurer be varied from certainty of safety, to the mere expectation or possibility of it. If the condemnation is to be conclusive against the assured, then, however, 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 con- demnation of the goods, the insurer is safe in an absolute sense; but if the assured may con- trovert 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 sev- eral questions respecting the limitations of the right of the assured to controvert the condem- nation, may also be differently decided. In some cases it may be more favorable 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 [*153 favorable to the insurer that 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, but some may easily be conceived, where, as it respects the certainty, or possi- bility, that the assured can, or cannot succeed in showing the condemnation to be wrongful, may wholly depend on a different decision, ene way or the other, of these questions, taken singly. Before, therefore, it can be de- clared that the right of the assured to contro- vert liie condemnation is limited, the rule whereby some of the limitations of it here suggested are to be adopted, and others to be rejected, ought to be shown. It may, how- ever, be safely asserted that no such rule ex- ists. The limitations themselves, or the dis- tinctions, that where a judgment is alleged, the party against whom it is alleged may con- trovert it, as to the law, but not as to fact; or as to fact, but not as to the law; and if as to the fact, that he is still to be concluded as to the proof, are not known in the law; and 1 cannot discern them, as to be inferred from anything peculiar in the contract of insurance; so that the right of the assured to controvert the condemnation not being susceptible of 471 153 SUPREME COURT, STATE OF NEW YORK. 1801 limitation, if, therefore, he has the right, he must have it, unlimitedly, or to controvert the condemnation at large. It is now to be stated that where the prop- erty is insured as enemy's property, and there is a capture by an enemy, the other belliger- ent party, it is inevitable that the goods will be actually and rightfully condemned. Thej T are as much lost to the assured as if they were captured by a pirate; and they can never happen to be recovered by him except by re- capture; 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 de- nominated moral means, whereby, until a con- demnation shall have taken place, it is pos- sible the goods may be recovered. There 1 54*] *may be a claim and defense of them in the court of the captor. Although it is stated as possible only that the goods may, by a defense of them, be recovered; yet, if it was requisite to the argument, it might be stated as the intendment of law that it is probable ; for if the title of the assured should be duly alleged and proved, and the goods should, not- withstanding, be condemned, the condemna- tion, as has been already stated, must then 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 possibility only, that, by a defense of the goods, a condemnation of them may be prevent- ed, 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 undefended; 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 a 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 de- fend the land; he may vouch him, and there- by substitute him as the defendant to abide the event of the suit, " for loss or gain; " and he is the party to be presumed best cognizant to the title. Such is the rule in a case of a war- ranty, in the nature of a general contract of ''ndemnity from a grantor to a grantee; but if the assured may abandon to the insurer on capture, and impose the defense of the goods on him, the rule will be reversed; the war- rantor may then substitute the warranted, as the defendant, and the defense of the title will then be imposed on the party to be presumed not only least cognizant, but even wholly ig- norant 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 as- sumptions of the laud by the public authority of the State, nor as to any matter which may happen to exist thereafter; it may be said to 15o*] 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 in- 472 sured as neutral, the warranty of the title, so- far from being by the insurer to the assured, it is by the assured to the insurer ; the in- surance can be a warranty, or an indemnity, not against title, but against casualty only: against tortious acts of private persons, and so- unauthorized by law, or the acts of the State, such as reprisals, embargoes, and impress- ments; the acts, in neither case, however, pro- ceeding on a supposed total absence, or a de- fect, 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 defense of the goods on the insurer, will be that the in- surance will thereby be essentially changed from being an indemnity against casualty only, to be also an indemnity against title, and against a want of that very title, which, as has been stated, the assured warranted to- be existing, and that it should be preserved. Further, if the assured may abandon on the capture, he is entitled also to sue for the loss, and the insurer must, accordingly, litigate the suit, in expectation that it may be in his power to prove either that the property was not neutral, 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 on the policy being wholly of special or positive contract or regulation, and not arising from the insurance considered in it- self. If he litigates the suit on the policy.he must relinquish a defence of the goods in the court of the captor, or expose 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 neutrality has [*15($ been preserved, and, therefore, that they can- not be rightfully condemned. On the other hand, if he voluntarily pays the loss, he then precludes himself from afterwards alleging "a breach of warranty; for, although I forbear from giving an opinion whether the insurer can or cannot recover back the money paid for a loss, as having paid it, not knowing at the time certain facts which, if he had known, he might thereby have discharged himself from the insurance; yet, I have no difficulty in de- claring that the facts must be such as it may be supposed he could not be so apprised 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 captured by a belligerent; for it is to be intended, as will be more particularly stated hereafter, that they were captured on the ground of being enemy's property, although insured in the name of a neutral. If the assured, therefore, will, not- withstanding, voluntarily pay the loss, he will then be deemed forever to have waived or renounced his right to allege the breach of warranty. 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. JOHNSON'S CASES, 2. 1801 VANDENHETJVEL v. THE UNITED INSURANCE COMPANY. 156 This rule was recognized in the Court of Errors, in the case of Le Ouen v. Oowrneur and Kemble ( 1 Johns. Cases, 436), where the appellant having placed goods in the hands of the respondents, as his agents, to be sold, and having himself 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 made to them in their own names, and the vendees having, before the notes became pay- able, proceeded to France with the goods; he demanded from the respondents an authoriza- tion to receive there whatever sum should re- main of the proceeds of the goods,so sold, on his account, to the above vendees, after first de- 157*] ducting *and reserving at their disposal such sum as should be completely sufficient to cover them, for the general 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, whereby they had become instantly liable for the value of the whole of the sale, and on a special verdict he had judgment, and to the amount so claimed by him. The respondents thereupon filed their bill in the Court of Chancery, to the affect of a suit at law, to recover back a payment, to enjoin him from proceeding on the judgment, suggesting that subsequent thereto, .on the trial in the suit which they had brought on the notes against the vendees, a verdict had been found for the defendants, oh the sole ground of a fraud having been practiced by the appellant in the sale of the goods, by affirming or warranting them to be of a better kind or quality than they were, and the Chancellor ordered an issue at law to try the fraud. A question, however, was reserved by the counsel of both parties, to be determined as a preliminary to the trial, whether the respondents were not precluded by the antecedent circumstances, from insist- ing upon the alleged fraud as a ground of relief? The Chancellor decreed they weje not so precluded, and confirmed the order for the trial, and on the appeal the decree 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, although it might afterwards be proved undeniably, in the court of the captor, that the property was not neutral, the insurer would, notwithstand- ing, be without any means of restitution. These considerations are sufficient to show that the assured cannot abandon on the capt- ure; 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 cannot cast it on the insurer. It is, however, at the same time, to be stated that if, having 158*] made a defence in the *court of the captor, the assured may still afterwards con- trovert the condemnation at large, in the suit on the policy, it is obvious such previous defence can be estimated as a mere formality only; that nothing is gained by it to the insurer, but that he is left in the like disadvantageous situation as if he, and not the assured, had to defend the goods in the court of the captor; for although in the suit on the policy, instead JOHNSON'S CASES, 2. of defending he will have to defeat the title of the assured, still the one case, equally as the other, involves the truth or falsehood of the same facts. The reasoning, therefore, from what has been stated, terminates in this con- clusion, that the right of the assured to con- trovert the condemnation, if it does exist, can exist no otherwise than to controvert it, at large; that it his duty to defend the goods against a condemnation in the court of the captor, and that the right and the duty being incompatible, the right must be declared not possible to exist. Lest, however, the reasoning, as it may respect the question whether the assured can or cannot abandon instantly on the capture, may be considered as inconclusive and unsat- isfactory, unless it be shown when he can abandon, it may be requisite still briefly to state that besides the case of a capture by an enemy, the opposite belligerent party, where the goods are insured as enemy's property, and that of a capture by a pirate, there is another case where the assured may abandon on the capture; that is, in case of a capture by way of reprisal, and which, indeed, is in the nature of a capture by an enemy. Every other capture being necessarily by a friend, in relation to the captured, must be intended to be in order that the goods are to be carried into a port of the captor, for a regular and author- ized examination or adjudication, whether they are lawful prize or not, either as being covertly enemy property, or if neutral, that the neutrality has become forfeited; and the assured being held to follow the goods and defend them, and the condemnation being conclusive against him, should they be con- demned, it results that he can abandon only in the event *of their being restored to [*15O him, and the voyage, in consequence of the capture and detention, broken up; and if the insurer shall, thereupon, pay the loss, then, whatever right or remedy there may be against the captor, will inure to his benefit. The practice in France has been urged as a precedent; and Emerigon has been read on the argument, to show what is there received as law on the subject. " The act of the prince is put in the class of casualties (La classe des cas fortuits); and such also is the case (11 en est de meme du fait) as to the unjust sentence of a magistrate; and it is of no importance whether the injustice proceeds from the cor- ruption of the judge, or his ignorance; so that it is then certain that the insurers shall answer for an unjust condemnation 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, as the cause is to be de- cided anew: whence it follows that a judg- ment of condemnation pronounced by an enemy tribunal, is no proof that there has been a concealment of the real person for whose account the insurance was made (que U veritable pour wmpte ait ete cache), nor any title (un titre) which the insurer may allege to avoid paying the loss. (Emerigou, ch. 12, sec. 20.) The last sentence may be expressed in other words; " such if, our interpretation of the con- tract between the assured and insurer, as to the right of the assured to controvert a foreign condemnation, the property being in- 159 SUPREME COURT, STATE OF NEW YORK. 1801 sured as neutral." The argument, as con- tained in what is here cited, is, that an insur- ance being an indemnity against casualty, and an unjust foreign condemnation being a casu- alty, an insurance is, therefore, an indemnity against an unjust foreign condemnation; and the act of the prince being a casualty, the proof of the minor term in the syllogism con- sists in an assertion that the act or unjust sentence of a magistrate is to be classed equally 16O*] with the act of a prince, *among casu- alties; 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 detention only, and the act of the mag- istrate in function as a judge between captor and captured, condemning the goods as for- feited to the captors. The act of the prince is arbitrary, and can be justified only from necessity, or for reasons of state; and may con- sist with an admission of a perfect title to the 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 prop- erty, and is in denial of the title of the cap- tured. In case of an arrest by a prince, the right of action of the assured accrues by the arrest; and, therefore, whether it oan be justi- fied or not, is never brought into question; but where there is a condemnation by a magis- trate, 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 insurer 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 distinguish it as having hap- pened in the same, and not in a different 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 re- lates to a condemnation, the distinction between foreign and domestic *is essential; the right, as contended for, being to controvert a foreign condemnation only; and, conse- quently, a domestic condemnation 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 161*] *to be a casualty, as being 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 manner, to answer for the condemna- tion, whether it is domestic or foreign; and, therefore, that as far as the argument for the right of the assured to controvert a condem- nation, depends on a supposed similitude be- tween an unjust condemnation by a magistrate and an arrest by a prince, and so far as it also depends at the same time on the distinction between a foreign and domestic condemnation, and that the right is only to controvert the 474 former but not the latter, it is at variance with, and, consequently, defeats itself. Emerigon, in further support of the asser- tion ' ' that an unjust condemnation is a casualty for which the insurer is to answer," refers to Roccus, Not. 54. " Merces captce a potestate, sen. judice justitiam administrante in iUo loco, aut a populo, aut ab alia quacunque persona per vim, absque pretii solutione, tenentur assecuratores solvere cestinuitionem dominis mercium, facia priiis per dominos mercium cessione ad beneficium assecurat&i'um pro recuperandis illu mercibux, Del pretio ipsorum a capientibus, ut pi'obat Stracc: De Assecural ; 6 loss: 20, el sequitur Joan; De Evia, in Labyrint: Commer. Naval, lib. 3, ch. 14. numb. 27: et melius fundatur ex dictis a Santer; De Assecurat, pars 4, num. 20: ubi adducit casum de injustitia facia, ab aliqvo judice ex qua merces amittantur vel damnum aliquod sentiant, an comprehendatur sub promix- sione casus fortuiti, et assecurator teneatur? Adducit Bart., in L., exceptions col. : penult, in fin: ff: defidejusso; ubi ittud, quod judex factn injuste, quoad paries, dicitur casus fortuitus, et pertinet ad emptorem rei, et sic mdetur in assecuratione, quod pertinet ad ilium gut in se suscepit casum fortuitum. " I do not possess the authors here referred to by Roccus, but I find the last, Bartolus, referred to by Perezius, 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 [*162 fortuiti), and so belonging to the buyer (qui pertinent ad emptorem), to bear the loss him- self, as distinguished from those for which tin- seller is to answer, in order thereby further to discover whether in a suit judicially 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 eviction of the captured (the assured), for which the insurer is to answer? " Tenetur de evictione venditor Porro evicta re datur emptori actio adversum v&nditorem. Est ex empto actio, qua inest natura contractus Cessat evictions proBstatio ob culpam emptoris Culpam committet emptor, neque de evictione agere potest, si, cum posxef venditori denunciare, non denunciaverit motam controversiam, utque judicio adesset et rem defenderet; nam venditori poterat fuisse junta defenisionis causa utpote scienti melius rei a se venditm jus et conditionem Ac sic in causa, evictionis sententia lata contra emptorem ei sit regressus contra venditorem, si vocatus ab emptore venditor in judicio comparuerit ad rei defensionem earn que suscepent, quia nihil eat quod imputetur emptori, qui, ut requiritur, denunciavit venditori motam litem, cui, quod earn defendere non potuerit, imputandum erit." (Perezii Prcelect, in lib. 8, cod., tit. 45, de evictioneb.) From these passages, it is evident that the evictions intended by Bartolus 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 in judi- cio compareat ad rei defensionem); 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, JOHNSON'S CASES, 2. 1801 VANDENHEUVEI, v. THE UNITED INSURANCE COMPANY. 162 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 163*] what *has already been stated in com- paring or contrasting a warranty in a grant of lands with an insurance, the property being insured as neutral; and it only remains to be remarked on Emerigon, considered as an authority, that Roccus himself, on whom he relies, does not, by the act of the judge in taking the goods, and for which the insurer is to answer, intend a judicial act or procedure between captor and captured, in a case of tak- ing or capturing goods as lawful prize; the taking, as he describes it, being within the territory where the judge has jurisdiction {captcB judice justitiam administrante in itto loco); but a taking as a prize, it is to be supposed, would have been mentioned by him as a tak- ing at sea. That the injustice of the taking consists in its being without paying for the goods (absque solutione pretii), necessarily im- porting that the captured, the person from whom they were taken, was entitled 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 disaffirming any title in the captured; but not in his awarding the goods to the cap- tors, without any recompense to the captured. The official act, the^fore, of the magistrate, in taking the goods, intended by Roccus, can be no other than an act in the nature of an im- press, and for which the insurer is unques- tionably to answer. To suppose an unjust sentence a casualty, so as that the insurer is to answer for it, is altogether fallacious ; 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 hap- pening 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 hap- pened, and in the other that it cannot ever happen; but such casualty is not applicable to the sentence of a judge on the question whether it is just or unjust, or to any other mere opinion, whether it is right or wrong, 164*] declared *on any subject. For al- though it |may be afterwards demonstrated that the opinion is right, or that it is wrong, yet it never can become 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 reversal is to be taken as certainly right. If the judgment of reversal should be reversed, the first judg- ment being thereby affirmed, is again to be taken as certainly right, and the judgment of reversal as certainly wrong; but this legal or artificial certainty is in no manner the same with that certainty existing in nature, and having as its opposite, casualty. Certainty, as JOHNSON'S CASES, 2. opposed to casualty, is to be proved as a fact, to have either physically happened, or become impossible to happen ; and is not to be demon- strated as a proposition, either morally right or morally wrong. The opinion whether a sentence is just or unjust, may be ambulatory forever. Thus it is manifest that the practice in France is erroneous; and there is reason to suppose that it proceeded from a misappre- hension of the very authorities cited to prove it to be warranted by law or principle. It, however, having obtained, and being estab- lished in fact, in the nature of a custom, or usage, it ought, perhaps, not to be changed there ; for both parties being apprised of it, they can make their calculations as to the risk of the premium accordingly; and in that view no injury will be produced by it; but it cer- tainly can have no influence on the present inquiry, which is, as to the true interpretation of the contract, according to universal law, independent of any positive local practice whatever. I will now briefly apply to the case of an in- surance, the law, as declared in the case of Huglies v. Cornelius, already cited ; it being the most ancient case in the books, as to the effect of a foreign condemnation; and the adjudica- tion *which took place in it, having [*165 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 domestic condemnation is to be received as conclusive; but they suppose that, there- fore, a foreign condemnation ought likewise to be so received; they argue the conclusive- ness of the latter from the conclusiveness of the former. They express themselves thus, " as we are to take notice of a sentence in the admiralty here, so ought we of those abroad in other nations, and we must not set them at large again." It is true, the question was only as to the direct and not as to the collateral effect of a condemnation; but the reasoning with which the judges close their opinion, that a foreign 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, and it being a matter of government, he will recommend it to his liege's ambassadors, if he see cause, and if not remedied he may grant letters of marque and reprisal," will equally apply, that it is to be conclusive as to the effect of it on an insur- ance; and not only contains a sufficient answer to the objections to receiving it as conclusive, as to such effect of it ; but obvious- ly supposes that as to the several effects of a condemnation in respect to the conclusiveness of it, there is no difference between them. The objections to receiving a foreign con- demnation as conclusive against the assured, if I have rightly understood them, and, in- deed, as some of them are expressed by a late English writer on the law of insurance (Park, 363), read on the argument, are, " that the judges of a foreign nation may possibly 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 stand- ing indifferent between a neutral nation and his own, in deciding on the interfering rights 475 1C5 SUPREME COURT, STATE OF NEW YORK. 1801 of neutrals and belligerents, as depending on, or to be deduced from the law of nations. 1 66*] *That even the most enlightened and upright judges may oftentimes and in a great degree, be under the influence of national partiality, can scarcely be denied; such is human nature; Parum cavet natura. But can neutral nations 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 ob- serve it as a principle of the law of nations, that free ships make free goods, a proof of directly the reverse? Can our nation claim us, or can we claim ourselves, to be more free than the judges of belligerent nations, from national partiality? If the assured is warrant- ed in surmising a partiality in the belligerent judge, is not the insurer equally warranted in surmising it in us; and, consequently, 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 belligerent nations? But a sufficient, and, perhaps, the most proper answer to the Avhole of the objection, is furnished in sub- stance, by the judges, in the opinion above cited, from the case of Hughes v. Cornelius, that if a judge of one nation, in a 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 misinterpret a treaty, or decide wholly on the particular regulations of his own nation, repugnant to, or deviating from the law of nations, or by whatever other erro- neous reasonines or means, considered as the principles relative to the law in the case, he shall come to it as a 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 167*] such condemnation would be a *griev- ance on the captured, against which his nation is to claim and procure reparation for him. It would be perfectly a cfisus foederis, a case where the nation, in virtue of the mutual ob- ligation of allegiance and protection between sovereign and subject, would be held to inter- fere and remonstrate against the principles of the condemnation; and insist that they be disavowed or renounced, and that reparation be made to the captured ; who, instead of seek- ing for indemnity from an underwriter, through the medium of a court of justice, must seek for it from the foreign nation itself, through the medium of the government or sov- ereignty of his own nation. I conclude with remarking that possibly, as I have already intimated, an insurer may, by especial or express insurance, take on himself the peril of an unjust condemnation; and something of that kind has been attempted by inserting a clause in policies, to the following effect: " Warranted American property and proof thereof to be made, if required, in New York only; " but whether an insurance in this form is sufficiently provisional or explicit. 476 j Whether it would be deemed to be against a condemnation for any cause, or against a con- demnation for some causes only, and not others; and if so, which the causes are, as to be discriminated from each other; and espe- | cially, whether the assured may abandon on j the capture, or whether he is not bo\md to follow the goods into the court of the captor, and there defend them; or, in short, whether it is not unavoidable that the whole must be put on the simple footing of a war premium and a war 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 suggest as probable to arise, but on which it is not necessary 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, [* 16& my opinion is that a foreign, equally as a domestic condemnation, is to be received a* conclusive against the assured. LANSING, Oh. J., not having heard the argument in the cause, gave no opinion. LEWIS, J., absent. Judgment for the defendants.^ Reversed in 2 Johns. Gas., 451; S. C., 2 Cai.Cas., 217. Cited in Post , 173, 176, 185 ; 8 Johns., 318 : 2 Cow., 66, 342; 5 X. Y., 481 ; 7 Barb., 333. MURRAY AND MURRAY THE UNITED INSURANCE COMPANY. 1 . Marine Insurance Description ' ' American Ship " A Warranty. 2. Id. Transfer In, Trust Subject of Belligerent Country Policy Void Return of Premium. If a vessel be described in a policy of "insurance as an American ship, it is a warranty that she is Amer- ican. Where an American vessel was transferred to A in trust to secure a debt due to B who was a British subject, it was held that B, being 1 the rest ill (fiie trust of the profits of the vessel, and a subject of one of the belligerents, the vessel ceased to be American ; and the fact not being communicated to the insurers, the policy was void ; and the insured entitled to a return of premium only. Citation 1 Johns. Cos.. 141 ; 1 Johns. Cas., 310. was an action on a policy of insur- JL ance, on the " American brig, called the 1. The case having been turned into a special ver- dict, a writ of errror was afterwards brought on this judgment, which was reversed in the Court of Errors, February, 1802. NOTE. Warranty of national character. Wliai comtitvttx a warranty, how distinguished from representation. See Duncan v. Sun Fire Ins. Co., 6 Wend., 488 : note to Mackay v. Rhinelander, 1 Johns. Cas., 408. Natbmalitii. If a citizen resides and engages in trade in a foreign country, by the law of nations he is a merchant of that country. The Indian Chief, 3 Rob. Adm., 12. The Diana, 5 Rob. Adm., 60. The Aba., 29 Eng. L. and Eq., 591. The Aina, 28 Eng. L. and Eq., 600. The Frances, 8 Cranch, 363. Murray v. JOHNSON'S CASES, 2. 1801 MURRAY AND MURRAY v. THE UNITED INSURANCE COMPANY. 168 Mary," from New York to a port in Jamaica. 'The cause was tried at the last March circuit In New York, before Mr. Justice Radcliff, when the jury found a special verdict. The material facts are the following: John Baz- ing, a citizen of the United States, was sole owner of the brig, which was duly registered AS an American vessel. On the 28th April, 1798, Bazing conveyed the brig, by a regular bill of sale, to John Murray (one of the plaint- iffs) and William Hart, both citizens of the United States, who thereupon obtained an American register in their own names. The bill of sale, although absolute in terms, was executed in trust, for the purposes set forth in an agreement executed the same day be- tween the parties; and which agreement stat- ed that Nathaniel Bayley, by his agents, Mur- ray and Hart, had sued Bazing, who, not be- ing able to find bail, had transferred the brig to Murray and Hart; and Murray and Hart obligated themselves to reconvey the brig to 169*] Bazing, in case he put in *good special bail, in ten days, and if not, it was agreed that the brig should proceed on her voyage to Jamaica, in which case the suit was to be dis- continued, and Bazing to pay the costs. If the brig proceeded on her voyage, it was agreed that Murray and Hart were to cause her to be insured, at the expense of Bazing; and the earning and freight were to be applied to sat- isfy the debt due from Bazing to Bayley; and if the vessel should be lost, the sum insured was to be applied in like manner; and if the vessel .returned and the demand of Bayley was not satisfied, then Murray and Hart were to sell the vessel at auction, and apply the pro- ceeds to satisfy the debt; and the overplus (if It was was to be returned to Bazing. further agreed that Bazing might, if he pre- ferred, employ the vessel for four months from that time, in the coasting trade, and en- joy the freight and earning, and pay the charges; if the debt was not satisfied in that time, then Murray and Hart were to sell the vessel, as above mentioned. Bayley was a British subject residing in Jamaica. The policy was signed on the 15th of May, 1798. The plaintiffs did not disclose or communicate the above agreement to the defendants; and it was admitted that if they had disclosed it there would have been no .additional premium, under an idea that the bill of sale did not vest any interest in Bayley. The brig, while on her voyage, was, on the 24th of May, 1798, captured by a French privateer, and carried into Cape Frangois and condemned as good prize, on account of double and colored papers, proving the brig on the one hand to be the property of William Hart, and on the other, the property of John Bazing. Messrs. B. Livingston and Burr, for the plaintiffs. Messrs. Hamilton, Hariyon and Troup, for the defendants. *RADCLIFF, J. The vessel was [*17O insured as the American brig Mary. This has already been considered as equivalent to a representation of neutral property. It is stronger than a representation, for being con- tained in the policy itself, it amounts to an implied warranty of that fact. Considering it either as a representation, or an implied war- ranty, the plaintiffs, according to the cases already decided, are precluded from a re- covery, by the operation of the sentence in the i French court of prizes, which, among other causes, proceeds on the ground that the prop- erty was English. But I also think the plaint- iffs are precluded on the merits. 1. A representation or warranty of neutral- ity, requires the property to be wholly neutral. If one of the belligerents had an interest, whether partial or entire, the risk was thereby increased, and the warranty not complied with. In the present case, Bazing, the origi- nal owner, made a bill of sale on the 20th of April, to the plaintiffs, in trust for one Bay- ley, who was a British subject. The insur- ance was made on the loth of May thereafter. By an article executed at the same time with the bill of sale, it was agreed to reconvey the j brig to Bazing, within a limited time, if he should enter good bail in a suit then depend- ing against him, in favor of Bayley; or if the money due to Bayley should be paid, feither by the earnings of the vessel or otherwise; and it was particularly agreed that the freight of the brig, on the voyage in question, should be applied to the debt due to Bayley; and if the freight should prove insufficient, the ves- sel was to be sold for the payment of the debt, and the surplus money only returned to Ba- zing. By virtue of the bill of sale and this agreement, Bayley had an interest in the ves- sel, and in her freight; and he might finally sell and dispose of her as he saw fit, for the pay- ment of his debt. Whether this interest was, according to the distinction of our law, a legal or equitable interest *is not material to pl'JTl the question. That distinction, I believe, is not known in any other country, except the one from which we derive our jurisprudence. It is peculiar to England and the United States. It is sufficient, therefore, that Bayley had a vested interest, which he might enforce in some of the courts of any country. His in- terest being such, and he being one of the bel- ligerents, the property was not wholly neutral, and the implied warranty is, therefore, not supported. 2. It appears by the verdict that the circum- stances relative to the interest of Bayley were not disclosed to the underwriters. If they were material to the risk, which I think they undoubtedly were, they ought to have been Charming Betsey, 2 Cranch, 64, 130; Wilson v. Maryat, 8 T. R., 31. See Sears v. City of Boston, 1 Met., 250. The Ocean, 5 Rob. Adm., 90 ; Otis v. City of Boston, 12 Cush., 44, 50 ; Pennsylvania v. Ravenel, 21 How., U. S., 103. A warranty that property is "American," means that it is owned by an "American," and has proper proofs of that ownership and that those proofs will be properly used. Lewis v. Thatcher, 15 Mass., 431; Baring v. Clagett, 3 B. and P., 301. See Barker v. Phoenix Ins. Co., 8 Johns., 307 ; JOHNSON'S CASES, 2. Blagge v. N. Y. Ins. Co., 1 Caines, 549 ; Peyton v Hallett, 1 Caines, 363 ; Coolidge v. N. Y. Firemen's Ins. Co., 14 Johns., 308 ; Griffith v. Ins. Co. of N. A., 5 Binn., 464 ; Livingston v. Md. Ins. Co., 7 Cranch, 506. See for particular instances of warrantees of nationality, held to be broken or otherwise. Lud- low v. Bowne, 1 Johns., 1 ; N. Y. &c., Ins. Co., v. De- Wolf, 2 Cow., 56 ; Hig-gins v. Livermore, 14 Mass., 106; Catlett v. Ins. Co., 1 Paine, 594; Murgatroyd v. Crawford, 3 Ball., 491. 477 171 SUPREME COURT, STATE OF NEW YORK. 1801 disclosed; and the defendants -would then have had an opportunity to act as they saw fit. It is true that it is also found that the de- fendants afterwards admitted that had they known the agreement, its contents would not have induced them to demand a higher pre- mium, under an idea that it did not vest any interest in Bayley. But if the light in which I have viewed it be just, this idea was incor- rect, and founded in mistake, and, therefore, cannot affect the merits of the question. Although the terms of the agreement were not fully known to the French admiralty; yet it appeared by a letter from William Hart to Bayley that the vessel was conveyed by a bill of sale in trust, as above mentioned, and that the court went on this ground, among others, in condemning the vessel, and I think the evidence was sufficient to justify the sentence. For these reasons, I am of opinion, that the plaint- iffs cannot recover; that the policy was void ab initio, and the risk never commenced. But as no actual fraud has appeared, the plaintiffs are entitled to a return of the premi- um; and for this they ought to have judgment. The right to a return of the premium has been 1 7 2*J already decided in this *court, under similar circumstances; and the reasons in sup- port of that decision need not be repeated. KENT, J. Two questions arise in this cause: 1. Was the vessel warranted American? If so; 2. Do not the condemnation at Cape Fran- cois, and the fact that Bayley, the cestui que trust of the profits of the vessel, was a British subject, furnish sufficient evidence of a breach of the warranty. 1. The first question has already been de- cided in this court, in the case of Goto v. Low. (1 Johns. Gas., 141.) It was there determined that if a vessel be described as an American vessel, it amounts to a warranty that she is American. 2. As to the second question, it is sufficient to refer to the bill of sale and agreement, without taking notice of the sentence at Cape Francois, which is destitute of precision, and does not state with clearness the result of the deductions of the court. It appears that Mur- ray and Hart took a bill of sale of the vessel, as trustees for Bayley, and that he was, in equi- ty, the owner, or cestui que trust, or entitled to the profits of the vessel during the voyage. This was sufficient under our own law to de- stroy her privilege as an American vessel. The act of Congress declares that no vessel shall continue to enjoy such privilege any longer than she shall continue to be wholly owned by American citizens; nor shall an American register be obtained without affida- vit that no foreigner is either directly or indi- rectly, by way of trust, confidence, or other- wise, interested in the vessel, or in the profits and issues thereof. The section in this act, prescribing the form of the oath, accordingly explains and illustrates the meaning of the other part, that the vessel must be wholly owned by American citizens. This brig, therefore, sailed without being entitled to an American register, within the true intent and meaning of the act ; and one of the enemies of 1 73*] France, being a cestui qtie *trust of her 478 profits, she was not, in reference to the pow- ers at war, to be considered a neutral vessel entitled to the privileges of neutrality. It is easy to perceive that if such arrangement was to be permitted, foreigners resident abroad could trade with all the immunities of Ameri- cans, contrary to the policy of our statute, and contrary to the right of maritime capture, as it respected the belligerent powers. I am of opinion, therefore, that the in- terest of Bayley in the profits of the vessel, is evidence of a breach of the warranty, the same not being wholly true; and, consequently, that the plaintiffs are not entitled to recover anything except the premium, to which they are of course entitled, there being no actual fraud in the case. (1 Johns. Cas., 310.) LANSING, Ch. J., was of the same opinion. LEWIS, J., was absent. BENSON, J., referred to the opinion deliv- ered by him, in the case of Vandenheuvel v. The United Insurance Company, as to the ef- fect of foreign sentences, as conclusive in this case. Judgment for the plaintiffs, for a return of premium only. 1 Cited in 2 Johns., 162 ; 8 Johns., 319. *LAING v. THE UNITED INSURANCE COMPANY. THE SAME v. THE SAME. THE SAME w. THE SAME. Marine Insurance Warranty Contraband of War Capture Sentence of Condemnation Evidence. Where a policy of insurance contained the fol- lowing clause : *' It is also agreed that the property be warranted by the assured, free from any charge, damage, or loss, which may arise in consequence of seizure or detention, for or on account of any 1. Several other similar causes were also decided this term. In Haskin v. The New York Insurance Company, the vessel was captured by the British, i and condemned as lawful prize ; no reason being I assigned for the condemnation in the sentence. On ' the principles decided in Goix v. Low, and Vanden- heuvel v. The United Insurance Company, the court (Lansing, Ch. J., and Lewis, S., being absent) con- sidered the word "American" as amounting to a war- ranty, and the sentence of the Admiralty Court, though general, as conclusive. In Vandenheuvel v. Church, there was no warranty contained in the policy; but in the written instructions to the brok- er, the ship was represented to be American, and ! the property of a citizen of the United States, resid- I ing in New York. The vessel was condemned as the property of Spanish subjects, enemies of Great Britain ; and the court considered the representa- tion as equivalent to a warranty and the sentence of the Admiralty Court as conclusive evidence of a breach of warranty. But by the reversal of the judg- ment, in the case of Vandenheuvel v. The United In- surance Company, in the Court of Errors, foreign sentences are now no longer held to be conclusive. NOTE. Sentence of foreign court of Admiralty, it# effect. Contraband of war. See Vandeheuvel v. United Ins. Co., post 461, and note in this edition. JOHNSON'S CASES, 2. 1801 LAING v. THE UNITED INSURANCE COMPANY. 174 illicit or prohibited trade, or any trade in articles contraband of war," and the vessel and cargo hav- ing been captured, part of the cargo, consisting of block-tin and tin-plates, was condemned as contra- band of war ; it was held that the insured were not entitled to recover for any loss, in consequence of the capture ; the sentence of the Court of Admiralty being conclusive evidence that the tin was contra- band of war. N. B. This judgment was afterwards (1802) reversed in the Court of Errors. Citations 1 Johns., Cas., 16 ; 1 Johns., Cas., 341. These were actions on three different poli- cies of insurance : one on the vessel, another on the cargo, and the other on the freight. The first cause was tried at the December cir- cuit, before Mr, Justice lladcliff, and a ver- dict was found for the plaintiff for a total loss, subject to the opinion of the court on a case, the principal facts of which apply equally to all the causes. The policies were in the usual form, with this additional clause: "It is also agreed that the property be warranted by the assured, free from any charge, damage, or loss, which may arise in consequence of seizure or deten- tion, for or on account of any illicit or prohib- ited trade, or any trade in articles contraband of war." The voyage insured was from New York to La Vera Cruz, with leave to touch at the Havana. The plaintiff was owner of the vessel, and a naturalized citizen of the United States. The vessel was captured on her voy- age by a British ship of war, and carried into New Providence ; and on the 3d day of August, 1799, the vessel and that part of the cargo belonging to the plaintiff, were acquit- ted ; but six blocks of tin, and seventy-eight boxes of tin-plates, being part of the cargo, and belonging to other shippers, were con- demned by the Court of Vice-Admiralty, as contraband of war. After notice of the capt- ure, and before notice of the acquittal, the 175*] vessel *and cargo, belonging to the plaintiff, together with the freight, were, on the 12th of August, 1799, abandoned to the defendant. Soon after the acquittal, the ves- sel returned to New York ; but most of the cargo belonging to the plaintiff was sold by him at New Providence to defray the expenses of the prosecution, and the remainder was brought back to New York. The plaintiff, on the 15th June, and previous to the date of policy on the freight, chartered the vessel to Robert Weir and James Johnson, for the voy- age, for $3,600, payable on the return of the vessel and discharge of her cargo. It was admitted in the case that tin in blocks is a necessary ingredient in the man- ufacture of brass cannon ; and that tin-plates are used in the manufacture of camp kettles, canteens, and cannister shot, and that they are sometimes used in lining the magazines and cabooses of vessels of war. That block- tin and tin-plates are used in various other manufactures, not applicable to military or naval purposes, and are also applied to vari- ous domestic uses; that the number of pur- poses, not military or naval, greatly exceeds the number of those of a military and naval kind, for which they are used. It was agreed that either party might turn the case into a special verdict. Mr. Burr for the plaintiff. JOHNSON'S CASES, 2. Messrs. Hamilton and Troup for the defend- ants. RADCLIFF, J. I think it unnecessary to decide whether tin in blocks, or in any other form, is an article contraband of war ; or to consider the merits of the foreign sentence. If the opinion be correct, that the insured, in every case, undertakes to maintain the truth of his warranty, it is decisive, as between him and the insurer, *in the present case. [*176 Such a construction is consistent with the terms of the warranty in the present policy. The insurers are declared to be free from " any loss which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or of any trade in articles contraband of war." The construc- tion of this warranty I consider to be the same, as the just interpretation of the policy on the face of it, and liable to the same result. There must be a judgment of nonsuit in all the causes. KENT, J. The great point on which these several causes turn, is simply whether the plaintiff has or has not broken his warranty, that the property should be free from loss or charge arising from seizure on account of any trade in articles contraband of war. If he has not, then the seizure and consequent notice of abandonment would entitle him to recover for a total loss. To determine this fact, in respect to the warranty, we are brought to a consideration of the sen- tence of condemnation. Are we to regard the sentence as conclusive evidence of the allega- tion that the tin was an article contraband of war ? If not, and the merits of the judg- ment are to be overruled, is tin an article contraband of war, as between us and Great Britain ? Upon the first question my opinion is that the sentence being direct, and upon the very point of the warranty, is conclusive evidence of a breach of it. The reasons for this opinion have already been given in the case of Vandenheuwl v. The United Insurance Company; and I am accordingly of opinion that judgment must be for the defendant, upon the terms stated in the case. BENSON, J., was of the same opinion. LEWIS, J., was absent. *LANSING, Ch. J. Three questions are [*1 7 7 presented for the examination of the court; but the first, whether tin, in blocks, or tin in plates, are articles contraband of war, is, in the light in which I consider the subject, and the question arising on the warranty, such as renders a decision on the others unnecessary. If the decision of the British Court of Vice- Admiralty, in pronouncing these articles con- traband of war, is correct, or if they are con- sidered as not contraband, and yet the parties are concluded by that decision, it might impose it on the court to consider what influence the other points raised in the cause ought to have on our final determination. As the reasons of the condemnation appear. I consider them as proper objects for the examination of this court ; and this is strictly 479 IT; SUPREME COURT, STATE OF NEW YORK. 1801 conformable to the principles laid down in the cases arising in the British courts, and which, I take it, there is no adjudication of our courts to restrain, except the case of Lud- low v. Dale. (1 Johns. Cas., 16.) That case was determined on the point that the sen- tences of foreign courts were conclusive, after a full argument on the other points presented in the cause, in which the counsel refrained from laying any great stress on it, their atten- tion being principally directed to the other points in the cause. It is certain that the British courts have distinguished between cases presenting a right of condemnation, as deducible from the law of nations, and such as, dictated by peculiar views or situations, are arrogated by the bellig- erent powers to promote their own interest, regardless of the influence that law ought to have on their conduct. On this ground, they have confined them- selves to resisting the effect of local ordi- nances, detracting from the rights of neutrals; but whether the injury to those rights origi- nated in positive ordinances, or were produced 178*] by ^gradually diverging from the line which, consistent with the general maritime law, ought to regulate their conduct, I consider as very immaterial, and cannot, certainly, vary the principles by which it is to be tested. Neutral powers are interested in repelling every attempt to impair their rights, and in protecting the lawful commerce of their citi- zens; and, as one of the means of resisting aggression and defending that commerce, in withholding their sanction from every unjust attempt to invade it. I take it that there is no essential difference between cases of condemnation produced by arbitrary ordinances, and arbitrary and un- founded extensions of principles, without the aid of ordinances; that both ought to be con- sidered as equally open to examination; and that we ought not, nor does justice or general convenience require us, to close the door, so as to exclude such examinations. In the case of Ooix v. Low (1 Johns. Cas. , 341), I entered into a particular examination of all the cases adduced to prove the conclu- siveness of foreign sentences; and I stated the rules deduced from them, as laid down by Lord Mansfield, as collected from all preceding cases, and my opinion respecting them, as a general result from the whole. Tin, in the different shapes in which it is described in this case, is susceptible of appli- cation to a gjeat variety of uses; and, with few exceptions, is applied to purposes which have no connection with military or naval equip- ments. The domestic and ordinary purposes to which it is applied, create a consumption of that article in a much greater and more exten- sive degree than any warlike purposes. If its destination might be permitted to mingle in the circumstances justifying the condemnation, and it had been intercepted on 179*] its way to a port in which hostile *prep- arations in navy yards or foundries of can- non were carried on, these considerations would, in this question, operate against the condemnation; for it is expressly admitted that there was no establishment or the latter description in the West Indies, and the case is 480 silent as to the former: it cannot, therefore, be necessary to trace the reasoning on this subject. If the extension given to the principle re- specting naval and military stores, as laid down in this sentence, is correct, it is difficult to determine what modification of wood or metals can exempt them from so comprehen- sive a construction. It appears to be palpably misapplied; it is an arbitrary and unfounded extension; as such it ought to be disregarded, as affecting the rights of neutrals, and which they are not bound to sanction in their judicial proceedings, as derogatory from those rights. The policy contains a warranty that the sub- ject insured shall be free from any charge, damage, or loss, which may arise in conse- quence of any seizure or detention, for or on account of any Illict or prohibited trade, or trade in articles contraband of war. This warranty is preciselv to the point on which the loss happened. 'The condemnation was expressly on the ground that the articles condemned were contraband of war. But the insured had stipulated by their warranty that all seizures for or on account of any illicit or prohibited trade, should not affect the in- surers. On this point, respecting the warranty, I therefore concur with the general result, de- duced by the rest of the court from the case, that the defendants ought to have judgment. Judgment for tJie defendants. 1 Reversed Post, 487. *VOS AND GRAVES [*18O THE UNITED INSURANCE COMPANY. Marine Insurance Blockade Attempt to Enter Breach of Warranty. A vessel was insured from New York to Amster- dam, and at the time of her sailing 1 from New York, it was not known that the Texel was blockaded by the British. The master, during the voyage, put into Cuxhaven, and was there informed that Am- sterdam was blockaded: but supposing that he should not be captured for the first attempt, sailed from Cuxhaven with the intention of entering Amsterdam, knowing it to be blockaded ; and on his way the vessel was captured by a British cruiser and condemned. It was held that sailing from Cuxhaven with the knowledge of the blockade, and with the intention to go to Am- sterdam, was, prima facie, evidence of an attempt to enter a blockaded port ; and that such an attempt was a breach of the warranty of neutrality, and the insurers, therefore, not liable on the policy. N. B. This judgment was afterwards reversed in the Court for the Correction of Errors. Citations 1 Johns. Cos., 144 ; 1 Atk., 490 ; 2 Fonb., 155; Millar, 136-144, 179-188 ; 2 Valin, 77, 79, 161, 650. THIS was an action on a policy of insurance on goods, on board of the American brig, the Columbia, from New York to Am- sterdam, dated the 21st of June, 1798, at a premium of 17 1-2 per cent. The cause was tried on the 26th of March, 1800, at the New York circuit; and a verdict was taken for the plaintiffs, subject to the 1. This Judgment was afterwards (1802) reversed in the Court of Errors. JOHNSON'S CASES, 2. 1801 Vos AND GRAVES v. THE UNITED INSURANCE COMPANY. 180 opinion of the court, on the following case, which it was agreed might be changed into a special verdict, by either party. The property was warranted American. It was also warranted that no loss should arise to the defendants by capture, seizure, or de- tention in the port of Amsterdam, the Texel, or the Vlie. The assured, for an additional premium of two and a half per cent. , had liberty, by a mem- orandum at the foot of the policy, to touch and trade at Hamburg. This permission was granted in consequence of the following letters from the plaintiffs to the defendants. NEW YORK, June 25th, 1798. "The cargo of the brig Columbia, Benja- min Weeks, master, being insured at the New York Insurance Company, at and from hence to Amsterdam, on the 14th instant, and the acounts daily arriving rendering motives of precaution extremely necessary; we, therefore, propose to order the vessel to touch at Ham- burg 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 to proceed 181*] to *Amsterdam, in that case the risk should end at Hamburg." At the foot of this letter the president of the company made this memorandum: " Two and a half per cent, additional premium for leave to call at Hamburg, to be returned in case the risk shall end there." NEW YORK, June 27th, 1798. "On being informed that the Texel was blockaded by the English, and a ship from Philadelphia, bound to Amsterdam, had ac- tually been sent to Yarmouth, we applied to you yesterday to obtain leave for the brig Columbia to touch at Hamburg for orders. From this circumstance we conceived it highly interesting to the office to grant the permis- sion, 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 circumstance of the blockade was unknown to us at the date the insurance was effected; and it is probable, it may be withdrawn by the time the vessel reaches Amsterdam." The Columbia was an American brig, and the property insured was also American. The Columbia sailed from New York about the 1st of July, 1798, on the voyage insured. She arrived at Cuxhaven, on her way to Ham- burg, in August following. Three or four days thereafter, she sailed from Cuxhaven for Amsterdam. The day she left Cuxhaven she was captured by a British sloop of war, called the Ranger, and carried into Yarmouth. The mate of the brig testified, " That it was generally understood among the Americans at Cuxhaven at the time the Columbia sailed from thence, that Amsterdam was considered as a blockaded port; and it was so understood 182*] by *himself and the captain of the brig; that the Ranger, upon falling in with the said brig, immediately seized her, as being bound to a blockaded port; and also on the pretext of her having Dutch property on board. JOHNSON'S CASES, 2. N. Y. REP., BOOK 1. "That it was also generally understood by the Americans at Cuxhaven, at the time of the brig's leaving it, and it was so understood by. him and the captain, that it was the practice of British cruisers to stop vessels bound to Amsterdam, and send them back without seiz- ing them; and only to seize in case of a sec- ond attempt to enter Amsterdam, and under this idea the captain sailed for Amsterdam." The brig and cargo were libeled in the High Court of Admiralty in England, and both condemned for the captain's attempting to go to a blockaded port. Sir William Scott, Judge of the court, pro- nounced 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 unnecessary for me to observe that there is no rule of the law of nations more established than this, that the breach of the blockade subjects the property so employed to confiscation. Among all the contradictory positions that have been ad- vanced on the law of nations, this principle has never been disputed. It is to be found in all books of law, and in all treaties. Every man knows it. The subjects of all states know it, as it is universally acknowledged by all fovernments which possess any degree of civil nowledge. "This vessel comes 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 Amster- dam was in a state of investment; and there- fore there is no proof immediately affecting the owners. But a person may be penally affected by the misconduct *of his agents, as well [* 1 83 as by his own acts; and if he delegates general powers to others, and they misuse their trust, his remedy must be against them. The master was, by his instructions, to go north about to Cuxhaven. This precaution, is, perhaps lia- ble to some unfavorable interpretation. The counsel for the claimant have endeavored to interpret it to their advantage, but at the best it can be but a matter of indifference. When he arrived at Cuxhaven, he was to go imme- diately to Hamburg, and to put himself under the direction of Messrs. Boue & Company. They therefore were to have the entire domin- ion over this ship and cargo. It appears, however, they corresponded with persons at Amsterdam, to whom further confidential in- structions had been given by the owners; and these orders are found in a letter from Messrs. Vos & Graves, of New York, to Boue & Com- pany, informing them that the Columbia was intended for Amsterdam, consigned to the house of Crommelin, to whom Boue & Com- pany are directed to send the vessel, "if the winds should continue unsteady, and keep the English cruisers off the Dutch coast." If not, they were to unload the cargo, and for- ward it, by the interior navigation, to Amster- dam. Boue & Company accordingly directed the master "to proceed to Amsterdam, if the winds should be such as to keep the English at a distance." There is also a letter from the 1. See 1 Rob. Aclm. Rep., 154. The case was heard in the High Court of Appeals the 12th August, 1801, and the sentence of the court below was affirmed. 31 481 183 SUPREME COURT, STATE OF NEW YORK. 1801 master to Boue from Cuxhaven, in which he says, "Amsterdam is blockaded." "We have this fact, then, that when the master sailed from Cuxhaven, the blockade was perfectly well known both to him and the consignees; but their design was to seize the opportunity of entering whilst the winds kept the blockading force at a distance. Under these circumstances, I have no hesitation in saying that the blockade was broken. The 184*] blockade was to be considered *as legal- ly existing, although the winds did occasion- ally blow off the blockading squadron. It was an accidental change which must take place in every blockade, but the blockade is not therefore suspended. The contrary is laid down in all books of authority; 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 it has been said that by the American treaty there must be a previous warning. Cer- tainly where the vessels sail without a knowl- edge 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 cere- mony, of no use, and therefore not to be re- quired. The master, the consignees, and all persons intrusted with the management of the vessel, appear to have been sufficiently in- formed of this blockade, and therefore they are not in the situation which the treaty sup- poses. It is said, also, that the vessel had not ar- rived; that the offence was not actually com- mitted, 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 beginning to execute that in- tention, and is an overt act constituting the offence. From that moment the blockade is fraudulently invaded. I must, therefore, on full conviction, pronounce 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 prop- erty concerned in the transaction. The ship and cargo belong, in this case, to the same in- dividuals, and therefore they must be both in- volved in the sentence of condemnation." It was admitted that at the date of the policy, to wit, on the 21st June, 1798, neither party knew of the Texel's being blockaded. 1 85*] *On receiving the news of the capture, the assured duly abandoned to the defendants. RADCLIFP, J. This was the case of a policy on goods on board of the American brig, the Columbia, from New York to Amsterdam, with liberty to touch and trade at Hamburg. The property was warranted to be American, or neutral. The vessel sailed from New York, and arrived at Cuxhaven, on her way to Ham- burg, and soon after sailed from thence to Amsterdam. She was captured, the day she sailed from Cuxhaven, by a British sloop of war, carried to Yarmouth, and libeled in the English Court of Admiralty, and, with her cargo, was condemned for attempting to enter a blockaded port. On the 21st of June, 1798, the date of the policy, neither party knew of the investment of Amsterdam; and this excludes the idea, that 482 by any special agreement or understanding, the insurance could have been meant to ex- tend to any peril, for breach of the particular blockade in question, if any existed. 1. It is a settled rule that the insured, in order to comply with his warranty, must not only maintain the property to be neutral, but so conduct himself towards the belligerent parties as not to forfeit his neutrality. He must pursue the conduct, and preserve the character of a neutral. This being the import of the warranty, and the condemnation being^ founded on a breach of neutrality, it operates to preclude the plaintiffs, on the principles adopted with regard to the effect of foreign sentences, in the case of Vandenheuvd v. The United Insurance Company, from a^hy recovery on the policy. 2. In the present case, the plaintiffs, be- fore the vessel sailed from New York, to wit, on the 27th of June, in consideration of law, had notice of the blockade. This appears by their letter to the defendant of that date.. *Although the information was not then [* 1 8G certain, it was sufficient to excite serious appre- hensions, and to put them on their guard, which, in judgment of law, is deemed com- petent notice. (1 Atk., 490; 2 Fonb., 155.) The captain, however, before he sailed from Cuxhaven, had actual notice of the blockade; 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 opportunity 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 this subject, it is obvious, cannot apply to a case where the party already possesses the requisite informa- tion. This is the rule in all cases where the party is to be affected by notice. But it is objected that the captain was not in the act of breaking the blockade; that it existed merely in intention, and he was, there- fore, not liable to seizure. If this idea be cor- rect, then no such capture can be lawful, until the line of blockade be actually invaded. The resolution may be formed and acted upon; and no progress in the execution of it can be stopped or prevented till the breach be made. A construction so forced and limited appears to me inconsistent with an effectual 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 when the resolution to break a blockade is formed, and begun to be executed, within a reasonable distance, so as to render it practicable, the offence is incurred and the party liable to seizure. Such was the case in the present in- stance. From the testimony of the mate, as well as from the sentence, it appears that an actual blockade was understood at the time to exist. As a fact, it seems not to have been questioned. But the particular situation of *the [*187 blockading force does not appear, nor do I think it material. Although the party may have intended to avail himself of an acciden- tal interruption, occasioned by winds or tempests, this intent will not excuse him; for such interruption cannot be considered as de- JOHNSON'S CASES, 2. 1801 Vos AND GRAVES v. THE UNITED INSURANCE COMPANY. 187 stroying the existence of the blockade. At least, if he attempts to enter, under such cir- cumstances, it is at his peril, and he subjects himself to the hazard of seizure and confisca- tion. 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, having for- feited their neutrality, ought not to recover, admitting the sentence to be open to investiga- tion. It may be proper to add that the plaintiff here is not entitled to the premium, because the risk had actually commenced, and the warranty was forfeited by a subsequent breach of neutrality. KENT, J. On the facts in this case, 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 indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be re- ferred to his principal, who appoints him; and whenever 'a loss happens through the master's fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it. It is a fault in the master, to occasion a loss of 188*] 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, breaking 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 natural 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 cannot be supposed, un- less it be so expressed, that the insurer takes upon himself such risk. The risk of fault in the master (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 in- sured selects and controls. (Millar, 136-144, 179-188; 2 Valin, 77, 79, 161, 650.) In answer to the second question, I have no doubt in concluding that there is sufficient evidence in the case, 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 cases of Vandenheuvel v. The United Ins. Company, and Vandenheuvel v. Church. There is also sufficient evidence, without resorting to the sentence. When the captain left Cuxhaven, he sailed with the un- derstanding that Amsterdam was a blockaded port; and he sailed also under the idea that if JOHNSON'S CASES, 2. 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 agent, until they repel it by direct proof to the contrary. But there is no such contrary testimony in the case. [*189 It would seem, indeed, to be implied, from some of the observations of Sir William Scott, which are thrown into the case, that winds had occasionally blown off, or kept at a dis- tance, 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 Cux- haven, that Amsterdam was blockaded; that he sailed with an intent to attempt to enter it, and with the understanding that for his first attempt he would only be sent back, and that he was captured the day he sailed. How near he had approached the coast of the Vlie and Texel we do not know. He might have reached the coast, for it is within the reach of a day's sail. Every reasonable conclusion that the admissions of the mate will warrant, is, however, to be drawn against the plaintiffs, so long as they furnish no other proof to repel those admissions. My opinion accordingly is that the existence of the blockade, 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 neighborhood of the blockading port, are all necessarily to be inferred from the case, and that judgment ought, therefore, to be given for the defendants. BENSON, J., was of the same opinion. LEWIS, J., was absent. *LANSING, Ch. J. I must differ in [*19O opinion from the rest of the court. The view in which I have considered this subject has led me to conclude that the blockade, from the circumstances stated in the case, constituted one of those risks intended to be insured againts by the policy, it not being in contempla- tion of the parties, at the time the insurance was made, to break the blockade: hence the blockade may well be taken as an event cal- culated to defeat the voyage, occurring since its commencement, and which would not justify the captain to divert his vessel from the port of destination, on the information that a blockade existed. The British treaty provides that a vessel which sails for a blockaded port, without knowing of the blockade, shall be turned away from such port; but she shall not be detained, &c., unless, after notice, she shall again attempt to enter. The expression appears to me only to apply to the inception of the voyage. The knowl- edge of blockade must exist before her leaving 483 190 SUPREME COURT, STATE OF NEW YORK. 1801 her port of departure. If acquired, in any stage of the voyage, after its commencement, the captain is not, in my opinion, obliged to take notice of it, before an attempt to enter. The vessel's touching at Cuxhaven was merely in the continuation of the voyage; and hence she was entitled to prosecute her voyage as if continued without touching at Cuxhaven; and if the British courts have considered the beginning of the voyage as from Cuxhaven, so far as it respects the question between the parties, the ship was entitled to be turned away without seizure, and only subject to condem- nation, in case of a second attempt, whatever might be the construction of the admirality, on general principles, as applied to it. The question is, was the voyage in its com- mencement, contrary to the law of nations? 1O1*] Was this an illegal voyage? *The touching at Cuxhaven was provided for by the policy. It was a risk the insurer had under- taken, and he must submit to the loss; as in a case of a war breaking out in the course of a voyage. Judgment for the defendants* Reversed Post, 469; 1 Cai. Cas. in Er., 7. Cited in 8 Johns., 277; 13 Johns., 458; 12 Wend., 468; 3 Peters, 335; 3 Mason, 26. JAMES JACKSON V. THE NEW YORK INSURANCE COM- PANY. Marine Insurance Warranty "American Property" Transfer after Insurance Nat- uralized Citizen Capture-^ Condemnation Breach of Warranty. A vessel belonging to A, who was a natural-born citizen of the United States, was insured by a policy dated the first of November, 1796, on a voyage from New York to London; and was warranted American property. Afterwards and before the vessel actually sailed on the voyage insured, viz., on the 27th of April, 1797, A sold and transferred the vessel to B, a native of Great Britain, who had emigrated to New York and become a naturalized citizen of the United States, on the 6th of April, 1797. The vessel having been captured by the French, and con- demned as good prize; it was held, in an action on the policy, that B was to be considered as having emi- grated, flagrante beUo, and a British subject, so as justify the condemnation ; and that A, having by his own act, before the commencement of the risk, changed the property from neutral to belligerent, there was a breach of the warranty. But see Duguet v. Rhinelander. reversed in the Court of Errors, 1801 ; 1 Caines' Cases in Error, xxv. Citations 1 Johns. Cas., 16, 341, 360, 310; Doug., 732; Park, a53; 1 Cai. Cas. in Er., 25. THIS was an action on a policy of insurance, on the ship Oneida, from New York to London, warranted American property, proof of which, if required, to be made in New York. The policy was dated the 1st of November, 1796, when the ship was owned by the plaintiff, a natural-born citizen of the United States. Afterwards, on the 29th of April, 1797, and before the vessel sailed on the voy- 1. But see S. C. in the Court of Errors. 1 Caines' Cases in Error, .7. 484 age insured, the plaintiff sold and transferred her to James Jackson, a British subject ; but who became a naturalized citizen of the United States on the 6th of April, 1797. The Oneida set sail for New York on the 3d of May, 1797, and was captured on the 25th of the same month, by a French Privateer, and carried into Nantz and there condemned. The grounds of *the condemnation, as they appeared [*192 from the proces verbal, were: 1. The want of a role d' equipage, as required by the French regulations of 1704, 1744 and 1778. 2. That the manifest was not signed by a public officer. 3. That James Jackson confessed himself to have been born in England, and did prove his naturalization in the United States. The principal reason, however, was the want of a role d' equipage, and the court adjudged "the ship good prize, as belonging to the enemies of the republic, for want of regularity in the sea-papers. The sentence of condemnation was con- firmed on an appeal. The ship was duly abandoned to the defendants. At the trial at the November circuit, 1799, in New York, a verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts. Messrs. Hamilton, Riggs and Ecertwn for the plaintiff. Messrs. B. Livingston and Burr for the de- fendants. RADCLIFP, J. 1. It is sufficient to decide this case that the plaintiff has not maintained his warranty, according to the principles already determined on this subject. (1 John- son's Cases, 16, 341, 360.) But, 2. Here was a transfer of the property, sub- sequent to the insurance, to one who, in the view of the belligerent parties, was not entitled to be regarded as a neutral. James Jackson emigrated flagrante bello; and we have already decided (1 Johnson's Cases, 360. But see 1 Caines's Cases in Error, xxv.) that no citizen or subject of either of the parties at war, can change his allegiance, so far as to alter, *with respect to them, the relation in [*193 which he stood at the commencement of the war. The French, had, therefore, a right to consider him as a British subject; and the ship, after being transferred to him, was liable to seizure and condemnation by them, as enemy's property. The risk, therefore, was essentially altered and increased; and the plaintiff, by the transfer, voluntary destroyed the neutrality which he had guaranteed to maintain. The plaintiff, therefore, cannot recover on the policy, but as he has not committed any actual fraud, and the risk never commenced, he is en- titled to a return of premium, on the principle adopted in several cases (1 Johns. Cases, 310), already decided in this court. KENT, J. This cause offers two points for our consideration: 1. What effect, if any, is the sale of the ship to James Jackson to have upon the policy? 2. If none, then is there the requisite evi- dence of a breach of the warranty? JOHNSON'S CASKS, 2. 1801 W. SEAMAN v. B. F. RASKINS. 193 1. The policy was subscribed in November; and in the April following, and previous to the sailing of the ship, the plaintiff sold her to James Jackson. He was born a British subject, and was naturalized on the 7th of April, 1797. How long previous thereto, James Jackson had fixed his domicile in this country, does not appear. The Act of Congress of the 27th of March, 1790, required only a previous resi- dence of two years. The Act of Congress of the 29th January, 1795, enlarged the term of residence to five years, but provided that the enlargement of the term should not apply to aliens then resident within the United States. As James Jackson was naturalized within two years and three months from the time of pass- ing the last act, the naturalization is proof of his residence here in January, 1795; but it is no evidence of any previous residence. The 194*] presumption antecedent *to that time must be that he resided under the jurisdiction of the King of Great Britain, as every person's domicile must be presumed, until the contrary be shown, to be in the country where he was born, and to which he owes his native alle- giance. In January, 1795, the war between Great Britain and France had already existed for two years, and James Jackson is accord- ingly to be considered as changing his domicile, and emigrating, flagrante bello. This natural, and as it appears to me, legal presumption, is strengthened by this further consideration, that we are to conclude, from the fact of his subsequent naturalization, that James Jackson came to this country with a view of becoming a citizen; and in that case, that he would not have postponed the solem- nity for any considerable time beyond the period prescribed by law; and if he had in fact fixed his residence here before the com- mencement of the war, he was entitled to the privilege of naturalization two years, at least, before he actually obtained it. The case of Duguet v. Rhimlander ( 1 Johns. Cas., 360. But see 1 Caines's Cases in Error, 25) is in point. The plaintiff there was a Frenchman by birth, and was naturalized here the llth of October, 1796; and there was no proof in the case of any previous residence. The decision of the court, accordingly, went upon the ground of his emigration here during the war, and that he was, therefore, in the purview of the law of nations, to which the warranty had reference, still a Frenchman. My conclusion then is, that the plaintiff did, by his own act, and without the assent of the insurer ( for none appears ), change the prop- erty which he had warranted neutral, into bel- ligerent property; and this, too, before the com- mencement of the risk. Upon such an act, I have no difficulty in declaring what must be the result. A war- ranty must be true at the commencement of 195*] the risk. (Doug., 732; Eden v. * Park- inson, Park, 353.) This was not so; and what renders the case the stronger, and would, per- haps, have been decisive, if done even after the risk begun, is that the property ceased to be neutral by the act of the party himself. It would be against all rule and right for a party in such a case to avail himself of a loss, the consequence of his own voluntary deed; and therefore, without having any reference to the JOHNSON'S CASES, 2. sentence of condemnation, I think the plaint- iff ought not to recover beyond the amount of his premium, subject to the deduction stipu- lated in the policy. BENSON, J., was of the same opinion. LEWIS, J., was absent. LANSING, Ch. J., not having heard the ar- gument, gave no opinion. Judgment for the plaintiff for a return of the premium only. Overruled Post, 476. W. SEAMAN 0. B. F. HASKINS. 1. Judgment Cestui que Trust Acceptance. 2. Id. As Discharge of Bond. A, being 1 indebted to B in the sum of $1,785 for goods sold and delivered, and to other creditors, on the 1st of January, 1793, executed a bond to C and D for $22,500, for and on account of all his debts, and including the sum due to B, on which bond a judgment was entered m April, 1793. Afterwards, on the 18th of July, 1793, A gave B a single bill for the $1,785; and on the 1st of August, 1793, B affirmed the trust in C and D as to the judgment, and on the 2d of August, directed a ca. sa. to be issued on the judgment, on which A was taken into cus- tody, and afterwards by consent of B was dis- charged. In an action brought by B on the single bill against A, it was held that B, having as a ce#- tui que trust of the judgment.affirmed the trust, and elected to proceed on the judgment, and to ob- tain satisfaction of his debt; the single bill was thereby discharged. THIS was an action of debt. The declara- tion was on a single bill for $1,785.85, dated the 18th of July, 1793. The defendant pleaded, 1. Non estfactum. 2. Payment. 3. That " on the first day of January, 1793, he, the said Benjamin, was, at the city, *county and ward aforesaid, indebted to [* 1 9G the said Willet in a large suni of money, to wit, the sum of $1,785.85, for goods, wares and merchandises, then before, that time, there sold and delivered by the said Willet to the said Benjamin; and being so indebted, he, the said Benjamin, afterwards, to wit, at the city, county and ward aforesaid, made and executed a certain writing obligatory, to a certain An- thony Franklin, Joseph Bird and Edmund Prior, for a large sum of money, to wit, 9,000. , being of the value of $22,500, for, and on ac- count of the said sum of money, so due to the said Willet, for the said goods, wares and mer- chandises, so as aforesaid sold and delivered by the said Willet to the said Benjamin, and for, and on account of all other moneys owing by the said Ben jamin ; and that, afterwards, to wit, of th,e term of April, 1793, the said An- thony Franklin, Joseph Bird and Edmund Prior, recovered judgment on the said writ- ing obligatory for 9,OOOZ. , being of the value aforesaid against the said Benjamin; and that afterwards, to wit, on the said 18th day of July, 1793, at the city, county and ward afore- said, the said Benjamin made and executed the said bill obligatory, in the declaration of the said Willet mentioned; and the said Benjamin avers that the said bill obligatory, 485 196 SUPREME COURT, STATE OP NEW YORK. 1801 in the said declaration mentioned, was made and executed by him to the said Willet, for the same sum of money due to the said Willet, for the said goods, wares and merchandises, so as aforesaid sold and delivered; and the said Benjamin further avers that the said judgment, so as aforesaid recovered, for, and on account of the said sum of money so due to the said Willet, as for and on account of all other moneys owing by the said Benjamin, ex- ceeded the whole amount due and owing from him; and the said Benjamin further avers that 197*] the said sum of $1,785.85 part of *the said sum of 9,00(M., being of the value of $22,- 500; and the said sum of $1,785.85, in the bill obligatory, in the declaration of the said Willet, is one and the same sum of money, and not different. And the said Benjamin further avers that the said Willet, afterwards, to wit, on the first day of August, 1793, at the city, county and ward aforesaid, accepted the said judgment, so recovered by the said An- thony Franklin, Joseph Bird and Edmund Prior, in full satisfaction and discharge of the said bill obligatory, in the said declaration of the said Willet mentioned ; and that, afterwards, to wit, on the second day of August, in the said year 1793, at the city, county and ward aforesaid, the said Benjamin, at the request of the said Willet, was taken into custody by the sheriff of the City and County of New York, on a capias ad satisfaciendum, issued on, and by virtue of the said judgment, and was after- wards, to wit, on the first day of January, 1795, at the city, county and ward aforesaid, by the consent of the said Willet, discharged from the said custody of the said sheriff. And this he is ready to verify, wherefore," &c. There was the usual replication and issue as to the first and second pleas. To the third plea there was a demurrer and joinder. Mr. Golden, in support of the demurrer. Mr. Buii', contra. KENT, J. , delivered the opinion of the court (Lewis, J., absent). The demurrer admits all the facts stated in the last plea ; and the question then is, whether those facts do not amount to a satisfaction of the bill. 198*] *A judgment being a debt of a higher nature, will be sufficient to discharge a bond, if accepted, as a satisfaction. It is a certain and valuable satisfaction. The only objection to it, in the present case, is, that it was not stated to have been regularly assigned to the obligee, and placed under his power, by the act of the trustees. But upon examination of the plea, this appears to be sufficiently, al- though not expressly, alleged. The plaintiff, as cestui que trust, affirmed the trust, and ac- cepted the judgment in satisfaction,, and pro- ceeded to exercise power over it. Acceptance, here, is a relative term, and implies the pre- vious offer, the requisite act on the part of the trustees, as owners of the judgment. We must intend this assent from the plea; and, consequently, the plea was sufficient. Judgment for the defendant. Cited in 2 Cai. Cas. in Er., 372. RANKIN v. BLACKWELL, Survivor of HALLETT. Fraudulently Altered Note Evidence Other Notes. Where there are strong circumstances to suspect a note has been fraudulently altered, general cor- roborating 1 circumstances may be admitted in evi- dence to strengthen the suspicions ; as that other notes drawn and indorsed by the same parties, to take up one of which the note in question was given, had been altered. was an action of assumpsit. The plaint- - iff declared on a promissory note, drawn by Blackwell and Hallett, in favor of Arnold and Ramsay, and indorsed by them to the plaintiff. The cause was tried at the last March sittings, in New York, before the Chief Justice. The signature of Blackwell and Hallett was proved to be in the handwriting of Hallett. The defense set up was that the note, after it had been made and issued, had been altered, in the date, and by changing three hundred into thirteen hundred dollars. To support this defense, the defendant offered to prove, 1. That former notes diawn and indorsed by the parties *and to take up one of which [*199 the present note was made, had been altered; 2. A written memorandum made by his de- ceased partner, of the amount of the note, as actually made; 3. The alterations apparent on the note itself, from which the jury might de- cide whether the note had been altered or not; but the judge overruled the evidence offered, and charged the jury that the mere appearance of alterations on the face of the note, unaided by any proof as to the character of the per- sons through whose hands it had passed, was not sufficient to support the defense set up. The jury, accordingly, found a verdict for the plaintiff, for the full amount on the face of the note, with interest-. A motion was made to set aside the verdict, and for a new trial. Mr. Biker for the defendant. Mr. B. Livingston, contra. Per Curiam. The defense in this case rested on the proof of forgery. The evidence that former notes drawn and indorsed by the same parties, to take up one of which the present note was given, had been altered, ought to have been admitted; for it would have served to show what was the real consideration for the note, and thus lead to the detection of the forgery. The mode of this proof is not stated; but we must presume that it would have been legal. Where a defendant can show strong cir- j cumstances, such as erasures, &c., to render a note suspicious, he ought to be allowed to go into evidence of general corroborating circum- stances to strengthen that suspicion. The memorandum of the deceased partner was properly rejected; for it was nothing more than the act of *the party him- [*2OO self. The alterations on the face of the note, unsupported by other proof, would not be competent evidence; but if any previous testi- mony had been offered to show that the note was given for a less sum, or to render it proba- ble that a fraud had been committed, the alter- JOHNSON'S CASES, 2. 1801 VAN BRAMER ET ux. v. THE EXECUTORS OF HOFFMAN. 200 ation on the face of the note would have been a strong corroborating circumstance, if not de- cisive, of the truth of the fact. On the first ground, we think that there ought to be a new trial, with cost to abide the event of the suit. New trial granted. Limited 56 N. Y., 33. Cited in 8 Johns., 206 ; Hoff ., 93 ; 4 Hun., 517 ; 6 T., .& C., 699 ; 31 How., 252 ; 2 E. D. Smith, 7 ; S. C., 10 Leg. Obs., 23. VAN BRAMER ET ux. v. THE EXECU- TORS OF HOFFMAN. 1. Legacy To Infant Grandchild Due at "Age" Construction 2. Id. Maintenance No Provision Interest 3. Id. Charge on Land No Time of Payment. A devised his lands to his two sons, charged with the payment of specific sums by each to his execu- tors, and bequeathed to his granddaughter 200 to be paid to her when she came of age, out of the sums so directed to be paid by his sons to his executors. It was held that the legacy to the granddaughter carried interest from the time it was due, and not before ; and that it was due when the legatee ar- rived at the age of twenty-one years. Citations. 3 Wooddes, 520; 2 Salk., 415; 1 Ves., 310; ICh. Ca., 60; 1 Ves., 307, 310; 2 Vent., 346; 2 Atk., 330 ; 3 Atk., 102 ; 2 Bro. C. C., 69 ; 1 Ves., 211 ; 1 Atk., 505 ; 2 Fonb., 32. THIS was a suit for a legacy. At the last Columbia Circuit, a verdict was taken for the plaintiff, subject to the opinion of the court on the following case: Anthony Hoffman, by his last will, dated the 6th of February, 1784, devised to his son, Nicholas, all his lands lying in the County of Dutchess, and to his heirs forever; and after giving an annuity to his wife, the testator added, "it is my will and desire that my said son, Nicholas, his heirs or assigns, should well and truly pay or cause to be paid, to my exec- utors, hereinafter named, the sum of six hun- dred pounds, after the decease of his wife; " and he made that part of his estate devised to Nicholas chargeable with the payment of the .same. He also devised to his son Abraham all his real estate in Ulster County, which he made chargeable in like manner with the pay- ment of five hundred pounds. He then made 20 1*] *a bequest to Saretie, the wife of the plaintiff, in the following words: "I also give and bequeath to my granddaughter Saretie, daughter of my deceased daughter Annatie, the sum of 200 current money of New York, to be paid unto her after the decease of my said wife, when she comes to the age of 21 years, by my said executors, hereinafter named, out of the moneys which I have before ordered to be paid unto them, by my said sons, Abra- ham and Nicholas; and in case my said grand- daughter should die before the age of 21 years, without lawful issue, that then, in such case, it is my will and order that the said legacy shall descend and devolve to all my above- named children, and be divided by them, share and share alike." The testator's granddaughter, Saretie, was also one of the residuary legatees. The testator died the 5th December, "1784. His wife died the 28th March, 1785, and the grand- daughter came of age the 18th June, 1785. JOHNSON'S CASES, 2. The estate to the two sons yielded each about 42 yearly. The only question submitted to the court was, from what time interest was to be calcu- lated on the legacy to the wife of the plaintiff; whether from the death of the testator, the death of his wife, or from the time the legatee came of age? And the verdict was to stand, or be modified, according to the opinion of the court. Mr. Gardenier for the plaintiff. Mr. Sylvester, contra. RADCLIFF, /"., delivered the opinion of the court: If a legacy be charged on land, and no time of payment is mentioned in the will, the rule is that it shall carry interest from the time of the testator's death, because *the land [*2O2 yields rents and profits. (3 Wooddeson, 520; 2 Salk., 415; 1 Ves., 310.)' But this is not to be considered as a legacy chargeable on real estate; for although the moneys to be paid by the devisee of the testator are so chargeable, and are the fund out of which the legacy is to be paid, yet the charge on real estate was not made with a view to this legacy, or for the benefit of the legatee, but for the purpose of raising a general f undJn the hands of the exec- utors; and which, when paid to them, is to be regarded as personal estate. The legacy is to be paid out of this fund, which is of a larger amount, and not appropriated solely to this object. In this point of view, it is immaterial whether the real estate produced profits or not. Where a legacy is given to a child, payable at a particular time, and no provision is made for its maintenance, equity will decree interest from the testator's death, by way of mainte- nance. (1 Ch. Ca., 60; 1 Ves., 307. 310; 2 Vent., 346; 2 Atk., 330; 3 Atk., 102; 2 Bro. C. C., 69; 3 Wooddeson, 520.) But this is not the case of a child destitute of any provision for its sup- port, and on that account entitled to interest as a suitable maintenance. And the rule does not apply to a legatee who is a grandchild. (1 Ves., 211; 1 Atk., 505; 2 Atk., 330; 3 Atk., 101.) Besides, the legatee .in the present case had a father living, as" we are to presume, and capable of maintaining her. There are other cases, also, in which a court of chancery re- ' fuses to grandchildren *the relief [*2O3 afforded to children who are legatees. (2 Fonb., 32.) We are of opinion, therefore, that the legacy in the present case ought to carry interest from the time it was due, and not before; and it was due when the legatee arrived at full age. 2 Judgment accordingly. Cited in 34 N. Y., 183; 1 Red., 216. I. If a legacy be charged on personal estate, as mortgages bearing interest, or on stock yielding profits,the same rule prevails.(3 Wooddeson,520.) If it & to come generally out of the personal estate, and no time of payment is fixed, it carries interest from one year after the testator's death. (3 Wooddeson, 520 ; 1 Ves., 310.) So, if a legacy be charged on a dry I reversion, it will carry interest after one year, that being a convenient time for the sale. Where a legacy is payable at a certain time, it will bear in- terest from that time, though not demanded. (3 P. Wins., 135 ; 2 Salk., 415, 416 ; 1 Vern., 262 ; 2 Vez., 568 ; 3 Bro. C. C., 419.) 2.-^3 Vesey, Jun., 10, 13, 16. 487 203 SUPREME COURT, STATE OF NEW YORK. 1801 COLE v. HAWES. Grant Covenant Warranty Taken To- gether. Where the grantor in a deed covenanted generally, that he was well seized, &c., and had a good right to convey the premises, &c., and then added further, that he warranted the premises to the grantee and his heirs, " against all claims and demands, except the lord of the soil;" it was held that both covenants must be taken and construed together, and that the last qualified and restrained the first. was an action of covenant, brought on JL the covenant of seisin, contained in a deed of bargain and sale, executed by the defendant to the plaintiff, for certain lands in the County of Columbia. The declaration stated the covenant to be that the grantor, at and until the sealing and delivering of the deed, was well seized of the premises thereby bargained and sold, and that he had good right to bargain and sell the same, &c., and averred that the defendant, at and until the sealing and delivering- of the deed, was not well seized, &c. The defendant craved oyer of the deed, in which was the following clause, in addition to the covenant of seisin: " Furthermore I, the said Lymen Hawes, do bind myself, my heirs and assigns, firmly by these presents, to warrant and defend the above granted and bargained premises to him, the said John Cole, his heirs and assigns forever, against all claims and demands what- ever, except the lord of the soil. In witness," &c. The defendant then pleaded that at the time of the executing of the deed, one D. Penfield was seized of the premises in fee-simple, and 2O4*] was the lord of the soil *thereof ; and that, except as to the right and title of the said D. Penfield, the defendant had good right to convey, as mentioned in his deed. To this plea the plaintiff demurred, and the defendant joined in demurrer. Mr. W. W. Van Ness for the plaintiff. Mr. Spencer, contra. Per Curiam. The suit is on a covenant in a deed, that the defendant was seized of the premises, and had a right to convey. The plea states that the defendant warranted the land against all but the lord of the soil, and that as against all but the lord of the soil, he was well seized, &c. The last covenant explains the first; and in construing them, both must be taken together. NOTE. Covenants in deed, when construed together. A general warranty is limited by a special cove- nant only when the two are inconsistent or an ex- press intention appears. Alexander v. Schreiber, 10 Mo., 460 ; Rowe v. Heath, 23 Tex., 614 ; Brown v. Tomlinson, 2 Greene (la.), 525. To have a restriction annexed to one covenant effect another, the two covenants must be connect- ed. They must be of the same import and for the same object. Howellv. Richards. 11 East, 633; Smith v. Compton, 3 B. & Ad., 189; Estabrook v. Smith, 6 Gray, 572. Thus it has been held that covenant for title and covenant for right to convey are connected and tend to the same object, and limitations in one may be transferred to the other, while covenant for quiet enjoyment is for a different object. Howell v. Richards, above cited ; Cornell v. Jackson, 3Cush., 506 ; Funk v. Voneida, 11 S. & R., 109. See Bricker v. Bricker, 11 Ohio St., 240. 488 The deed itself declares that there existed, dis- tinct from the grantor, a lord of the soil. This was explicitly told to the grantee by the deed. It is not to be supposed that the defendant would, in one line, covenant absolutely that he was seized, when he admitted, and it was so- understood by both parties, that there was a lord of the soil, and when, in the next line, the defendant only warranted against all, ex- cept the lord of the soil. This exception wa& manifestly intended to apply to both covenants. The spirit of the agreement, and good sense, as well as justice, require such a construc- tion. We are, therefore, of opinion that the de- fendant is entitled to judgment. Judgment J "or ffte defendant. Cited in 19 Johns., 103 ; Deady, 380; 1 Sawy., 258. *DOLE, Sheriff of Rensselaer, [*2O5 . MOULTON ET AL. 1. Prisoner Bond of Indemnity to Sheriff Accidental Escape Immediate Return Ac- tion. 2. Covenants & Indemnity, Bonds for Penalty, Law Equity Quantum Damnifi- catus. A bond was given to the sheriff by a prisoner in execution, to remain a faithful prisoner within the liberties of the prison. The prisoner afterwards ac- cidentally walked 16 feet over the prescribed limits, which in many parts were bounded by an imaginary line, and returned immediately, without the knowl- edge of the sheriff, and before any action brought: it was held that no action could be maintained on the bond, which was given for the indemnity only of the sheriff, and this being a mere voluntary es- cape, and a voluntary return before action brought, the sheriff could not be damnified. Citations 2 Term R., 131, 132 ; Act of April 5th, 1798 (11 sess., ch. 91); Act of March 30th, 1799 (llsess.,. ch. 65); Com. Rep., 554 ; 2 Term R., 129. THIS was an action of debt, on a bond. The defendant craved oyer of the condition of the bond, which was that if Moulton, then con- fined in the jail of the County of Rensselaer, in the custody of the plaintiff, as sheriff, on a ca. sa. at the suit of Elisha White, &c., should remain a true and faithful prisoner, within the liberties of the jail, &c. They then pleaded, 1. Non estfactum. 2. That the defendant did remain a true and faithful prisoner within the liberties, &c. 3. That "on the 10th July, 1799, at Troy, in the County of Rensselaer, the said Josiah Moulton was walking within the bounds, or limits prescribed by law, for the liberties of the jail or prison, which limits, were not defined by visible objects, but in many parts terminated by an imaginary line, and being so walking within the said limits next or adjoining to the bounds of the said jail or prison, terminated by such imaginary line, as aforesaid, he the said J. M. casually and accidentally, in walking as aforesaid, crossed and went without the said prescribed limits of the said prison, the distance of six- teen feet, and no more, and thereupon, and immediately thereafter, and without any fresh or diligent pursuit, or retaking of him, the said JOHNSON'S CASES, 2. 1801 DOLE, SHERIFF OF RENSSKLAER, v. MOULTON ET 205 J. M., by the said J. Dole, he, the said J. M, voluntarily, and of his own accord, instantly returned within the liberties of the said jail or prison, and within the custody of the said sheriff, on the said en. sa. to wit, &c. ; and continually, after such return, until the day of the exhibition of the bill of the said James Dole, the said J. M. hath been and continued, and still doth remain and continue, within the liberties of the said jail or prison, for the cause 2O6*] aforesaid, *according to the tenor and effect of the said writing obligatory; and the said defendants aver that the said return of the said J. Moulton into the liberties of the said jail or prison, in manner aforesaid, was prior to any suit or action, or pretence of suit or action, sued, prosecuted or commenced against the said James, for or by reason of any escape, made or pretended to be made, by the said J. M., or for or by reason of his going out of the said liberties, in manner aforesaid, and this they are ready to verify," &c. On the first and second pleas issue was joined by the plaintiff. To the third plea there was a demurrer and joinder. Messrs. Bird and Van Vechten for the plaintiff. Messrs. Woodworth and Spencer, contra. LANSING, Ch. J., delivered the opinion of the court to the following effect: Two objections have been taken by the defendants to the validity of the bond; 1. That the penalty is more than double the amount of the bond; 2. That the condition is not con- formable to the terms of the act, because it does not contain the words, "that the pris- oner shall not, at any time or in any wise, escape or go without the limits of the liber- ties." As to the first objection, it will be seen that the penalty does not exceed double the amount of the execution, including the sheriff's fees for poundage. The act directs the bond to be taken in a penalty of double the amount of the sum for which the prisoner is confined. It does not refer to the precise sum in the exe- cution. The poundage is due from the pris- oner, as a part of the debt, and must be paid, before he is entitled to a discharge. This ap- pears to be the rule in England (2 Term Rep., 132), and is sanctioned by the usage here. But it does not lie in the mouth of the defend- 2O7*] ants to *make this objection. It is not pretended that a bond in a higher sum has been extorted from them. They must, there- fore, be considered as having acquiesced in it, and ought not now to be allowed to avoid it on that ground. The second objection is equally unten able. The condition of the bond is, in effect, the same as if it contained all the words of the act ; and if it was not, the bond ought not to be in- validated, because it omits to bind the defend- ants to the full extent which the plaintiff had a right to demand. Ifcis well enough, if it is within the act ; and if less extensive, it is a favor to the defendants, of which they have no reason to complain. Having dismissed these objections, we come to the principal question, the sufficiency of the third plea. The plea admits the liberties to JOHNSON'S CASES, 2. have been prescribed by law, and although they are, in many parts, terminated by imag- inary lines, we must conclude that they were designated as to the County Court appeared proper, and were sufficient to regulate the sheriff's conduct. The bond, then, being offered to the sheriff, it was his duty, if the sureties were sufficient, to have permitted the defendant, Moulton, to go at large within the liberties. By the Supplementary Act of the 30th March, 1799, it is declared that the sheriff may permit prisoners to go at large within the liberties, without any security taken; and when the security is procured and offered, it may be considered as obligatory on the sheriff to give the prisoner who offers it the use of the liberties of the jail. He has no other than a reasonable discretion to exercise, in regard to the competency of the security and the fit- ness of the bond. In all cases, therefore, where the security is offered, the four walls of the prison, according to the ancient law, are enlarged to the extent of the limits assigned by the statute; and the law concerning escapes must, without doubt, apply to the limits, in the same manner as *it formerly applied to the four walls [*2O& of the prison. (2 Term Rep., 131.) So that the limits are to be considered, in such case, as the prison. The bond, in this case, is for the indemnity of the sheriff only. Notwithstanding its form, or the terms in which it is expressed, this would result from the construction of the Act of the 5th April, 1798 (11 sess., ch: 91), with- out the Declaratory Act of the 30th March, 1799 (11 sess., ch. 65), which is retrospective, and affects pre-existing, as well as subsequent bonds. Viewing it as a bond of indemnity merely, it must appear that the sheriff has been damnified, in order to maintain this action. An escape without the knowledge of the sheriff, and a voluntary return without his knowledge, before suit brought, is tantamount, to a retaking on a fresh pursuit. (Com. Rep. , 554; 2 Term Rep., 129.) Here the prisoner immediately returned within the limits. His going beyond them cannot be considered as a voluntary escape on the part of the sheriff. He was authorized by law to take the bond, and indulge the prisoner with the privilege of the liberties. It was a legal act which cannot be imputed to him as a fault, nor can it justify the inference that he consented to the escape. It is, therefore, to be considered as a voluntary escape only, and the return of the prisoner before action brought, saves the condition of the bond, and is a competent defence on the part of the sheriff. Here, then, is a case in which the sheriff cannot sustain any damage from the escape, and the question results, whether he is enti- tled to recover on this bond. As the sheriff has not, and cannot be damnified by the al- leged escape, it would be absurd to say that the plea was not valid, when it discloses mat- ter sufficient to show that the plaintiff sus- tained no injury. In bonds for the perf ormance of covenants and for indemnity, the penalty is not recover- able. Courts of law *are invested with [*2OJ> 209 SUPREME COURT, STATE OF NEW YORK 1801 an equitable jurisdiction on the subject; and the true question in courts of law, as well as in courts of equity, is now a question of dam- age. Quantum diimnificatus, is the true point in issue, in all such cases; and non damnifi- catus must be a good plea to all indemnifying bonds. The plea in the present case 'is sub- stantially such a plea. We are, therefore, of opinion that the de- fendant is entitled to judgment. BENSON, J., and RADCLIFF, J., though they concurred in the judgment of the court, de- clined giving any opinion whether the sheriff was bound to grant the privilege of the liber- ties of the prison, on tender of a bond, with- out sufficient sureties, as the decision of that point was not necessary in the determination of the question, as to the validity of the plea. LEWIS, J., was absent. Judgment for the Defendant. 1 Approved 3 Johns. Cas., 75. Distinguished 4 Johns., 50. Cited in 7 Johns., 177; 8 Johns., 113; 10 Johns., 583; 13 Johns., 346 ; 6 Cow., 744 ; 7 Wend., 613 ; 73 N. Y., 303; 57 How., 113, 117; 7 W. Dig., 155 ; 2 Mason, 524. EXECUTORS of MAHANY*. FULLER. Recovery By Executors Less than Fifty Dol- lars Costs. Where executors sued in this court, and recovered less than $50, it was held that they were not entitled to recover costs, nor liable to pay costs to the de- fendant. Citation 10 sess., ch. 72. THIS was an action of assumpsit. The de- fendant pleaded non assumpsit and pay- ment, with a notice of set-off. The cause was referred, by consent, and the referees reported a balance in favor of the plaintiffs, for $8.40. Mr. Van Vechten, for the plaintiffs, now moved for full costs. Mr. Graham, contra. 21O*] *LANSING, Ch. J., delivered the opinion of the court: The statute (10 sess. ch. 72) which was ex- pressly enacted to restrain parties fron bring- ing suits in this court for the recovery of less than the sum of $250, limits the plaintiff's right to costs to the recovery of $50. In case he recovers more than $50, but less than $250, he is then entitled to such costs only as are taxed in the courts of common pleas; and if less than $50 is recovered, the defendant be- comes entitled to costs against the plaintiff, as in the case of a verdict in his favor. The plaintiffs in the present case prosecute as executors, and cannot be affected bv the provision of the act which subjects plaintiffs who recover less than $50 to the payment of 1. See Tillman v. Lansing-, 4 Johns. Rep., 45 ; Bis- el v. Kip, 5 Johns. Rep., 89; Stone v. Woods, 5 Johns., Hep., 182 ; Peters and Gedney v. Henry, 6 Johns. Rep., 121. 490 costs; for if such were^to be the construction of the act, it would involve the inconsistency of subjecting executors, who were plaintiffs, to the payment of costs, if they sustained their suit, and recovered less than $50, and wholly exempting them from costs in case of a total failure in their suit. The preamble to the statute shows the intent of the Legislature. It recites that there are courts of record in the several counties, in which suitors may obtain justice at a less ex- pense than in this court, and for that reason imposes the restraints on suits for small sums in the Supreme Court. This court has decided that executors, plaintiffs, who recover less than $25, in the courts of common pleas, are, nevertheless, en- titled to costs. That decision was founded on the consideration that the Ten Pound Act did not extend to cases of executors, and that con- sequently the statutes relative to costs, which gave costs to plaintiffs who recovered dam ages, applied. The plea of set-off does not vary the case, for the statute puts it expressly on the re- covery. As the plaintiffs would not have been liable to pay costs in case a verdict had been found for the defendant, neither ought *they to recover costs. The act ought [*2 1 1 not to be construed so as to deprive executors of the benefit of their general exemption from costs. The motion must be denied. Motion denied. Cited in 6 Cow., 613. TITFORD v. KNOTT/. 1. Evidence Handwriting Previous Knowl- \ edge Comparison. 2. Id. Other Papers Admitted Genuine Jury. 3. Id. Witness Competency. The handwriting of the maker or indprser of a note may be proved by witnesses from their previous knowledge of his handwriting 1 , derived from having 1 seen the person write, or from authentic papers re- ceived in the course of business ; but if the witness has no previous knowledge of the handwriting, he cannot be permitted to decide upon it, in court, from a comparison of hands. Whether papers signed by the party, admitted to be genuine, can be delivered to a jury to determine, by a comparison, as to the genuineness of the paper in question? Quaere. The confidential clerk of the plaintiff was ad- mitted to prove a correspondence by letters, be- tween the plaintiff and defendant, who resided in London, and to testify that from the knowledge that he had acquired from the letters of the de- fendant, received during this correspondence, he believed the indorsement in question to be the handwriting of the defendant, though the witness had never seen the defendant write. Citations Peake's N. P., 21 ; 1 Esp. Cas., 14, 15, 51, 352 ; Buller's N. P., 236. THIS was an action on the case brought by the plaintiff, as the indorsee of a promis- NOTE. Evidence, handwriting, what witnesses competent to prove. A Witness man testify positively in the first instance that he Jennies the signature, in such case it being for the apposite side to cross-examine as to his means of knowledge. Goodhue v. Bartlett, 5 McLean, 186 ; Whittierv. Gould, 8 Watts, 485; Henderson v. Bank, JOHNSON'S CASES, 2. 1801 TITFORD v. KNOTT. 211 sory note, against the defendant, as the maker, and was tried at a circuit court held in the city of New York, on the 9th day of April, 1800, before Mr. Ch. J. Lansing. The plaintiff called John Goodeve, as a wit- ness, who said that he had known the defend- ant for several years, but was not well ac- quainted with his handwriting; that he had been bail for the defendant to the sheriff, in this action, and upon that occasion he be- lieved he had seen the defendant sign his name to the bailbond which was produced by the plaintiff's counsel. The witness said that the bailbond produced was the same that had been signed by him; that he did not know that he had seen the defendant write, but he supposed he must have seen him write his name when he executed the bailbond; that lie was possessed of several pieces of writing which he believed to be the handwriting of the defendant, which he had received from him in the course of his business, and one of which he produced. It purported to be an 212*] order *for candles, and was signed with the defendant's name. The witness said he believed this to be the defendant's hand- writing, but that he had not seen him write it; that the candles had been delivered according to the order, but that he did not know that they had been paid for; that the defendant had not acknowledged to him that he had sent him such an order. Being asked whether he be- lieved the signature to the note to be the handwriting of the defendant, he answered that he could not determine, except from the writings before him; and that in his opinion, there was a similarity between them. To prove the indorsement, the plaintiff called Robert Bach, who said that he had formerly been the plaintiff's confidential clerk; that the plaintiff and the indorser (who re- sided in London) had long been correspond- ents; that in the course of the plaintiff's busi- , ness, the plaintiff had received several letters from the indorser, which, of course, came to the hands of the witness; that he had never seen the indorser write, but that from his knowledge of the indorser's handwriting, ac- quired as above mentioned, he believed the signature indorsed to be the handwriting of the indorser; that the note in question, with the indorsement thereon, was received by the plaintiff in a letter (directed to the plaintiff) from the indorser; which letter the witness himself had received and opened. The note was dated at London, the 2d day of April, 1792. It was proved by all the witnesses that the defendant was an Englishman, and had arrived at New York about five or six years ago. William Wayman, who was produced as witness on the part of the defendant, declared that he had known the defendant about eight or nine years; had seen him write several times, and had dealings with him; that he sometimes signed " T." and at other times "Thomas;" he believed himself to be com- petent to judge of the handwriting of the de- fendant; that he did not believe the signature to the note was the handwriting of the de- fendant. *Upon his cross-examination, [*213 he said he had seen the defendant write three times. John Cunningham, another witness for the defendant, testified that he had known the de- fendant about five years, had been in habits of intimacy and business with him, and had seen him write frequently, and believed him- self able to judge of the handwriting of the defendant, and that he did not believe the signature to be the handwriting of the defend- ant. It was objected by the counsel for the de- fendant that testimony from the comparison of hands was improper and inadmissible; that the evidence on the part of the plaintiff was insufficient to maintain his action, and that therefore he ought to be nonsuited. The judge, however, ruled that evidence from the comparison of hands was proper, and per- il Ala., 855. But see Slaymaker v. Wilson, 1 Penr. and W. (Pa.), 216. Opinion, what witnesses may give. Persons who have seen the party write at least once. Magee v. Osborn, 32 N. Y., 669; Hammond v. Vari- an, 54-N. Y., 398; Hideout v. Newton, 17 N. H., 71; Hopkins v. Megguire, 35 Me., 78 ; Bowman v. San- born, 25 N. H., 87; Hoitt v. Moulton, 21 N. H., 586. See Brigham v. Peters, 1 Gray, 139. Persons who never saw the party write but have a knowledge of his handwriting derived from other sources, as having had correspondence with liim, having had notes or moilgages of his which were afterwards paid, etc. Johnson v. State, 35 Ala., 370; Burnham v. Ayer, 36 N. H., 182; Page v. Horaaus, 14 Me., 478; Commonwealth v. Carey, 2 Pick., 47; Amherst Bank v. Root, 2 Met., 522 ; Southern Exp. Co. v. Thornton, 41 Miss., 216; Chaflee v. Taylor, 3 Allen, 598 ; Reyburn v. Bellotti, 10 Mo., 597 ; John- son v. Daverne, 19 Johns., 134; Wilson v. Betts,.4 Den., 201; Donoghoe v. People, 6 Park. Cr., 120; McKonkey v. Gaylord, 1 Jones (N. C.L L. 94 ; U. S. v. Simpson, 3 Pa., 437 ; Finch v. Gridley, 25 Wend., 469 ; Boyle v. Colman, 13 Barb., 42. A witness may refresh his memory by referring to writing known to be genuine ; but if afterwards he can only testify as to the genuineness of the dis- puted writing by the comparison it has been held he is incompetent. McNair v. Commonwealth, 26 Pa. St., 388; Redford v. Peggy, 6 Rand. (Va.), 316; Smith v. Walton, 8 Gill. (Md.), 77. By statute it is provided in New York that com- parison of disputed handwriting with genuine may be made by witnesses, and such writings and evi- dence may be submitted to the jury. N. Y. Rev. JOHNSON'S CASES, 2. Stat. (7th Ed.), p. 2391. This is the English statute, 17 and 18 Viet., ch. 125, sec. 27. Some other states have similar provisions, arid in some states it is the law without statute. Lyon v. Lyman, 9 Conn., 55; Woodman v. Dana, 52 Me., 9 ; Wilson v. Beauchamp, 50 Miss., 24 ; State v. Hastings, 53 N. H., 452 ; Moody v. Rowell, 17 Pick., 490. Contra, Jones v. The State, 60 Ind., 341. Houghton v. guire, 7 Gray, 177; Commonwealth v. Eastman, 1 Gush., 189; McKeone v. Barnes, 108 Mass., 344; Chandler v. Le Barron, 45 Me., 534 : Travis v. Brown, 43 Pa. St., 9. Qualified experts, who are, to what, and under what circumstances, they may testify. See Johnson v. State, 35 Ala., 370; Moody v. Rowell, 17 Pick., 490; ialth v. Gray, Shinborn, 46 N. H., 497 ; Wittiee v. Rowe, 45 Me., 571 ; Calkins v. State, 14 Ohio St., 222; Wilson v. Kirkland, 5 Hill, 182; Woodman v. Dana, 52 Me., 9; Niller v. Johnson, 27 Md., 6 ; Maye v. Herndon, 30 Miss., 110 ; State v. Clinton, 67 Mo., 380. See, generally, Putnam v. Waclley, 40 111., 346; Sweetser v. Lowell, 33 Me., 446 ; Reed v. Spaulding, 42 3S T . H., 114; Cochran v. Butterfield, 18 V H., llo; Cunningham v. Hudson River Bank, 21 Wend., 557 ; Jackson v. Van Duseii, 5 Johns., 144; Hess v. State, 5 Ohio, 5. As to handwriting of subscribing witness, when it may be proved, see note Mott v. Doughty, 1 Johns. Cas., 230 (this edition). 491 213 SUPREME COURT, STATE OP NEW YORK. 1801 mitted the counsel for the plaintiff to show to the jury papers signed by the defendant, and from them the judge of the similarity to the note. The defendant's counsel then produced fif- teen or eighteen notes of hand, some of which it was admitted, were written wholly by the defendant, others of them only signed or in- dorsed by him ; and with the consent of the plaintiff's counsel, delivered them to the jury, under an agreement that the jury should take the notes so delivered to them, the bail-bond, and order, and also the note in question with them out of court; and should from all the evidence, so produced and delivered to them, make up their verdict. The judge left it generally to the jury to determine from all the circumstances whether the signature on the note was the signature of the defendant, with directions that if they were convinced it was so, they should find for the plaintiff. The jury found a verdict for the plaintiff. A motion was made to set aside the verdict, which was argued by Mr. Munro for the plaintiff, and Mr. Troup for the defendant, who cited Stranger v. Searle (1 Esp. Rep., 2 14*] *14), Goodlittle v. Braham (4 Term Rep. , 497), and Macferson v. Thoytes (Peake's Rep. , 28). KENT, J. , delivered the opinion of the court : The question, in this case, is as to the com- petency of the proof of the handwriting of the defendant; and we are of opinion it was ad- missible. It is usual for witnesses to prove handwriting from previous knowledge of the hand, derived from having seen the person write, or from authentic papers, received in the course of business. (Peake's N. P., 21; 1 Esp. Cases, 15, 351, 352.) If the witness has no previous knowledge of the hand, he can- not then be permitted to decide it, in court, from a comparison of hands. (1 Esp. Cas. , 14.) To repel this proof, the defendant pro- duced two witnesses, who severally swore that they were acquainted with his hand- writing, and that the note in question was not signed with his hand. The defendants also produced several notes, admitted to be his, for the jury to judge, by comparison, and they were delivered to the jury by consent. This consent takes away all objection to the admissibility of the notes, and we, therefore, decline giving any opinion as to the legality of such testimony without consent. The plaintiff then proved the indorsement to the note by a confidential clerk, who testi- fied that the plaintiff and indorser (who re- sided in London) had long been correspond- ents, and that their letters came into his hands; and although he had never seen the indorser write, he believed the indorsement to be his hand, from the knowledge he had ac- quired from the correspondence. This proof was undoubtedly admissible and competent (Buller's N. P., 236), and there is no sufficient cause shown for disturbing the verdict. Rule refused. 1 Followed 18 Ind., 42. Distinguished 21 Wend., 559. Cited in 19 Johns., 136 ; 9 Cow., 112 ; 5 Hill, 183 ; 14 N. Y., 442 ; 6 Daly, 30 ; 1 Rob., 694. 1. See Peake's Law of Ev. (3d ed.), 103, 109. 492 *FISH v. WEATHERWAX. [*215 1. Practice Judgment Arrested Writ of Er- ror. 2. Id. Judgment Refilled Mandamus. Where a verdict is found for the plaintiff, and the judgment of the court below is arrested, and the plaintiff wishes to bring a writ of error, the proper course is for the plaintiff to move the court for judgment against himself, and for the defendant, for the insufficiency of the declaration, on which judgment a writ of error will lie, but not on an arrest of judgment. If the court below refuses to give such judgment, on the prayer of the party, this court will grant a mandamus to compel them to give judjrment. Citations Lutw., 124, 166, 1052, 1419, 1498. 1608; 2 Barnes, 206, 226 ; Plowd., 209 ; 2 Saund., 228 ; 2 Town., Ind., 118, 155 ; 5 Co., 32 ; 1 Mod.. 207. MR. FOOT, for the plaintiff, moved for a rule on the judges of the Court of Com- mon Pleas of the County of Rensselaer, to show cause why a mandamus should not issue, to compel them to give judgment in this cause. It appeared that a verdict had been found for the plaintiff, and that the Common Pleas had arrested the judgment for the insufficiency of the declaration. Mr. Foot said that a writ of error could not lie, and that a mandamus was the only remedv. (He cited 1 Salk., 144; Cowp., 377; 3 Burr., 1265; Stra., 113, 530.) Mr. Bird contra. BENSON, J., delivered the opinion of the court: There may be a judgment for the insuf- ficiency of the declaration or plea, as the case may be, against the party, though there may be a verdict for him. If the party for whom a verdict is found will not move for judg- ment, the other party may pray for judgment against himself ; but the entry on the record will still be as if the judgment had been on the prayer of the party for whom the judgment was found. And where a party prays to have judgment rendered against him, to the intent that he may bring a writ of error, he is entitled to have it so rendered against him, as matter of right. Where the verdict is for the plaintiff, if the defendant, instead of letting the plaintiff-take a judgment for himself, prays only that the court, omitting to render judgment, shall, as their final act in the cause, say to the parties that they may go without any further day given to them to appear again ; and if the plaintiff, when the court have declared their opinion against him, does not pray judgment against himself, the judgment, *in [*21<> such case, is said to be arrested, as distinguished from the case where it is rendered ; for, accord- ing to the ordinary, though, perhaps, improper sense of the expression, a judgment is said to be arrested when the court, by an interlocutory act, award a new trial, or repleader, or other further proceedings; and where the party for whom the verdict was given, must still so further proceed, until there shall finally be a judgment in the cause, and then, on a writ of error, he may have judgment on the verdict, if entitled to it, and the judgment of the court, in awarding the further proceedings, and of consequence the proceedings themselves, be JOHNSON'S CASES, 2. 1801 HASKINS v. SEBOR. 216 reversed. The arresting of judgment, how- ever, in the present case, is the final act of the court; and the question is, whether it is such a judgment as that a writ of error will lie upon it. In some cases, where a judgment is rendered against the plaintiff, it will be a bar to another action for the same cause, and his only remedy is by a writ of error to have the judgment re- versed; but if the remedy, where the judgment is arrested, is also by writ of error, then the law, to be consistent with itself, must make an arrest of judgment a bar to a new action, in the same cases where the rendering of judg- ment is a bar. But as the arrest of judgment is not, by law, a bar in any case, the infer- ence must be that a writ of error will not lie on it. That this is the law, is further evident from the form of the entry where the judgment is arrested, and the form of the Court of Errors. In the first case the entry is, "omitting the rendering of judgment," &c., in the latter case, the writ of error states, "that in rendering judgment, manifest error," &c. If, then, the plaintiff has no remedy by a writ of error, he must have it by a writ of mandamus; though, strictly speaking, he is not entitled to this rule, before he has prayed the court below to render judgment against 217*] *himself, for until then there is no de- fault in the judge of the inferior court; yet as this case is new, and to prevent delay, the court will grant a special rule, that if the judges of the court below shall refuse, on the prayer of the plaintiff, to render judgment against himself, and for the defendant, that then they show cause by the first day of the next term, why a mandamus should not issue to them to proceed to judgment in the cause. 1 *i. Rogers v, Maylor, Park on Ins. 499 284 SUPREME COUBT, STATE OF NEW YORK. 1801 was concluded by the adjustment. I think he was not. The insurer, in the event of a loss, as in subscribing a policy, acts wholly on the representation of the insured. He cannot be supposed to know the situation of the subject insured, or the accidents which may have at- tended it. The insured is therefore bound, in good faith, to represent the truth. If he mis- represents, it can only be done through fraud or mistake, and in either case, he ought not to be benefited by it. I think the rule is obvious and universal, that where one party is obliged to act on the representation of another, he 235*] cannot be *concluded, if that represen- tation afterwards appear to be untrue. In relation to adjustments, it has, in several cases in the English courts, been so decided. The adjustment is p)-ima facie evidence only, and may be rebutted. (Peake's Ev., 108, 109; Beawes, 308.) On this ground alone, the verdict ought to be set aside. It is unnecessary, therefore, on the present motion, to decide the other ques- tions, whether a policy on goods generally will extend to goods which are not regularly a part of the cargo, or for which no bill of lading was given, or to pronounce the effect of the warranty as stated. KENT, J. Upon the facts in this case, I am of opinion that the testimony offered ought to have been received. The plaintiff, at the time of the adjustment, did not know the whole case as it then stood. The adjustment was, consequently, founded upon mistake, or at least, the testimony offered was so material to the point that it ought to have been submitted to the jury. An adjustment is not conclusive, if the party can show that it was made on the misrepresentation of the insured, and whether the misrepresentation proceeded from mistake or design is immaterial. It is a just and sound rule that if one person proceeds upon the in- formation of another to do an act in his favor, the person in whose favor the act is done is bound, at his peril, to see that the information be correct. I am of opinion, therefore, that a new trial be granted, with costs to abide the event. LANSING, Ch. J., was of the same opinion. LEWIS, /., absent. New tried granted.* 1. Park on Ins. (6th ed.), 163, 167 ; Marshall on Ins. (2d ed.), 632, 636. SLEGHT, Administratrix of SLEGHT, [*236 t>. KANE. 1. Forfeiture and Attainder Conviction Ac- tion for Bent Accrued Before Act Not Main- tainable. 2. Rent Set-off. "Where a person was convicted by the Act of For- feiture and Attainder, passed the 23d October, 1779, of adhering: to the enemies of the State, and all his property, real and personal, declared to be for- feited, it was held that he could not, after his return to the State, in 1791, maintain an action for rent which had accrued prior to the 20th October, 1779 : nor could he set off the rent against the demand or the plaintiff, in an action against him. Citation Vattel, bk. 4, Ch. 2, sec. 21. THIS was an action of assumpsit, on a promissory note, made by the defendant to the intestate, dated the 17th December, 1777, for 100, payable on demand. The defendant pleaded: 1. Non assumpsit; 2. Non assumpsit infra sex annos; 3. Payment, with notice of a set-off against the plaintiff, for rent due to the defendant, on the 20th Oc- tober, 1779, from the intestate, for the use and occupation of a house and farm belonging to the defendant in Fishkill, from the 17th De- cember, 1777, to the 20th October, 1779. There was a replication to the second plea, and a rejoinder, to which the plaintiff de- murred. The cause was tried on the first and third issues, at the New York circuit, in De- cember, 1800, before Mr. Justice Lewis, when a verdict was found, subject to the opinion of the court on the following case, with liberty to either party to turn it into a special verdict. On the 17th December, 1777, the intestate sold and conveyed to the plaintiff in fee, a farm, consisting of fifty-nine acres, with the dwelling-house, &c., in the town of Fishkill, for 2,400, and the note in question was given in part of the consideration money. At the time of the sale it was agreed that the intes- tate should retain the possession of the farm during the war then existing between Great Britain and the United States, at a reasona- ble rent, to be paid by the intestate to the de- fendant. The defendant was a British subject, and re- sided, long before and after the Declaration of Independence, in the County of Dutchess, but left his abode on the 1st August, 1777, and re- moved to the city of New York, then in the pos- session of the British forces, where he remained *with the British until the evacuation [*237 of the city, the 25th November, 1783, when he removed with the British Army, and did not return to the United States until the 1st September, 1793. The present suit was com- menced against him the 2d August, 1794. The An adjustment made with full knowledge of all material facts is binding. Dow v. Smith, 1 Caines, 32 ; Lapayre v. Thompson, 7 La. Ann., 218. See Adams v. Saunders, 4 C. &,P., 25. So, also, if made with the means of full knowledge. Vollier v. Grif- fiths, Selw. N. P., 985. See Shepherd v. Chewter. 1 Campb., 274. It has been held that an insurer subsequent to an adjustment may set up facts in defense known to him at the time of the adjustment. See note to Shepherd v. Chewter. above cited; Herbert v. Champions, 1 Campb., 134 ; Hun n v. Hughes, 7 T. R., 350, n. 500 It is deemed the better doctrine, however, that an adjustment, free from fraud or mistake, is conclu- sive. Cases above cited. 2 Parsons Mar. Ins., 354. As to distinction between mistake of law and mis- take of fact, see Bilbie v. Lumlie, 2 East, 469 : Lowry v. Bourdieu, 2 Doug., 468 ; Reyner v. Hall, 4 Taunt, 725 ; Cabot v. Haskins, 3 Pick., 83 ; Rogers v. Maylor, above cited. It has been held that if money has been actually paid on a policy under mistake of law it cannot be recovered back, contra if paid under mistake of fact. Cases last cited. JOHNSON'S CASES, 2 1801 DOLE, SHERIFF, v. BUM, AND POKTEK. 237 plaintiff had remained in possession of the house and farm from the 17th December, 1777, to the 20th October, 1779, without paying any rent. On the 22d October, 1779, an act was passed by the Legislature of the State, "for the forfeiture and sale of the estates of per- sons who have adhered to the enemies of the State," &c., by which the defendant was, by name, ipso facto, convicted and attainted of the offence of voluntarily adhering to the ene- mies of the State, &c., and all and singular his estate, real and personal, was, on the day of passing the act, declared to be forfeited to, and vested in, the people of the State of New York. The question was, whether the rent claimed by the defendant could be set off against the plaintiff's demand? If the court should be of opinion that the set-off was legal, then there was to be a judgment for the defendant for $44.93, otherwise, a judgment for the plaintiff for $221.60, according to the verdict. Mr. Troup for the plaintiff. Mr. Ri{/g, contra. Per Ourinm. Although the note in question was given for the consideration money of the farm, the plaintiff's retaining possession of the farm, or hiring it. was not made a condition of the purchase. They were not parts of one contract, and dependent on each other, and are, therefore, to be considered as distinct transac- tions. 238*] *Choses in action may be, and were expressly confiscated by the act now in ques- tion. The plaintiff's title to the rent was, there- fore, transferred, by the forfeiture of his real and personal property, to the people. His right to the estate itself, from which the rent was to accrue, was forfeited, and became vested in the people of this State. The con- sideration for the rent, therefore, failed, and he can neither sustain an action for it, nor set it off in the present suit. The Treaty of Peace does not affect this case. As to the previous forfeitures and con- fiscation, it is only recommendatory, and by implication confirms their validity, if not re- scinded, in pursuance of that recommenda- tion. It would be sufficient if the treaty were silent; for all acts of the belligerent parties not affected by it, and as they existed at the time of concluding the treaty, were, of course, recognized as just and lawful, and remained in the same state. This rule appears to be adopted in the construction of all treaties. (Vattel, bk. 4, ch. 2, sec. 21.) The plaintiff is, therefore, entitled to re- cover. KENT," J. , having formerly been counsel in the cause, gave no opinion. LEWIS, J., absent. Judgment for the plaintiff. Cited In-22 Wend.. 420. JOHNSON'S CASES, 2. *DOLE, Sheriff, BULL AND' PORTER. 1. Bond For Jail Liberties 2. Id. Id. Per- son in Execution 3. Id. Id. Indulgence Privilege Validity. A bond taken by the sheriff, that a person in exe- cution shall remain a true and faithful prisoner, is valid. If a bond be taken by the sheriff for the ease and convenience of the prisoner, so that he may go at large within the walls of the prison, and conditioned that he shall remain a true and faithful prisoner, it is not a bond for ease and favor, nor void, though not taken in the manner directed by the act relative to jail liberties. Citations Stat. 23 Hen. VI., Ch. 10 ; 24 Sess., Ch., 28. Sec. 13 ; 5 Com. Dig., tit. Pleader, p. MS (2 W., 25) ; 1 Sid., 383; Salk., 438; 2 Keb., 422, 423; Hard., 44 ; f Saund., 161 ; Plow., 60 to 68 ; Velv., 197 ; 6 Mod., 225 ; 6 Bac., 181 ; Cro. Eliz., 66. THIS was an action of debt, on a bond for $900, dated 17th May, 1798, given to the plaintiff, as sheriff of the County of Rensselaer. The declaration was in the usual form. The defendants pleaded, 1. Non est factum; 2. Craving oyer of the bond, the condition of which was as follows: "That if the above bounden Isaac Bull, now confined in the jail or prison of the County of Rensselaer, in the custody of the sheriff aforesaid, at the suit of Edward Rawson, for the sum of $458.02, shall be and remain a true and faithful prisoner in the jail or prison aforesaid, until he shall from thence be discharged by due course of law, then this obligation to be void, otherwise to remain," &c. Which being read and heard, the said de- fendants say that the said James his said ac- tion thereof against them ought not to have or maintain, because they say that in and by a certain Act of the Legislature of the State of New York, entitled, "An Act regulating the liberties of jails," passed the 5th day of April, 1798, it is, among other things, enacted, in the words following, to wit: "That the several sheriffs of the respective counties shall permit any prisoner, who shall be in their custody on civil process only, to go at large within the limits of the respective liberties as aforesaid appointed; provided such ' prisoner shall pro- cure and offer to such sheriffs respectively, a bond with one or more sufficient sureties, in the penalty of double the amount of the sum for which such prisoner is confined, condi- tioned that such prisoner shall remain a true and faithful prisoner, and shall not, at any time, or in any wise, escape or go without the limits of said respective liberties, until dis- charged by due course of law," as by refer- ence to the said in part recited act, among other things, will fully and at large appear. *And the said defendants aver, that [*24O the said bond or writing obligatory was taken by the said James Dole, then being sheriff, by virtue of the said recited act, to wit, at the city of Albany, in the County of Albany; and that the said sum of $458.02, mentioned in the condition of the said writing obligatory, was the true sum for which the said Isaac Bull was confined in the custody of the said sheriff, and that the penalty of the said bond or writ- ing obligatory is not of double the amount of the said sum for which the said Isaac was then confined, -as by the said act is required, 501 240 SUPREME COURT, STATE OF NEW YORK. 1801 anil is, therefore, void, and of no effect, and this | they are ready to verify; wherefore they pray i judgment if the said James his said action ] thereof against them ought to have or main- tain, &c. 3. And for further plea in this be- half, according to the statute in such case made and provided, and by leave of the court for that purpose, also first had and obtained, the said defendants say that the said James his said action thereof against them ought not to have or maintain, because they say that the said bond or writing obligator}' was taken by the said James Dole, then being sheriff, by virtue and in pursuance of the directions of the said in part recited act, to wit, at the city of Albany, in the County of Albany; and the said defendants further say that the said writ- ing obligatory is not conditioned that the said Isaac Bull should not, at any time, or in any wise, escape or go without the limits of the liberties of the said goal, until discharged by due course of law, as in and by the said in part recited act is directed and required, to wit, at the city, in the county aforesaid, and this the said defendants are ready to verify; where- fore they pray judgment if the said James his said action thereof against them ought to have or maintain, &c. 4. And for further plea in this behalf , according to the statute in such case made and provided, and by leave of the court for that purpose first had and obtained, 241*] the said defendants *say that the said Isaac, on the said 17th day of May, 1798, at Troy, to wit, at the city and in the County of Albany, then being in the custody of the said James Dole, sheriff of the County of Rensse- laer, at the suit of the said Edward Rawson, for the said .sum of $ 458.02, he, the said James, then being sheriff as aforesaid, afterwards, to wit, on the day and in the year last aforesaid, at the place, in the county aforesaid, volun- tarily suffered and permitted the said Isaac Bull to escape from the said jail or prison, the said Isaac Bull not having, at any time before or since the said escape, procured or offered to the said sheriff a bond with one or more sureties, in the penalty of double the amount of the said sum of $458.02, conditioned as in and by the said in part cited act is directed and required, and this the said defendants are ready to verify; wherefore they pray judg- ment whether the said James Dole, his said action thereof against them ought to have or maintain, &c. The plaintiff replied to the second plea, that Bull was in custody on the ca. tui. at the suit of Rawson, for $4o8.02; that after being ar- rested thereon, the defendants, on the 17th May, 1798, applied to the said James Dole, then being sheriff of the county aforesaid, and then and there requested and solicited of him j that the said Isaac Bull might, for his ease and | convenience, be indulged with the liberty of j going at large within the walls of the gaol or j prison aforesaid, and not to continue and re- 1 main any longer locked up and confined within any particular part of the gaol or prison afore- said. And they, the said Isaac and John, then and there, in consideration that the said James Dole, then being sheriff as aforesaid, would grant and comply with their request aforesaid, in that respect made, offered to execute and deliver to the said James Dole, then being 502 sheriff as aforesaid, the writing obligatory aforesaid, for the purpose of indemnifying the said James for all *damages which he'[*242 might in any way be put to or sustain, by means of the said "Isaac Bull's escaping from and going at large without the walls of the said prison, in consequence of the said James Dole's granting and complying with the afore- said request of the said Isaac and John, made, as aforesaid, for the particular ease, conven- ience and benefit of the said Isaac Bull (the penalty whereof then to be forfeited to the said James, then being sheriff as aforesaid, whenever the condition of the said writing obligatory should be broken); and the said James, being sheriff, as aforesaid, afterwards, to wit, on the same 17th day of May, in the said year of our Lord 1798, at'the town and in the county aforesaid, the said Isaac so bein arrested and detained by the said sheriff, and then and there in his custody and close con- finement as aforesaid, by virtue of the arrest and writ aforesaid, in consequence of the solicitation, and at the special instance and re- quest of the said Isaac and John, made in manner and form aforesaid, for the relief, ease and convenience of the said Isaac, and in con- sideration of the said writing obligatory, hav- ing been then executed and delivered to the said James, for the purpose aforesaid, did then and there indulge the said Isaac Bull, for his ease and convenience, with the liberty of going at large within the walls of the jail or prison of the county aforesaid, agreeably to the request aforesaid, of the said Isaac and John. And the said James further saith, that in and by the aforesaid in part-recited act, it is, among other things, enacted in the words following, to wit : "That the several courts of common pleas in this State be, and they are hereby au- thorized to appoint a certain reasonable space of ground, adjacent to the several jails in their respective counties, to be denominated the liberties of the said jails, and shall cause to be entered on their respective minutes the extent of such liberties, which shall in no instance comprehend a larger space than three acres; and shall cause the same liberties *and [243 their limits to be designated by inclosures or posts or other visible marks, placed on the outer lines of the said liberties, as to them shall seem meet and proper," as by reference to the said in part-recited act, among other things, will fully and at large appear. And the said James avers that the Court of Common Pleas, held in and for the County of Rensselaer aforesaid, had not, at the time the said writing obliga- tory was executed and delivered, by the said Isaac and John, to the said James, then being sheriff as aforesaid, appointed a certain reasona- ble space of ground, adjacent to the said jail in the said County of Rensselaer, denominated the liberties of the said jail, as, by the aforesaid in part-recited act, the aforesaid Court of Com- mon Pleas was authorized to do, and that no such liberties of the said jail were appointed or assigned by the said Court of Common Pleas, by virtue of the said in part-recited act, until the next June Term of the said Court of Common Pleas, held after the said writing obligatory was executed and delivered, as aforesaid; and so the said James saith that the said bond or writing obligatory was not taken JOHNSON'S CASES, 2. 1801 BAKEWELL v. THE UNITED INSURANCE COMPANY. 243 by the said James Dole, then being sheriff as aforesaid, by virtue of the said recited act, in manner and form as the said Isaac and John have in their second plea above alleged, and this he is ready to verify; wherefore he prays judgment, and his debt aforesaid, together with his damages on account of the detaining the debt, to be adjudged to him, &c. There was a similar replication to the third plea. To the fourth plea the plaintiff replied that he did not voluntarily suffer and permit Bull to escape, &c. , and issue thereon. To the replication to the second and third pleas, there was a demurrer and joinder. Messrs. Emott and Woodworth, in support of the demurrer. Mr. Van Vechten, contra. 244*] *RADCLIFF, J., delivered the opin- ion of the court: The bond not being taken in pursuance of the act, but at common law, which is substan- tially alleged in the plaintiff's replications, and admitted by the demurrers, it is unneces- sary to consider whether there is a material variance between the form of the bond and the directions of the act. The only question is, whether it be good, for the purpose it was taken, at common law. The bond being conditioned that the defend- ant, Bull, should remain a true and faithful prisoner, is, on the face of it, undoubtedly good; but it being alleged by the plaintiff that it was taken for the ease, convenience, and benefit of the prisoner, and to indulge him to go at large within the walls of the prison, it is contended by the defendant that it is a bond for ease and favor, and therefore contrary to the statute of 23 Hen. VI. (ch. 10), which is enacted here. (24 sess., ch. 28, sec. 13.) (5 Com. Dig., tit. Pleader, p. 648 [2 W., 25]; 1 Sid., 383; Salk., 438; 2 Keb., 422; Hard., 464; 1 Saund., 161; Plow., 60 to 68.) The question is, whether the indulgence of going at large within the walls of the prison, as admitted in the replication, comes within the definition of ease and favor, intended by the act. I think it does not. It is not inconsistent with the duty of a sheriff to permit a prisoner to occupy the whole or any part of the prison. He is still, in contemplation of law, in arcta et galca custodia, while he is confined within the walls of the prison, and a bond conditioned that he shall remain a faithful prisoner, may, with as much propriety, be taken in relation to the whole, as to any part of the prison. Thus, in England, such a bond from a prison- er within the rules, which are analogous to our liberities, is held to be good. (2 Keb., 423 ; 1 Sid. , 383.) If the sheriff may grant to a prisoner the whole extent of the prison with- out such a bond, and at the same time not vio- late his duty, or incur the penalty of an es- cape, it would seem inconsistent that the bond should be void, when it would not be so if the prisoner were confined in a particular part of the jail. 245*] *A distinction is taken between bonds, conditioned to remain a faithful pris- oner, which are lawful, and bonds to save the sheriff harmless against escapes, which are JOHNSON'S CASES, 2. held to be illegal and void. The reason ap- pears to be that the former are consistent with the duty of the sheriff, safely to keep his prisoners, and the latter imply the consent of the sheriff to the prisoner's escape, on the alternative of an indemnitv for the conse- quences. (Yelv., 197; 6 Mod.* 225; 6 Bac., 181; Cro. Eliz., 66.) The general rule seems to be that a bond taken by the sheriff to induce a less rigorous imprisonment is good, if the indulgence be such as he would otherwise consistently with his duty be authorized to grant; but, if it con- fer a privilege inconsistent with his duty, by which the object of the imprisonment, as a means to compel a satisfaction of the plaint- iff's demand, may be impaired or defeated, the bond is illegal and void. It is, then, a bond for the ease and favor of the prisoner, and contrary to the statute. So a bond taken by the sheriff under color of his office, to acquire profit or emolument, is also void. The statute is directed against oppression, on the one hand, and an improper indulgence on the other. In the present case, although the replication states the bond to have been given for the ease, convenience, and benefit of the prisoner, it also states the nature of that benefit, and that it did not extend a privilege beyond the walls of that gaol. This explains the sense of the antecedent terms, and shows that the indulgence was not unlawful. We are, therefore, of opinion that the bond is good, and that the manner of pleading does not affect the construction to be given to it; and, of course, that the plaintiff ought to have judgment. LEWIS, J., not having heard the argument, gave no opinion. Judgment far the plaintiff. Distinguished i N. Y., 359. Cited in 7 Johns., 160. [*246 *BAKEWELL v. THE UNITED INSURANCE COMPANY. Marine Insurance Warranty "Free From Average Unless General." "Articles Perish- able in Their Own Nature. " A policy of insurance contained a memorandum, "that salt, &c., and all articles that are perishable in their own nature, are warranted, by the assured, free from average, unless general ; and sugar, &c., skins, hides, and tobacco, are warranted free from average, under seven per cent., unless general. A quantity of deer skins, part of the cargo, were damaged, by which a loss of ten per cent, on the cargo was occasioned. It was held, that the deer skins were not comprehended under the general words of the memorandum, as to articles perishable NOTE. Marine Insurance, construction of policy, different clauses. The various provisions of the policy must be so construed as to give effect to each and consist- ency to all. Nation F. Ins. Co. v. Crane, 16 Md., 2fiO; Syers v. Bridge, Doug., 537 ; Frichette v. Ins. Co., 3 Bosw., 190 ; Grant v. Delacour, 1 Taunt., 466. See, further, N. Y. Insurance Co. v. Thomas, 3 Johns. Cos., 1, and note in this edition. 503 246 SUPREME COURT, STATE OK NEW YORK. 1801 in their own nature, but under the clause relative to skins and hides, and that the insured were, there- fore, entitled to recover. Citation 1 Johns. Cas., 236. rpHIS was an action on a policy of insurance JL on goods from New Orleans to New York. The vessel, during the voyage, was captured and carried into New Providence, and, after having been detained 56 days, was acquitted. A large quantity of deer skins, in bundles, part of the goods insured, were found in a perishable condition, and, after a survey made, a few days before the acquittal of the vessel, it was thought necessary to sell the deer skins, in order to prevent a total loss, in case of their being reshipped; and they were accordingly .sold, by which there was a partial loss on the cargo of above ten per cent. By a memorandum at the foot of the policy, it was agreed, "that salt, grain of all kinds, Indian corn, fruits, cheese, dry fish, vegeta- bles and roots, and all articles that are perish- able in their own nature, are warranted by the assured, free from average, unless gener- al; and sugar, hemp, flax, flax seed, bread, skins, hides and tobacco, are warranted free from average, under seven per cent., unless general." A verdict was taken for the plaintiff, sub- ject to the opinion of the court, whether the deer skins were within that part of the memo- randum which warrants articles, perishable in their own nature, free from average, unless general. Mr. B. Livingston for the plaintiff. Mr. Troup for the defendant. RADCLIFF, J. If the article of deer skins be considered as perishable in its nature, and therefore comprehended in the first part of 247*] the memorandum, and uncontrolled *by the subsequent provision made in it, this case would come within the decision of Le Boy et al. v. G&uvenieur. (1 Johns. Cas., 226.) In that case, we determined that under the usual terms of the memorandum, the insurer was never liable on account of perishable articles, except for a general average, and a total loss of the commodity. But the memorandum is here restrained by the subsequent provision, by which the parties have impliedly expressed their sense on the subject. It first declares that articles perishable in their own nature, shall be free from average, unless general. It then enumerates certain other article, and among them, skins and hides; which are war- ranted free from average, under seven pel- cent., unless general. To make these provis- ions consistent, it must be understood that the parties did not consider skins and hides as in- cluded in the first description; for otherwise they would be made to say that for them the insurer should not be liable for any average, unless general; and again, should not be liable for any average under seven per cent, unless general. The latter part of the memoran- dum must therefore be construed to qualify and restrain the former. I am of opinion that there ought to be judg- ment for the plaintiff, on the verdict, as it stands. 504 KENT, J. The only question in this case is whether the deer skins are to be included in that part of the memorandum which declares that all articles, perishable in their nature, are warranted free from average, unless general. By specifying skins and hides as being subject tp a partial exemption, the contract has ex- cluded the idea that they are to be considered as goods perishable in their own nature, and subject to a more extensive exception. Any other construction would render the particular enumeration useless and absurd; and as the skins did suffer a partial loss by the *de- [248 lay arising from the capture, of above seven per cent. , the defendants are responsible for a partial loss. LANSING, Ch. J., was of the same opinion. LEWIS, J., not having heard the argument, gave no opinion. Judgment for the plaintiff. ROGET t>. THURSTON. 1 . Marine Insurance ' 'French Risks Excepted " Capture Detention Recapture. 2. De- tention Demotion. 3. Loss Total Abandon- ment Duties of Assured. Where a vessel .was insured, excepting 1 French risks, and was captured by a French privateer, and after being: detained four days, was recaptured by a British frigate, and condemned as French property; it was held that the insured could not recover. Citation 1 Johns. Cas., 395. THIS was an action on a policy of insurance on the cargo of the schooner Venelia, from New York to Port au Prince, French risks excepted. The vessel was captured the 10th July, 1798, by a French privateer, in whose possession she remained until the 14th July, when she was recaptured by a British frigate. She was libeled in the Vice-Admiralty Court of Jamai- ca, as the property of French subjects. No claim was interposed, and both vessel and ear- go were condemned as lawful prize. After the condemnation, the agent for the plaintiff, on the 2nd January, 1799, put in a claim, and entered an appeal, which was allowed. No notice of the capture, or of the loss claimed, was given by the defendant, until an abandonment was made in October, 1799, which was imme- NOTE. Marine insurance, policy, exceptions in* Abandonment. In Heebner v. Eagle Ins. Co. (10 Gray, 131), a poli- cy contained a clause exempting 1 insurers from lia- bility for breaking' machinery unless occasioned by stranding." The vessel having been injured, first by a sea peril then by stranding, it was said the burden was on the insured to show the injury done by stranding. Compare, also, Coolidge v. Ins. Co., 14 Johns., 308; Dickey v. Ins. Co., 11 Johns., 358; Wilson v. Ins. Co., 14 Johns., 227. As to abandonment, time for, see Earl v. Shaw, 1 Johns. Cas., 313; Mumford v. Church, Id., 147, and notes in this ed. See in addition to cases there ci- ted, Lawrence v. Sebor, 2 Caines, 203 ; Tom v. Smith, 3 Caines, 245 ; Mullett v. Shedden, 13 East* 304 ; Dorr v. N. E. Ins. Co., 11 Mass., 1. As to deviation, see Gilfert v. Browne, post. 296 V and note in this ed.; also Earl v. Shaw, above cited. JOHNSON'S CASES, 2. 1801 ROBERTSON AND BROWN v. THE UNITED INSURANCE COMPANY. 348 diately after receiving authenticated copies of the admiralty proceedings. It 'was agreed that if the court should be of opinion that the plaintiff was entitled to re- cover for a total loss, then a judgment should be entered against the defendant, on a cognovit 249*] actionem, for $507; ^Otherwise a judg- ment was to be entered for the defendant. Mr. B. Livingston for the defendant. Messrs. Pendleton and Hamilton contra. RADCLIFP, J,, delivered the opinion of the court: Three questions have been made in this cause ; 1st. Whether the capture by the French, was within the exception of French risks? Of this I think there can be no doubt. If we give any effect to the terms of the excep- tion, they must mean that the insurer is not to be liable for any loss by the acts of French- men. 3d. Whether by the French seizure the risks insured against were determined, and the policy discharged? By this seizure, an event within the excep- tion of French risks happened, and the casus fcederis, upon which the insurer was not to be liable, occurred. The voyage was thereby mate- rially interrupted, and the subject placed in a new situation. It cannot be said that the perils were not increased, nor that the subse- quent capture was not a consequence, or prob- ably occasioned by the first. It is not material that it should appear to be so. It is sufficient that the voyage was interrupted, and the vessel stopped, for at least four days, by an event, the risk of which was undertaken by the insured. This detention, like a deviation for that period, altered the risk, and must be con- sidered as discharging the policy. On this ground, I am of opinion the plaint- iff cannot recover. 3. The third question, as to the time of the abandonment, it would be unnecessary to touch, but it has already been decided, in the case of Earl v. Lefferts. 1 25O*] *The right of abandonment was there considered as existing for the benefit of the insured, and to be exercised at his elec- tion. In a proper case, he has the right to abandon, but is not compelled to do it. He may take the chance of the ultimate success of the voyage, but he will thereby subject him- self to the result of a total or partial loss, ac- cording to events. If the loss continues total, he may at any time abandon; but in the inter- im, he is bound to act with good faith, and take all proper measures to recover and pre- serve the property insured. If guilty of any fraud or misconduct, the loss resulting from it would be his own, and the insurer would not b^e injured. From this decision, it would follow that if the insured, in the present case had, other- wise, a right to abandon, the abandonment was not too late, while the loss continued total. 1. See Earl v. Shaw, 1 Johns. Cases, 313. JOHNSON'S CASES, 2. But on the former ground, the plaintiff ought not to recover. LEWIS, J., not having heard the argument, gave no opinion. Judgment for the defendant. Overruled 2 Johns., 89. ROBERTSON AND BROWN 0. THE UNITED INSURANCE COMPANY. 1. Marine Insurance Bottomry Interest Ex- pressly Mentioned. 2. Bottomry Bond Pe- culiar Clause. An insurance on the vessel will not cover a bot- tomry Interest, unless It is expressly mentioned in the policy. A clause of sale inserted in a bottomry bond does not destroy its character or operation. Citation 3 Burr., 1394; 8. C., 1 Black B., 405; 1 Beawes, 139. THIS was an action on a policy of insurance on the British ship John, from New York to Martinique. The ship was owned by a British subject re- siding at Martinique, and being in New York, and bound to Martinique, *the plaint- [*251 iffs furnished to the master, $10,549, for re- pairs, &c., and took a bottomry bond for the amount. The plaintiffs effected the policy for $10,000, with a view to secure that sum, as part of their advances for the vessel. The sum was not specified in the policy as on bottom- ry. During the voyage the vessel was capt- ured by the French, and the plaintiffs aban- doned to the defendants. The bottomry bond, after the usual recital and clause hypothecating the vessel for the payment of the money, contained the follow- ing clause: "And for the better performance of all the covenants and agreements herein contained, I, the said Neil Brown, for the con- sideration aforesaid, do grant, bargain, and sell the said ship John and premises to the said G. R., his executors, administrators, and assigns; " with the usual proviso that on payment of the money, interest, &c., the whole was to be void. A verdict was taken for the plaintiff, as for a total loss, subject to the opinion of the court, upon a case containing the above facts, with liberty to either party to turn it into a special verdict. It was agreed that if the court should be of opinion that the plaintiffs were entitled to recover for a total loss, judgment was to be entered on the verdict; or if entitled to a return of premium only, then judgment was to be entered for the plaintiff for $1,000; otherwise, a judgment was to be entered for the defend- ants. NOTK. Marine insurance, incurable interest, bot- tomry. Insurers of tiottitmry interest are not responsible if debt survives. They only insure against the risks which the lender assumes. Thompson v. Royal Ex. Assurance Co., 2 Maule & Selw., 30 ; Greeley v. Smith, 3 Wood. & M., 236 ; Harman v. Van Hatten, 2 Vern., 717 ; Pope v. Nickereon, 3 Story, 465 ; Thorndike v. Snord, 11 Pick., 183 ; The Elephanta, 9 Eng. L. & Eq., 553. See Kenny v. Clarkson, 1 Johns., 385. 251 SUPREME COURT, STATE OF NEW YORK. 1801 Mr. B. Livingston for the plaintiff. Messrs. Troup and Haritmn contra. RADCLIFF, J. The bill of bottomry in this instance is not wholly in the usual form. It not only pledges the ship, but, in terms, "grants, bargains, and sells" her to the plaint- iffs. This additional clause does not, however, appear to me essentially to vary its character 252*] or operation. *It must still be consid- ered as a contract of bottomry. It was made by the captain, in his capacity of master, and as such he could not sell the ship, nor do more than pledge her, for the eventual pay- ment of the money. The circumstance, that interest was reserved, at seven per cent, only, cannot alter the case. That was a matter of agreement between the parties, and might have been increased or diminished at their pleasure. Considering the contract as a bottormy only, it created a special interest, which, when in- sured, must be particularly expressed in the policy. (3 Burr., 1394; Glover v. Black, 1 Black. Rep., 405, S. C.) This has long been deter- mined to be the law and practice of merchants, and no usage appears to counteract it. The instances which have been mentioned, and which accompany this case, are too loose and uncertain to establish a different rule, and ought never to be admitted to overturn a principle so fully and clearly settled. The plaintiffs, therefore, cannot recover on the policy, but are entitled to a return of the premium, for which no risk has been run by the defendants. ' KENT, J. The question is, whether the bottomry interest was covered by the policy, as the bottomry was not specified. The case of Glover v. Black (3 Burr., 1394) is decisive upon this point. It was there held that respondentia and bottomry must be men- tioned in the policy, and that this was the law and practice of nations. The risk on a bot- tomry policy is peculiar. There is neither average nor salvage ; and capture does not mean a temporary taking merely, but one that occasions a total loss. If the nature of the interest was not disclosed, the insurer might pay for a total loss on an immediate capture, without being apprised of his rights. There cannot be any doubt as to the con- tract in question being a true bottomry con- 253*] tract. It is agreeable to *the usual form (1 Beawes, 139), except as to the additional clause of the sale; and taking contract together, and considering that it was made by the mas- ter, it is evident that the sale was only a hypothecation, or mortgage of the ship, which is the just definition of a bottomry contract. LANSING, Oh. J., was of the same opinion. LEWIS, J., not having heard the argument, gave no opinion. Judgment for the plaintiff for a return of premium. Cited in-2 Johns., 351; 7 Bos., Iftt; Blatch. & H., 89. oO GILES v. BRADLEY, Executrix, &c. Sale Agreement to hike Back Offer to Return Refusal Damages. A purchased a negro slave of B for $200, for which he gave B his bill, payable in five months; and it was agreed between the parties that if A or his wife did not like the slave, B would take him back, if he was returned any time within five months, and refund the purchase money; A offered to return the' slave within the five months, and B refused to take him, or to refund the money. A having paid the bill, brought an action against B to recover back the amount of the purchase money; and it was held that A was entitled to recover the amount, as damages for the non performance of the agreement. Citations Doug., 23 ; 1 Term R., 132, 133 ; Cowp.. 818. THIS was a special action on the case, brought to recover back the purchase money of a negro slave, sold by the defendant's testator to the plaintiff. A verdict was found for the plaintiff, subject to the opinion of the court, on the following case. On the 19th November, 1798, the plaintiff purchased of the defendant's testator a negro slave, for $200; for the payment of which sum the plaintiff executed to the defendant's testa- tor a single bill, payable in five months, with interest; and the bill was afterward paid by the plaintiff. At the time of the purchase, it was agreed between the plaintiff and the testator that if the plaintiff or his wife did not like the boy, the testator would take him back, upon his being returned at any time within five months from the time of the purchase; and that the testator would thereupon refund the purchase money to the plaintiff. *The plaintiff, [*254 not liking the boy, returned him to the testator within five months from the time of the pur- chase, assigning as a reason that the plaintiff did not like the boy; but the testator refused to receive him, or to refund the purchase money. Mr. Troup for the plaintiff. Mr. Burr, contra. RADCLIFF, J., delivered the opinion of the court: This action is well brought. There can be no doubt but that a contract may be so made as to be optional on one of the parties and obligatory on the other, or obligatory at the election of one of them. (Doug., 23; 1 Term Rep., 132, 133; Cowp., 818.) The convenience of parties, in cases like the present, may often require such terms; and there are frequent instances of such agreements being held valid in law. Considering them as valid, I can see nothing in the present case, to preclude the plaintiff from a recovery. This is not the case of a written contract. It was wholly by parol, and does not come within the rule of evidence concerning written agreements.* The single bill was no part of the contract for the purchase, but was made in pursuance of it. The purchase was necessarily antecedent, and the execution of the bill a subsequent act, and a part performance of the contract. The bill, therefore, cannot be considered as a writing, which contained the agreement for JOHNSON'S CASES, 2. 1801 RUSH V. COBBKTT. 254 the purchase. In the case of Weaton v. Downe* (Doug., 23), on a similar contract, for the purchase of a pair of horses, the money was actually paid at the time of the purchase, and yet the payment was not considered to affect the plaintiff's right to recover on the agree- ment. The bill, in the present case, was but a security for the payment, and certainly cannot have a greater effect than the payment itself. 2>5*] If the money *had also been paid, I think it might as well be said that the receipt for the payment contained the agreement for the purchase, and should conclude the plaintiff, as that the bill should now con- clude him. It would be equally entitled to be considered as the written evidence of the contract. The subsequent payment of the bill, con- nected with the circumstance that the period of five months, at the expiration of which it was made payable, was the same within which the negro was to be returned, might afford the presumption, that the plaintiff had thereby made his election, and determined the contract. But in answer to this, it is expressly stated that the testator agreed that the money should be refunded on the return of the negro. The agreement to refund controls the presumption, and shows that a payment was contemplated as optional in the plaintiff, before the expira- tion of the five months, which must, of course, have been intended to be without prejudice to his right of returning the negro. It has been objected that as the plaintiff could not, on the ground now taken, have made a defense to an action on the bill, he cannot be permitted, in another action, to re- cover back the consideration money for which it was given. The principle of this objection, if applicable to the case, is founded on the idea that the present action is brought to re- cover back the precise and identical sum for which the bill was given. This I apprehend to be altogether a mistake. The object of this action is to obtain damages for the non- performance of the agreement on which it is founded; and those damages may vary, accord- ing to the circumstances of the case. They may be more or less than the amount of the bill, and are not controlled or regulated by it. It is not, therefore, the case of a party seeking to recover back money which he was legally bound to pay, and which, in a former action, lie could not resist. The plaintiff's right is consistent with the payment or recovery 256*] *of the bill. In their nature, they are different demands, and may be essentially different in amount. I can, therefore, see no ground, on which this action ought to be denied. Indeed, it ap- pears to me new and extraordinary that a single act (like the present bill), done in pursuance of a contract, should be set up to destroy all the terms of that contract. If the title to this negro had failed, or if his age or any other circum- stances were materially different from what was represented and warranted by the tes- tator, as well might it be pretended that this bill would retrospect, and defeat all the previous agreements between the parties. I cannot believe it to possess this destruc- tive quality, or ascribe to it such important effects. JOHNSON'S CASES, 2. We are of opinion that the plaintiff is entitled to judgment. Judgment for tfte plaintiff. Cited in 3 Johns. Cas.,82;40N. Y., 489; 67 X. Y., 73: 6 Barb., 181. RUSH v. COBBETT. Foreign Judgment Action on Plea Nil De- bet and Payment Proof Record. In an action of debt on a judgment in the Su- preme Court of Pennsylvania, the defendant pleaded nil debet and payment. It was held that the plaint- iff was bound to produce and prove the record of the judgment, or an exemplification thereof. Citation IT. S. Court, art. 4; Act of May 26th, 1790; Laws of U. S., vol. 1, p. 115. THIS was an action of debt on a judgment of the Supreme Court of the State of Pennsylvania. The defendant pleaded nildebet and payment. The cause was tried before Mr. Justice Lewis, at the New York Circuit, the 27th November, 1800. At the trial, the counsel for the plaintiff contended that he was not bound to produce the record of the judgment of the court in Pennsylvania; that the pleas of nil debet and payment admitted the record to be as it had been declared on by the plaintiff, and it was only necessary for him to have the damages assessed by the jury. The defendant's counsel insisted that it *was incumbent on the [*257 plaintiff to produce the record, or an exempli- fication of it. The judge decided that the pleas of nil debet and payment admitted the record as declared upon; and that the plaintiff was not, therefore, bound to produce it; and the jury, under his direction, found a verdict for the plaintiff. A motion was made to set aside the verdict, and for a new trial, for the misdirection of the judge. Messrs. Pendleton and Riggs for the defend- ant. Mr. B. Livingston, contra. RADCLIFP, J., delivered the opinion of the court : The question is, whether, under the plea of nil debet, the record of the judgment in Penn- sylvania ought to have been proved. 1. If the plea of nil debet had any effect or operation, I think it was incumbent on the plaintiff to prove the record. It is the general issue, which admits nothing, and is a total and general denial of the plaintiff's right of action. 2. The question whether the plea was proper, arises on the face of the record, and, if improper, it ought to have been answered by demurrer, or not to have been answered at all, and treated as a nullity. By taking issue upon it, the plaintiff has treated it as a regular and competent plea. Having done this, he cannot afterwards consider it as a nullity, and, on that ground, dispense with proof which would otherwise be required. It is unneces- sary here to determine whether nil debet, or nut Uel record, is the proper plea to an action 507 257 SUPREME COURT, STATK OF NEW YORK. 1801 of debt on a judgment given in another state. 1 155 8* J This would *demand a consideration of the Constitution of the United States and the Act of Congress (4th article of the Con- stitution, and Act of the 26th May, 1790, Laws of the United States, Vol. I., p. 115), re- lating to the mode of proof, and the effect of such judgment, which present a question of considerable moment. We think it sufficient, to decide the present case, that the plaintiff has admitted the propriety of the plea of nil debet, by joining issue upon it,* and that the ques- tion on its merits cannot thus be regularly decided. New trial granted. Revlewed-26 N. Y., 272. Cited in 2 Johns., 183; 8 Johns., 83. WARDELL t. EDEN. 1. Judgment Assignment Satisfaction there- after Vacated. 2. Practice Usury Plead- ing Trial Feigned Issue Collusion. 8. Id. Feigned Issue Application Discretion of Court When Awarded Audita Querela Stay of Execution Scire Facias. Where the plaintiff, after he had assigned a judg- ment to a third person, and given notice to the de- fendant of such assignment, entered up satisfaction on the record ; it was held that the entry of the sat- isfaction was fraudulent and void, and it was ordered to be vacated. The proper way to try the truth of the allegation of usury, in regard to a judgment, entered upon a bond and warrant of attorney, is to retain the judg- ment, and award a feigned issue to try the f act ; but where the judgment nad been assigned to a oona fide purchaser, and notice thereof given to the defendant, the court refused to award an issue, con- sidering a judgment as not within the words of the statute against usury, and having reason to suspect a collusion between the plaintiff and the defendant, to defeat the claims of the assignee of the judg- ment. An application for a feigned issue is to the sound discretion of the court; and it is awarded only for the information of the court, or where the party is, otherwise, without relief ; and where the defendant alleged payment to the plaintiff, made by him, on a judgment which had been assumed to a third person, the court, on motion for that purpose, refused to award an issue to try the truth and validity of the payment ; but left the party to his remedy by audita querela, as the time when the de- fendant received notice of the assignment was con- tested ; though the court might, if they had thought proper, have stayed execution on the judgment, until it was revived bv scire facias, or by an action of debt, when the plaintiff might plead the pay- ments. Citations 1 Term R., 819 ; 4 Term R., 340 ; 1 Bos. & Pull., 447 ; 1 Johns. Cas., 411 ; Barnes* Cases, 52, 277; Cowp., 737; 1 Bos. & Pull., 270; 1 Wils., 331; Sayer, 253; Barnes, 130; Cowp., 727; 1 Ld. Rayin., 430, 445 ; 1 Salk., 264. MR. HARISON, in behalf of the Bank of New York, assignees of the judgment in this cause, at the last term, moved that the 1. In the case of Post and La Rue v. Neafle, which was an action of debt on a decree of the Court of Chancery in New Jersey, the defendant pleaded tml tiel record ; and the court (in January Term, 1803) decided that the plea was improper, and ordered a repleader. (MS.) See 1 Caines, 460, 482; 3 Caines, 22, 36; 1 Dall, 188; 2 Dall, 302; Kir. Rep., 119; 1 Wms. Mass., Rep., 401 ; 3 Term Rep., 733. 2. See Meyer v. McClean, 2 Johns. Rep., 183. 508 rule for vacating the satisfaction entered in this cause, which was granted de bene esse, in October Term, 1800 (see ante, p. 121), should be made absolute, or that an issue be directed to try the truth of *the facts on which [*J259 the application was founded. The facts are sufficiently stated in the opinion of the court. Mr. Hamilton also argued in support of the motion. Messrs. Burr, Spencer, Van Vechten, and Wortman, contra. Cur. ad. tult. KENT, J., now delivered the opinion of the court: The material facts in this case are these: A bond, with a warrant of attorney to confess judgment for the sum of $50,000, was exe- cuted by the defendant to the plaintiff, on the 20th of June last. Judgment was confessed thereon, and docketed on the 8th July, with a cessat executio for six months. The judgment was assigned by the plaintiff, for a valuable consideration, to Nathaniel Olcott on the 27th of July, and by him to William Roe on the 1st of August. Considerable payments were made by the defendant to the plaintiff in the month of August. On the 6th of October, the plaintiff and defendant settled, and the ultimate payment, being a balance of $1,500, was made. The judgment was assigned by Roe to the Bank of New York on the 7th of October. The bank gave notice thereof to the defendant on the 9th of October. Satisfaction was acknowledged by the plaintiff on the 10th, and entered of record on the llth October. It is alleged, on the part of the bank, that the defendant had notice at the time of the assign- ment to Olcott, but this notice is denied on the part of the defendant. Upon these facts, a motion is made in behalf of the bank that the tacatur of the satisfaction, which was ordered at the last October Term, de bene esse, be made absolute; a counter mo- tion is made by the defendant that the judg- ment be set aside, or that an issue be awarded to try the truth of the allegation that the bond *was usurious, or, at least, to try the [*26O validity of the payments made by the defend- ant to the plaintiff, subsequent to the assign- ment to Olcott. 1. With respect to the first motion, I am of opinion that the vacatur of satisfaction ought to be made absolute. The assignee of the judgment is to be recognized by this court as the owner, and all acts of the plaintiff subse- quent to the assignment, and affecting the validity of the judgment, were fraudulent. He has no more power over the judgment than a stranger. But until the defendant ban notice of the assignment, all payments made by him, and all acts of the plaintiff in respect to him, are good. (See 1 Term Rep., 619; 4 Term Rep., 340; 1 Bos. & Pull., 447; and Andrews and Beeker [See 1 Johns., Cas., 411], July Term, 1800.) In this case, however, the satisfaction was acknowledged and entered after the defendant had notice, and that act is, therefore, void in respect to him, as well as to the purchaser of the judgment. It is proper that the satisfac- tion should be done away without any terms JOHNSON'S CASES, 2. 1801 MURRAY ET AL. v. THE UNITED INSURANCE COMPANY. being imposed, as a condition of the vacatur, because, in judgment of law, it was an act done in fraud, and against right. 2. The motion on the part of the defendant is to be considered first in respect to the alle- gation of usury. If that charge is now to be investigated, yet the judgment ought to stand, in order to preserve the lien that it has created upon the land; and the authorities are clear and decisive that the proper way to try the question of usury against a judgment entered by confession, is to retain the judgment and award a feigned issue. (Barnes' Cases, 52, 277; Cowp., 737; 1 Bos. & Pull., 270.) But I think the court ought not to aid the plea of usury, under the special circumstances of this case* A bonafide purchaser is here the owner of the judgment, and although a bond, or note, if usurious, may be void in the hands of a bona fide purchaser, because the statute 261*] *makes the instrument itself void, yet the case is varied in respect to a judgment which is not within the words of the act. There are also reasons in this case to sus- pect that this charge of usury is an after- thought, and that there is a collusion between the plaintiff and defendant to defeat the claims of the bank. The parties carried on negotia- tions and effected payments from time to time, between the first assignment of the judgment and the 6th of October, the one knowing that the judgment was transferred, and therefore acting fraudulently, and the other acting under circumstances that ought to have put him upon inquiry; and, finally, after direct notice to the defendant, they concur in having satisfaction entered to consummate their transactions, and after failing in their efforts, at the last October Term, to render the satis- faction valid, they now unite in setting up this new impediment to the claims of the assignee. Under these circumstances, I think the court ought not to interfere and help the defence. 3. The next object of the application, on the part of the defendants, is for an issue to try the truth and validity of the payments made by the defendant; and this will depend upon the time at which the defendant is to be considered as having notice of the assignment of the judgment. The application for a feigned issue is an ap- plication to the sound discretion of the court. These issues appear, from the cases which I have examined (1 Wils., 331; Sayer, 253; Barnes, 130; Cowp., 727), to have been grant- ed only for the information of the court, or where the party was otherwise without relief. In the present case the party has a competent remedy, as a matter of right. This is by the writ of audita querela, which lies where some matter of discharge has arisen for the defend- ant, subsequent to the judgment. It is true that in many cases where the defendant might 262*] be entitled to his *writ of audita querela, the court will relieve, in a summary way, upon motion. But, as Lord Holt observed (1 Ld. Raym., 439, 445; 1 Salk., 264), if the ground of the application be a release, or other matter of fact, it is reasonable to put the party to his audita querela, because the plaint- iff may deny it; and if he deny it, the court will not relieve upon motion. In the present case, the period of the notice, and, consequent- JOHNSON'S CASES, 2. ly, the validity, as well as truth of the pay- ments, is contested between the parties, and it is proper that these questions should be left to the ordinary mode established for the trial of facts. It is in the power of the court to stay execu- tion upon the judgment, until the same be re- vived by scire facias, or by an action of debt, when the defendant would have an oppor- tunity of pleading the payments. But I see no sufficient reason why the court should act at all in this case, more than in any other, so long as the party has the power to act for him- self, and the law has furnished him with ade- quate means of relief. We are therefore of opinion that the mo- tion on the part of the assignees of the judg- ment be granted, and that the motion on the part of the defendant be denied. Rule accordingly. Cited In 17 Wend., 635 ; 6 Hill, 239 ; 5 Johns. Ch., 141; 21 Barb., 435; 13 How., 27; 47 How., 444; 7 Abb., 316; 1 Bos. & Pull., 665; 40 New Jersey Law, 99; 6 Peters, 657 ; 3 Wood. & M., 99 ; 3 Id., 38o. *MURRAY ET AL. [*263 V. THE UNITED INSURANCE COMPANY. 1. Marine Insurance Capture By a Friend Neutral Port Abandonment. 2. Id. Id. Evidence Total TJOSS Restoi'alion Knowl- edge of Presumption. A capture by a friend, or the carrying 1 into port of a neutral, by a belligerent, for adjudication, as contradistinguished from a capture by an enemy, is equally a ground of abandonment by the insured. Such a capture is prtma facie evidence of a total loss, and the insured may abandon immediately on receiving intelligence of such capture; and though the vessel may have been restored at the time of the abandonment, yet if the insured had no knowledge of the fact at the time, it will not affect his right to recover ; but a knowledge of the restoration may be presumed, from the lapse of time and distance between the places, in reference to the ordinary course of intelligence. Citations 1 Johns. Cos., 147, 151; 1 Johns. Cas., 151 ; 2 Burr., 696 ; Park., 79 ; Le Guidon, ch. 7, sec. 1 ; Valin., torn. 2, 76, 127, 134 ; 1 Emerigon, 460 ; 1 Johns. Cas., 14; 2 Valin., 94. THIS was an action on a policy of insurance on the cargo of the brig Essex. The ves- sel was captured upon the voyage insured, which was from Charleston to Surinam, and was carried into Demerara by a British frig- ate, where she arrived on the 8th of June, and continued with her cargo, in the hands of the captors, until the 18th of June, when the brig and cargo were released, without having been libeled. The master of the brig was consignee of the cargo, and after the release he continued at Demerara, instead of pursuing his voyage to Surinam, until the 2d of September. " On the 3d of August the plaintiffs, knowing of the capture, but not of the release, abandoned to NOTE. As to abandonment, what determines right to abandon, see note to Mumford v. Church, 1 Johns. Cas., 147 (this ed.). 509 SUPREME COURT, STATE OF NEW YORK. 1801 the defendants. The property insured was Hamburg property. The brig did not belong to, but was hired "by, the plaintiffs. Messrs. B. Livingston and Burr for the plaintiffs. Messrs. Hamilton and Troup for the defend- ants. KENT, J. Two cases have been decided in this court, which are applicable to the present. The case of Mumford v. Church, 1 and the case of Slocum & Burling v. The United Insurance Company, in October Term, 1799. Those cases determined these points: 1. That a tak- ing and carrying into port of neutral property, by a belligerent vessel, authorized an aban- donment. 2. That although restoration was made before, yet if not known until after the abandonment, it did not defeat the aban- 26-!:*] *donment, as parties could only act from the state of things as known to them. But the effect of a capture made by a friend, as contradistinguished from one made by an enemy, was not raised as a question in those cases, but it seemed to be taken for granted that the capture, in either instance, was the same in respect to the right Of the insured. I consider it as well understood and settled that a capture by a friend is one of the perils insured against. The words of the policy are sufficiently extensive, and parties must be gov- erned by the usual and established meaning of the words unless some law or usage be pro- duced to restrain their operation. In Goss v. Wither* (2 Burr., 696), it was held that the in- sured might abandon in case of an arrest, or an embargo, by a prince not an enemy ; and in StiUmcd v. Johnson, reported in Park, 79, the court held the insurer responsible for a capt- ure by a friend. The same construction is given to the policy by the foreign treatises and writers. (Le Guidon, ch. 7, sec. 1; Valin, torn. 2, 76, 127, 134.) The words "capture and detention of princes" apply not only to takings by enemies or pirates, but to those made by friends or allies; in one word, to all captures, just or unjust, made by hostility, piracy, or otherwise. The next point is, whether the loss justified the abandonment. The general rule is that the insured has a right to abandon immediately upon hearing of a detention, and his claim to indemnity is not suspended by the chance of a future recovery, because, by the abandonment, that chance devolves upon the insurer. This rule applies to all cases of foreign detention, whether that detention arise from necessity or in conse- quence of an embargo, or for the purpose of a judicial inquiry. In either case the voyage is equally interrupted, and involved in similar uncertainty. Carrying into port denotes strong suspicion ; it is good ground to calculate on a I2($5*] serious litigation, *and it is prima facie evidence of total loss. In such cases the En- glish law does not require a delay, in imitation of some foreign rules. The activity of trade rather demands decision and certainty, and that the capital and business of the merchant should not be kept in suspense. 1. See 1 Johns. Cas., 147, 151. &10 Are there any circumstances to exempt this case from the operation of the rule? Here was not any warranty, or representation, as to the ownership of the property, and in that, case the risk of the property, whether it be neutral or enemy's property, is to be borne by the insurer. This is the sense and understand- ing of the contract with us ; and the omission of a warranty or representation leads to the conclusion that the property may not be neutral, and the insurer takes upon himself the risk of loss by capture, be the property whose it may. The practice we have gone into of warranting, or representing the prop- erty to be neutral, can have no rational solu- tion but upon this construction; and the same construction prevails in the French law. (1 Emerigon, 460.) And although I think the more natural conclusion would have been that every person making insurance was to be pre- sumed, even without any warranty, to be the owner of the property insured, unless it was otherwise disclosed and declared; yet the pre- vailing sense is rather conformable to the language of the policy. The words are, that the insured, " as well in his own name as for and in the name of every person to whom the same doth appertain, in part or in all, maketh assurance;" and it was formerly the practice in England, until prevented by statute, in the year 1785, to effect policies in blank, without specifying the names of the persons for whose use the insurance was made. In the present case, then, there could be no good reason for delay. If the property was condemned as enemy's property, the insurer would still have been responsible, *and [*266 there was no reason arising from the pendency of a judicial inquiry why the abandonment should not have been made as soon as intelli- gence of the capture and carrying into port had been received. I say carrying into port, for I consider that act so decisive of an inter- ruption of the voyage, and of uncertainty as to the result, that the insured is then author- ized to abandon. Whether the insured, in cases of warranty, or representation of neu- trality, would be obliged to wait the event of the capture and judicial inquiry before he abandons, I give no opinion, because such a case is not before the court. With respect to the act of the consignee, which was noticed upon the argument, I do not consider it as making any alteration in the rights of the plaintiff. It was held, in the case of Gardiner et al. v. Smith 3 (July Term, 1799), that after a total loss, the consignee be- comes the agent of the insurer, and his acts inure to the benefit of the insurer, to whom he is amenable for any inakijides in the execution of his trust. No question was made upon the argument, as to the time of the abandonment. The no- tice of it was given upwards of six weeks after the restoration of the vessel, but without knowledge of such restoration. It may be- come a question whether, after a reasonable time, the assured ought not to be charged with the knowledge of the restoration. Because of the difficulty of bringing home to the party, in many instances, the knowledge of the fact ! 2. 1 Johns. Cue., 14. JOHNSON'S CASES, 2. 1801 JACKSON, EX DEM. ST. CKOIX, v. SANDS ET AL. that the French ordinance of marine, article 89 (2 Valin, 94), has fixed a precise standard to ascertain the circulation of intelligence, by an arbitrary ratio between the distance and the time. We have no such rule ; and the pre- sumption with us must depend upon the time and distance between the places in question, in reference to the ordinary channels, and the ordinary despatch of intelligence. 267*] *If, however, the presumption would otherwise have arisen against the assured, yet in the present case the fact being found that he had no knowledge of the release of the vessel, it repels all such presumption. Upon every view of this case, I am of opinion that judgment ought to be for the defendant. LEWIS, J., was of the same opinion. LANSING, Ch. J. , and RADCUFF, J. , not hav- ing heard the argument, gave no opinion. Judgment for tfw plaintiffs. 1 Cited in 2 Johns., 163; 10 Johns., 83. JACKSON, ex. dem. ST. CROIX, SANDS ET AL. Attainder Act of October, 1779 Conviction under Incomplete Description Parol Proof. Where a person, whose real name was Joshua Temple De St. Croix, was convicted and attainted under the Act of the 22d October, 1779, by the name of Joshua De St. Croix, it was held that the pro- ceedings under the act were to be governed by the rules in cases of attainder, and not by the ordinary course of judicial proceedings ; that the conviction in the present case contained an imperfect or in- complete description of the person, which might be supplied and explained by parol proof; and that the identity of the person was a matter of fact, to be ascertained by a jury ; aliter, if the description of the person be false, or repugnant to the truth. Citations Foster, 80, 89; 1 P. Wms., 613; 2 Wooddes., 625, 628 ; Foster, 79, 81, 87. was an action of ejectment. It was 1 proved at the trial that the lessor of the plaintiff by the name of Joshua Temple De St. Croix, was seized and possessed of the prem- ises in question, from the year 1766 to 1782, having purchased the property in 1766. The defendants gave in evidence a record of the conviction of Joshua De St. Croix, dated 268*] the 15th July, *1783, by which it ap- 1 The same questions as to capture and abandon- ment have since arisen in several courts of the United States, and have been decided in the same manner. See Duthill v. Gatliff, in the Supreme Court of Pennsylvania, 1806, Dallas, 446; Rhine- lander v. The Insurance Company of Pennsylvania, in the Supreme Court of the United States, 1807, 4 Cranch, 29, 46 ; Lee v. Boardman, in the Supreme Court of Massachusetts, 1807, 3 Tyng's Mass. Rep., 238. See also 4 Tyng's Mass. Rep., 221. But see Bainbridge v. Neilson, 10 East, 329 ; Church v. Be- dient et al., and Peyton v. Hallett, 1 Caines's Cases in Error, 21, 28. NOTE. As to error in middle name, see Keene v. Meade, 3 Peters, 1, and note in L. C. P. Co. ed. JOHNSON'S CASES, 2. peared that he had been indicted and attainted under the Act of the 22d October, 1779, called the Act of Attainder, of adhering to the enemies of the State, and his estate, real and personal, was declared to be forfeited to the people of the State. The defendants also gave in evidence a deed to them from the commis- sioners of forfeitures, dated the eighteenth May, 1786, for the premises in question, which stated that they had been "forfeited to the people of the State of New York, by the con- viction of Joshua T. De St. Croix, late of," &c. The lessor's name of baptism was proved to be Joshua Temple. The defendants offered to prove that the lessor was known and called by the name of Joshua De St. Croix, as well as by the name of Joshua Temple De St. Croix. The evi- dence was objected to, but the objection was overruled by the judge. Several witnesses testified that they knew the lessor; that he was generally called Joshua De St. C'roix, sometimes Captain St. Croix, or Mr. St. Croix. The judge left it to the jury to determine on the evidence whether the lessor of the plaintiff, Joshua De St. Croix, mentioned in the record of conviction, and Joshua T. De St. Croix, named in the deed to the defend- ants, were not one and the same person ; and he directed the jury, if they believed them to be one and the same, to find a verdict for the defendants; reserving for the opinion of the court, the question as to the admissibility of the evidence, and its sufficiency to support the verdict. The jury found a verdict for the defendants. A motion was made to set aside the verdict, and for a new trial. Mr. Riggs for the plaintiff. Mr. Troup, contra. *RADCLIFF, J. In the record of the [*26O conviction, the lessor is called Joshua De St. Criox. It is proved on the part of the plaintiff that his real name of baptism is Joshua Tem- ple De St. Croix, and it is, therefore, insisted that he cannot legally be intended to be the person convicted. The defendants offered proof that he was known by the one name as well as the other ; which was objected to by the plaintiff but admitted by the judge. The lessor, in the commissioners' deed, is named Joshua T. De St. Croix, and the deed is, therefore, contended to be at variance with the record of the conviction, and not to be considered as founded on it. But if the vari- ance in the record were fatal, it certainly ought not to be held so in the deed, which is a matter in pais, and therefore not subject to the strict rules of legal proceedings. It there appears not as evidence of the person con- victed, but as part of the description of the premises intended to be conveyed. This intent, if rendered doubtful or obscure, by a defect or error of description, may be explained and illustrated by proof. The question, therefore, turns on the variance in the record itself. The act under which the conviction was had, attainted a number of per- sons by name, and directed a new mode of oil 269 SUPREME COURT, STATE OF NEW YORK. 1801 proceeding to convict and attaint others for adhering to the enemies of the State. By this proceeding a notice of the indictment was to be published by the sheriff, and if the person indicted did not appear, he was of course con- victed, and adjudged to suffer the forfeiture of all his property. In this manner the lessor of the plaintiff was convicted, and his property confiscated and sold by the commissioners, under whom the defendants claim. No doubt, every attainder by statute, is a high and rigorous act of sovereignty, and can only be defended by the great objects of public safety or national policy. But although high- ly pe'nal, these, like other legislative acts, are to be construed according to their true intent. 27O*] The legislature in this, as in other eases, are not bound by the forms and descrip- tions of legal proceedings. In bills of attain- der, therefore, it is held that great strictness in the name of the person is not necessary. It is sufficient if the person intended be otherwise well described. The rule, in such cases, is that an incomplete description may be aided by proof, but a false or repugnant description cannot. Thus, in the case reported by Foster (Fost., 80, 89 ; 1 P. Wms., 612: 2 Wooddes., 628), the attainder of Alexander Lord Forbes, of Pitsligo, by the name of Alexander Lord Pitsligo, was deemed to be an incomplete, but not a false description, and therefore held to be sufficient. The act now in question, so far as it attaints the several persons named in it, is similar to bills of attainder in England, except that its operation is more rigorous, and it does not allow the party to surrender. In other re- spects, it is an act sui generis, and I believe without precedent. Instead of repeating at- tainders by statute, the Legislature provided a substitute, by directing a general mode of pro- ceeding against others for the offence of adher- ing to the enemies of the State. This substi- tute was evidently intended to have all the effect of statute attainders, and the proceeding under it, I think, ought to receive the same construction. They cannot be placed on the footing of ordinary process at common law; for they are professedly a departure from it, and ought, therefore, not to be tested by its rules. The act introduced a new system which was, generally, directed against all persons, and marked with circumstances of as great rigor as immediate attainders by legislative acts. It was intended to be equally conclusive and extensive in its operation; for it denied the privilege of a writ of error, and even justified the conviction of persons not in esse, who had been guilty of the offence described in it. These strong measures do not admit of the application of ordinary principles and rules, and indicate a different intent. They can only be resolved into the exercise of 271*] Uncontrolled authority, and be jus- tified only in cases of great public necessity. The intent of the Legislature, I think, evident- ly was that the persons so convicted should to every purpose be deemed to be attainted, as if they had been named in the act; we are, there- fore, bound to give this conviction the same effect. This construction is also strongly enforced by the expediency of securing to purchasers the titles fairly acquired under the forfeitures, 512 consequent on such convictions. These for- feitures, and all proceedings under them have long been finished and executed, and it would be dangerous to suffer them lightly to be called in question. The safety of a numer- ous class of our citizens, and, indeed, the peace of the community, requires that they should be at rest. On the whole, I am of opinion that it was properly submitted to the jury to determine whether Joshua Temple De St. Croix, and Joshua De St. Croix, named in the conviction, and Joshua T. De St. Croix, named in the deed of the commissioners, was one and the same person; and that identity of the person was the only thing necessary to be shown. KENT, J. In this case, the lessor of the plaintiff, whose name is Joshua Temple De St. Croix, was indicted and attainted under the Act of the 22d October, 1779, commonly called the Act of Attainder, for adhering to the enemies of this State, by the name of Joshua De St. Croix, and his estate was sold, in pur- suance of the attainder. The question now is, whether he is precluded from recovering that estate? In bills of attainder, great strictness in the name of the person attainted is not requisite ; a misnomer, if it be repugnant to truth, as attainting a person by the name of Thomas, when his true name is Alexander, is fatal. (1 P. AVms., 612; Foster, 81; 2 Wooddes., 628.) But an incomplete *description of the [*272 person, as attainting one by the name 01 Alex- ander Lord Pitsligo, when his name is Alex- ander Lord Forbes of Pitsligo, is not fatal, be- cause that description, as the judges observed, in the case reported by Foster, 79, 87, though incomplete in point of form, is not repugnant to truth, and the identity of the person is a mere matter of fact, to be tried in a collateral issue. Bills of attainder have always been con- strued, in this respect, with more latitude than ordinary judicial proceedings, for the purpose of giving them more certain effect, and that the intent of the Legislature may prevail. They are extraordinary acts of sov- ereignty, founded on public policy (Foster, 83, 84), and the peace of the community and the quiet of estates, require that purchases held under them should not be shaken. There can be no doubt but that the rule which has been suggested is the settled rule of interpretation in respect to them. The point, then, for consideration is, whether the conviction, in the present case, is to be tested by the rules applicable to bills of at- tainder, or by those applicable to the ordinary course of judicial proceeding. From a review of the Act of Attainder, I am inclined to think that the convictions under it are to be considered as analogous to express convictions by bill of attainder, and to require the like construction. The act was made for the express purpose of working a forfeiture of the estates of the persons who had adhered to the enemies of this State. This appears by its title, by its preamble, and by the strong and summary proceedings which it dictates. A number of persons are, in the first instance, attainted by name, and their estates declared to be forfeited. JOHNSON'S CASES, 2. 1801 JOHNSTON v. HEDDEN. 272 And then to the end that other offenders may be convicted and attainted, for the like purpose of forfeiture of their estates, it declares it to be lawful for the grand jury of any county to prefer bills of, indictment against any person, 273*] whether he be then in full *life or de- ceased, who had adhered to the enemies of this State, and owned any real or personal estate within this State. The sheriff of such county was then, upon the indictment being found, to give notice thereof, in one of the public papers of this State, for four weeks, and therein to call upon the person indicted to appear and -answer, and upon his default (and it was de- clared to be immaterial whether he was then in full life or deceased), judgment was to be awarded against him, and his estate forfeited. It was in pursuance of a proceeding of this kind, founded upon this act, that the lessor of the plaintiff was convicted by the name of Joshua De St. Croix, and the premises in ques- tion sold. This proceeding resembles a conviction by bill of attainder, and has no similitude to the regular and cautious process carried on accord- ing to the course of the common law. The no- tice here given to the accused is analogous to the time usually given in acts of attainder, for the person attainted to come in and surrender. (2 Wooddes., 625; Fost., 79.) The Legislature ;also provided by a subsequent statute that these convictions should not afterwards be reversed or shaken ; and this statute being in pari maU- ria, may be 'considered as explanatory of the souse of the other. By the Act of 19th May, 1784 (7 sess., ch. 64, sec. 23), it is declared that all forfeitures and confiscations before had against any per- son, on conviction of adhering to the enemies of this State, are to all intents, constructions and purposes, ratified and confirmed, notwith- standing any error in the proceedings, or in anywise relating thereto, and all writs of error on any judgment thereon, are declared to be barred. The conviction of the present lessor of the plaintiff must, therefore, be considered as a conviction under a special provision by statute, and as substantially the same with a convic- tion by attainder. The conviction cannot 274*] *be supported on any other ground; and being within the same reason, it ought to be guided by the same rules of interpretation. My opinion, therefore, is that a conviction of Joshua Temple De St. Croix, by the name of Joshua De St. Croix. is an incomplete de- scription but not a description repugnant, to truth, and that whether the person convicted and the lessor of the plaintiffs were one and the same person, was a question of fact prop- erly submitted, upon the trial, to the jury. LANSING, Ch. J. , and LEWIS, J. , were of the same opinion. Judgment for the defendants. 1 Cited in 2 Cai., 166. 1 .Though a man may have two or more surnames, he can have but one name of baptism. Disply v. Sprat, Cro. Eliz., 57; Co. Litt., 3. a; Shep. Touchst., 235 ; Evans v. King, VVilles's Rep., 554 ; Franklin v. Talmadge, 5 Johns. Rep., 84. JOHNSON'S CASES, 2. N. Y. REP.. BOOK 1. JOHNSTON t>. HEDDEN. 1. Money Pounds Demand Declaration. 2. Id. Id. Value of Court Will Take Notice. A declaration on a bond for 70, stating that the plaintiff demanded the 70, of the value of 8175, lawful money of the State, which the defendant owes and detains, is good. Pounds are not an unknown money of account, and the court will, ex offlcio, take notice of their value. was an action of debt, on a bond 1 dated the 12th April, 1796, for 70. The plaintiff, in the declaration, declared the 70 to be of the value of $175, lawful money of this State, which the defendant owes and de- tains; and that the defendant bound himself in the said 70. To this declaration there was a special de- murrer, stating that the 70 are not alleged to be of lawful money of this State, nor of any other currency; and the defendant insists that in this, like the cases of suits for *for- [*275 eign money not made current, the declaration must be in the detinet only, as if it were bul- lion. Mr. D. A. Ogden for the plaintiff. Mr. 8. Jones, Jun., contra. Per Curiam. The declaration is sufficient. Pounds are not a foreign or unknown money of account. The act requires that all accounts arising from proceeding in the courts of justice within this State, except as to bills of costs, and all judgments shall be in dollars, &c. This is not an account or demand arising from proceedings in a court of justice, and, there- fore, it was not even necessary to state the value in dollars. The court will, as before, ex offitio, take notice of the value of pounds; and in rendering judgment, convert them into dollars. Besides, the value is here stated, and that is sufficient to direct the judgment. There must be judgment for the plaintiff. Judgment for the plaintiff. THE PEOPLE v. DENTON. 1. Jury DiscJiarge of Wiihou t P)-isonfr's Con- sent Discretion of Court. 2. Verdict Fail- ure to agree Second Arraignment Same In- dictment. The Court of Sessions has power to discharge a jury without the consent of the prisoner, in case of an indictment for a misdemeanor ; but the power rests in sound discretion, and ought to be exercised with caution. Where a jury could not agree on a verdict, after being out all night and part of a day, and the court discharged them without the consent of the party, the discharge was held to be proper, and the prison- er was again arraigned, on the indictment, for the same offense. THE prisoner was indicted for a misdemean- or, in neglecting his duty as an inspect- or of the election of the town of Hempstead, in the County of Queens, in April, 1799, under the act for regulating elections. *The [*2 76 indictment was found at the general sessions of the peace in Queens County. The prisoner 33 5 IB 276 SUPREME COURT, STATE OF NEW YORK. 1801 pleaded not guilty. After hearing the evi- dence, the jury retired, and came into court in the morning, with a verdict of not guilty; but, on being polled, three of the jurors dis- sented, and, after having been sent out several times, they informed the court that they could not agree, and that there was no prospect of their agreeing on a verdict. The Court of Ses- sions, without the consent of the prisoner, dis- charged the jury; and the indictment was re- moved to this court by certi&rari. The prisoner, being brought up and arraign- ed, was called on to plead to the indictment. Messrs. 8. Jones and C. I. Bogert, counsel for the prisoner, objected: 1. Because that the offense stated in the indictment, which is found- ed on the 21st section of the act for regulat- ing elections, is not an indictable offense, and they moved to quash the indictment. 2. Ad- mitting it to be an indictable offense, yet the prisoner, having been once tried, and the jury discharged without the consent of the prisoner, he cannot be again called upon to answer to the indictment. In support of the first point, they cited the 20th and 21st sections of the act regulating elections. (See Greenleaf's ed. of Laws, vol. 1, p. 328, 10 sess., ch. 15; 2 Hawk. P. C., 301, 302, sec., 4; 2 Burr., 799, 803, 804; and Kale's P. C., 171; Cro. Jac., 644.) To the second point, they cited (2 Hawk., 622, 623, 624; Carth., 465; Foster, 16 to 22, ef *eq; 1 Anderson, 103.) Mr. Hoffman, Attorney-General, and Mr. Golden, district attorney, contra, cited: (1.) 2 Stra., 1048; 2 Ld. Raym., 1104; 2 Hawk., 395. (2.) Foster, 27, 29, 30; 2 Hale's P. C., 295, 297; Jacob's Law Diet., voc. Jury; 2 Leach., 706. 277*] *Per Curtain. 1 . This was an indict- ment for a misdemeanor, and the jury, after being sent out several times and returned to the bar, could not agree on a verdict and were discharged by the court without the consent of the defendant. The power of discharging a jury, in cases of misdemeanors, as in civil cases, rests in sound discretion, and is to be exercised with great caution. Where every reasonable endeavor has been used to obtain a verdict, and it is found that the jury cannot, or will not agree, they must, ex nfcextritate, be dis- charged. We think that the discretion of the court below was duly exercised in the present case, and that the discharge was necessary and proper. 2. As to the other point, the court have doubts, and the prisoner must, therefore, plead inslanter. [ The prisoner pleaded not guilty, and was recognized to appear at the- next oyer and terminer, in Queen's County.] 1 Approved post, 302. Cited in 8 Cow., 129 ; 14 Barb., 293 ; 50 Barb., 579 ; S. C., 32 How., 53 ; 2 Park., 683 ; 6 Park., 268 ; * Wheeler, 476 ; 5 City H. Rec., 104 ; 4 Wash.. 408. MUBRAY, In the matter of the [*278- Attachment, v. THE TRUSTEES OF THE RINGWOOD- COMPANY. 1. Absconding Debtor Trustee Sale of bind by Eviction Personal Liability. 2. Person* acting in autre droit Responsibility. Where the trustees of an absconding' debtor, ap- pointed under the act, sold his lands, and gave a deed conveying all the debtor's right and title, and the purchaser was evicted of a part of the land, it was held that the trustees were not liable to refund any part of the purchase money. Trustees and persons acting in autre drrrit are not responsible,, unless there be fraud, or an express warranty. AN attachment having issued against certain- persons, under the description of the American Iron Company, or Ringwood Com- pany, Peter Goelet, Robert Morris and William Popham were appointed trustees, pursuant to the act for relief against absconding or absent debtors. The trustees sold all the right, title- 1. Though the rest of the judges were not clear whether this was an indictable offense, Kent, J., thought an indictment would lie. The following is taken from his MS. opinion, as to that point. The 21st section of the election law declares that if any inspector shall wilfully neglect to perform his duty, or be guilty of any corrupt misbehavior, and be thereof convicted, he shall forfeit and pay 200. to be recovered in a qui tarn suit, by an action of debt, bill, plaint or information. It is contended that the statute has created this offense of a wilful neglect of duty by the inspector. This is certainly a mistake. Every wilful neglect of a public trust, affecting the community, is an offense at common law. If the statute had been totally silent as to the whole matter of this 21st section, it cannot be doubted but that-inspectors of the election would have been indictable for a wilful neglect, as well as for a corrupt execution of their office ; because such conduct, would be a public injury, and affect the community in its most essential rights. The true distinction on this subject is laid down clearly and emphatically in Castle's case ( Cro. Jac., 644 ), and repeated and confirmed by the Court of King's Bench in the case of The King v. Robinson (2 Burr., 803). Where a statute creates a new offense, and inflicts a penalty for the doing of a thing which was no offense before, and appoints how it shall be re- covered, it shall be punished by that means, and not by indictment. But the wilful neglect, as well as the corrupt execution of a public trust, was always a crime by the common law ; and weak, and miser- able would be that system of law, and that adminis- tration of justice, which would permit a public of- 514 fleer wilfully to neglect his official duty, and not hold him responsible as for a public offense. Offenses by officers, says Sergeant Hawkins, con- sist, 1st. In breach of duty. In the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully. Since every office is in- stituted not for the sake of the officer, but for the good of some others. Nothing can be more just than that he who either neglects or refuses to answer the end for which his office was ordained, should give way to others who are able and willing to take care of it. An officer is liable to a forfeiture of his office for neglecting to attend to his duty at all rea- sonable and proper times and places, and also liable to a fine. ( 1 Hawk., bk. 1, ch. 66, sec. 1, 2.) These gpsitions of Hawkins are cited and confirmed by ir William Blackstone (Com., vol. 4, 140 ), and leave- no doubt but that the offense charged in the indict- ment in the present case was an offense at common law. The indictment here concludes against the statute; but the authorities in 2 Hawk, show that these; words may be rejected, as surplusage, if the offense be at common law, and especially if it be only a common law offense. A case in Strange, 1048 (Rex v. Luckup) goes to show that an indictment will lie on the 21st section of the act, in order for a convic- tion to found the qui tarn action. But that case may justly be doubted. Such an indictment is too mucli an idle prosecution, pro forma, and may be founded on the testimony or the man who afterwards sues for his own benefit. JOHNSON'S CASES, 2_ 1801 GILBERT v. EDEN AND EDEN. 278 and interest of the company to certain lands at public auction, and three of the lots were conveyed, by the trustees, to John B. Murray. An action of ejectment was afterwards brought by Murray and others, who purchased of the trustees, against persons who claimed 279*] title to part of the lands, *and they recovered only 14--18th parts of the land so purchased by them. (See 1 Johns. Cas., 372, 377.) Murray claimed to be refunded 4--18th's of the purchase money paid to the trustees, and, Mr. Pendleton, in his behalf, now moved for an order, under the 27th section of the act, to refund 4-18th's of the purchase money, and to pay the costs of the action of ejectment. He cited 2 Eq. Cas. Abr., 688; 1 Ves., 126. Mr. Harison, contra, admitted the power of the court, under the act, to interfere; but he contended that in cases of executors, trustees, and others, acting in autre drait, they can never be liable, unless in cases of fraud, or on an express covenant. That the trustees sold only the right and title of the company, and it was incumbent on the purchaser to look to the goodness of the title. The old maxim of caveat emptor, is applicable to them. He cited Doug., 630; 3 Ves., Jun., 235. Per Curiam. It is unnecessary to decide whether this application is within the 27th section of the act, since we are clearly of opinion that it is unfounded on the merits. The trustees, in selling the land, acted in autre droit, and the covenants in the deed are ex- pressly confined to their own acts, and do not warrant the title. They merely sold all the right and title of the Ringwood Company, and it was incumbent on the purchaser to look to the goodness of the title. There is neither an express nor an implied warranty on the part of the trustees, and the rule of caveat emptor strictly applies. The motion must be denied. Rule refused. 280*] *GILBERT EDEN AND EDEN. Judgment Bond Allegation Usury Feigned Issue. Where there is color for the allegation that a bond on which a judgment has been entered up on a war- rant of attorney is usurious, the court will award a feigned issue to try the fact. Citations Barnes, 52, 277; Cowp. t 727; 1 Bos. & Pull., 270. MR. WORTMAN, for the defendants, moved to set aside the judgment in this cause, and the warrant of attorney on which it was entered, on the ground of usury. He read several affidavits to prove the usury. He cited 4 Term Rep., 500; 3 Bro. C. C., 603, 604; 2 Ves., Jr., 154; Plowd. on Usury, 149. Mr. Hoffman, Attorney-General, Messrs. B. Livingston and Pendleton, contra. Messrs. Hamilton and Spencer, for the de- fendants, replied. JOHNSON'S CASES, 2. Per Curiam. From the affidavits which have been read, it appears that the bond was usu- rious ; but the court are not to judge of the credibility of witnesses. As there is color, at least, for the allegation of usury, the proper course is to award a feigned issue to try the fact. (Barnes, 52, 277; Cowp., 727 ; 1 Bos. & Pull., 270.) Let a feigned issue be awarded. 1 Cited in 5 Johns. Ch.,141. CONE v. WUITAKER. Nonsuit Insolvent Act Discharge Under Subsequent Taxation of Costs Lien. Where a plaintiff in a cause was nonsuited in 1799, and a judgment of nonsuit entered in January Term, 1800, and the plaintiff obtained his discharge under the Insolvent Act, in November, 1800, and the costs of the nonsuit were taxed, after the discharge, it was held that the costs were not a debt until taxa- tion, and the plaintiff was not, therefore, discharged from the costs. THE defendant was nonsuited in a cause at the October circuit, 1799, and a judgment of nonsuit was entered, in January Term^lSOO, against him, as plaintiff. A motion was made, on a case stated, in October Term, 1800, to set aside the nonsuit, which was denied. On the 24th November,1800, Whitaker was discharged, *underthe Insolvent Act, the 14th No- [*281 vember, 1800. He was taken afterwards, on a ca. sa. at the suit of Cone, for the costs of the suit, in which the nonsuit was entered, and which were taxed subsequent to the prisoner's discharge; Whitaker is a non-resident, and if these costs had been added to his debts, there would not have been three fourths of his cred- itors in amount, to his petition, at the time of his discharge. Mr. Spencer, for the defendant, now moved for his discharge from the execution. Per Curiam. The coste in this case were not taxed at the time of the defendant's discharge; and being uncertain, and unliquidated, they could not be included in his inventory of debts; nor could the present plaintiff recover them until taxed. They cannot, therefore, be affect- ed by his discharge ; and the plaintiff, on the principle laid down in Frost -v. Carter,* must be paid. The motion is denied. Motion, denied. Overruled 5 Johns., 135. Cited in 5 Johns. Ch., 141. 1. 3 Johns. Rep., 139, 142, 250. 2. 1 Johns. Cas., 73. The decision in the above caso seems to have been grounded on the rule laid down by Lord Chancellor Thurlow, in the case Ex-jparte Sneaps, March 4th, 1782, cited in Cooke's Bankrupt Law, p. 241, 3d ed., ch. 6, sec. 13, in which the Chan- cellor said it was clear that, in all instances, in the Court of Chancery, the taxation constitutes the de- mand ; and as the taxation was subsequent to the bankruptcy, the debt wnsjsubsequent, and could not be discharged. See, also, 3 Wils., 270, 272. But there are other cases in which the costs are carried back, by relation, to the verdict or judgment. Aylett v. Harf ord, 2 H. Bl. Rep., 317 ; Cooke's B. L., ch. 6, sec. 10 ; Lewis v. Piercy, 1 H. Bl., 29. In the case of Hurst 515 282 SUPREME COURT, STATK OF NEW YORK. 1801 282*] CRAMMOND, Executor. &c., V. ROOSEVELT. Inquest Mistake of Attorney Refusal to Set Aside Default Usury. Where the attorney for the defendant suffered an inquest to be taken by default, at the sittings, sup- posing there was no defense, the court refused to set aside the default, to let the defendant in, to show usury, as a defense. MR. S.JONES, Jun. .for the defendant.moved to set aside an inquest taken by default, at the last July circuit, in New York, and for leave to plead to the merits. It appeared that the general issue was pleaded, and an inquest was taken, of which the defendant's attorney was apprised, at the time ; but that, through a misunderstanding between him and his client, he did not suppose there was a defense to be made in this suit. The defense was usury, which the attorney supposed was to be made in other suits only, in which he was concerned for the same defendant, but which was also applicable to this, and is now intended to be set up. Mr. Jones cited Salk., 513; 1 Wils., 98; 12 Mod., 439; Stiles, 466. Mr. P. A. Jay, contra. Per Curiam. The defendant has had a full opportunity to make his defense, and the in- quest was deliberately suffered to be taken. After this he must be precluded. It would be too loose again to open the cause for a defense, on the ground of a mistake, either in the de- fendant or in his counsel. Here was no cir- cumvention or deception on the part of the plaintiff, and the defendant can have no legal claim beyond a fair opportunity to make his defense. Public policy and expediency, as 283*] *well as the danger of such a prece- dent, require that thereafter there should be an end to litigation. The motion must be denied. Motion denied. MILNER ET AL. . GREEN. 1. Bankruptcy Commission of Arrest Ca.Sa. Discharge Bail Exoneretur. 2. Discharge Power of Court. Where the principal, against whom a commission of bankruptcy had issued, was arrested on a ca. sa. and discharged, it was held that the bail was also discharged, and that there was no necessity to enter an rjroneretur on the bailpiece. Whether the court has power to discharge a de- fendant from execution, on the ground that a com- mission of bankruptcy had issued against him. Quaere. v. Mead, 5 Term Rep., 365, it was decided that if the plaintiff becomes a bankrupt after he is nonsuited, and before the taxation of costs, the costs of the nonsuit are a debt provable under the commission. See, also, Philips v. Brown, 6 Term Rep., 282, and Watts v. Hart, 1 Bos. & Pull.. 134. In Willett v. Pringle, 5 Bos. & Pull., 190, or 2 Bos. & Pull., N. 8., the court decided that the costs followed the debt, and that if a bankrupt be sued after his commission, and he afterwards obtain his certificate, he shall be discharged from the costs as well as the debt. But it is observable that Lord Eldon, in Ex-parte Hill, 516 CI. BOGERT moved than an exonereturbe entered on the bailpiece in this cause, or that all proceedings against the bail be dis- charged. The principal had been declared a bankrupt in Rhode Island, under the law of the United States, and was served with a no- tice to surrender, on the 25th April instant. On the loth April he was arrested here on a ca. sa. and discharged. Mr. Bogert cited the 22d section of the law. (Laws U. S., Vol. v., p. 45; 6 Cong., Isess., ch. 19.) Per Curiam. One of the conditions of the recognizance is that the defendant shall sur- render himself to prison; and when the de- fendant was arrested by the sheriff on the ca. sa., the condition was strictly complied with, and the bail discharged from their responsi- bility. Where bail are discharged, by the taking of the defendant in execution, it is not usual nor necessary to enter an exonefretur on the bailpiece. On this ground we deny the motion. The bankrupt law is not to be con- strued injuriously to bail. It was not made to affect their rights, but those of the plaint- iffs; and if the defendant has been discharged in a manner inconvenient to the plaintiffs, it results from the Bankrupt Act, or from the sheriff, who *will be answerable, if the [*284 act does not authorize a discharge. 1 Motion denied. SEAMAN t>. HASKINS. Demurrer Witlidrawal. After rule for judgment on a demurrer, it is too late to apply, at the next term, for leave to with- draw it. THERE was a demurrer to the plea, in this cause, which the court, at the last term, decided was not well taken. Mr. Golden, for the plaintiff, now moved for leave to withdraw the demurrer, and replv to the plea. (1 Sellon, 379; Sayer, 316.) "No judgment has been entered up. Mr. Biker, contra. Per Curiam. After the court have given judgment, and ordered it to be entered, and a 1. In M'Master v. Kell, 1 Bos. & Pull., 302, the Court of C. B. in England decided that they had no power to discharge a defendant out of execution, on the ground that a com mission of bankruptcy had been since issued against him by the plaintiff. Eyre, Ch. J., said there had been no instance of such an application. "Suppose," says he, "the Lord Chancellor shonld think fit to supersede the com- mission, then we shall have discharged the debtor, because a commission has issued against him, and the Lord Chancellor will have superseded the com- mission, because the party has been charged in exe- cution." 1801, cited in a note to Willett v. Pringle, after going through all the authorities, which he examines very critically, decided that the costs of an action, where the verdict was after the commission, could not be proved, though the debt was provable. It would seem to follow that, in his opinion, the bankrupt could not be discharged from the costs which had own taxed, on the verdict obtained prior to the commission. The rule appears, therefore, to be dif- ferent in the courts of common law, and in chan- cery. See Cullen's Bank Laws, 104, 106, 133, ch. 3, sec. 2. JOHNSON'S CASES, z. 1801 FRANKLIN v. THE UNITED INSURANCE COMPANY. 284 "-T"~" term has elapsed, the party comes too late to ask for leave to withdraw his demurrer. He should have applied at the last term, before the rule for judgment was entered. Motion denied. Cited in-3 Johns. Gas., 301 ; 8 N. Y., 332. 285*] *FRANKLIN THE UNITED INSURANCE COMPANY. Commission Stay Affidavit of Merits Wit- nesses Material. A commission to examine witnesses will not be granted, so as to stay the proceedings in the cause, unless the party swears positively that he has a good defence on the merits, and that the witnesses named are material. AN application, in behalf of the defendants, was made in October Term, which was within the time for making the motion, for a commission to Porto Bello, in South America; but as the affidavit did not mention the names of the witnesses to be examined, the motion was denied. Mr. Troup, for the defendant, now moved again for a commission. He read the affida- vit of the president of the company, stating that though diligent means were used, the names of the witnesses could not be obtained until after the last term ; that the testimony of the four witnesses named was material to prove the condition of the vessel at Porto Bello, the state of the winds, the materials for repairs, and the practicability of the vessel's proceed- ing to the place of destination ; that the mate- rial point in controversy was whether the ves- sel might not have continued her voyage, and that this point cannot be ascertained without a knowledge of facts, which he believed the witnesses could testify; and that he advised and believes that the defendants cannot safely proceed to trial without their testimony. It was stated, on the part of the plaintiffs, that there was little trade between the United States and Porto Bello; that two of the wit- nesses named were also named by the defend- ants as commissioners, at the October Term, and the names of the witnesses were contained in the testimony brought by the vessel on her return, relative to the vessel and cargo. Messrs. Riggs and Hamilton, contra. Messrs. Pendleton and Haiison replied, in sup- port of the motion. 286*] *PerCuriam. Though the defendants account for their delay in making this applica- tion, yet they do not state with certainty that there is a substantial defense, or that they are informed and believe any to exist. Where a party asks for delay, he ought to state posi- tively that he has a defense on the merits, and that he seeks only the requisite proof. The defendants ask for a commission for the double purpose of ascertaining or discovering whether a defence really exists, and if it does, to obtain the requisite proof to support it. JOHNSON'S CASES, 2. The affidavit does not state probable grounds to induce a belief that the vessel could have continued her voyage. The commission ap- pears to be intended for general inquiry, to fish for facts. If it should be granted, it would become a precedent that would lead to abuse. The motion must be denied; but the de- fendants will be at liberty to take out a com- mission, if they choose, without any stay of proceedings in the case. Rule refused. Cited in 1 Wend., 20 ; 44 Cow., 461. NITCHIE v. SMITH, Administratrix of SMITH. Default Adminstratrix Excuse Allowed t Defend Judgment as Security. Where a judgment by default was regularly ol>- tained against an administratrix, she was allowed to come in and plead ; but the judgment was directed to stand as security for the assets remaining after payment of prior judgments confessed, and for as- sets quando accidtrint. CI. BOGERT, for the defendant, moved to . set aside a judgment by default, on scire facias, entered at the last term. The defend- ant's affidavit stated that she had a good de- fence, and that during the time for -pleading her attorney was dangerously ill; she, herself, residing in Connecticut. Mr. Hamilton, contra, contended that the judgment, at least, ought to stand as security for the assets. *Per Curiam. The defendant ought not [*28 7 to be made liable beyond the assets remaining in her hands, after satisfying the other judg- ments which she confessed. Not having suffi- cient to discharge all the judgments, she was obliged to give some a preference. Her elec- tion in favor of other creditors, therefore, is not to be charged to any misapplication of the assets; and she ought not to be made liable for more than what remains; after satisfying those judgments. Her excuse, too, for not plead- ing, appears sufficient ; but as the judgment is regular, it ought to stand as security for the assets in her hands, beyond the amount of the other judgments, and for other assets quando acciderint; and she must disclose, by affidavit, the state of the assets at the time and since. Ride accordingly. Cited in 38 N. Y., 20; 35 How., 33; 4 Abb., N. i?., 273, S. C.; 4 Trans. A., 25)3. HASKINSr. SNOWDEN. Notice of Bail Declaration Rule to Plead Attorney Afterward* Retained No New Service. Where the defendant gives notice of bail, in pn>- pria persona, and the plaintiff serves him with a copy of the declaration and notice of rule to plead, and the defendant afterwards retains an attorney, the plaintiff need not serve another copy of the declaration and notice on t lie attorney. 517 28", SUPREME COURT, STATE OP NEW YORK. 1801 MR. S. JONES, Jun., moved to set aside the default entered in this cause, for want of a plea, on the ground of irregularity. It appeared that Malcolm had given notice of being concerned as attorney for the defend- ant ; but no copy of the declaration, or notice of the rule to plead, had been served on him. The plaintiff, having previously received a no- tice of bail being filed, from the defendant in person, served the copy of the declaration and notice on him, before receiving any notice of the retainer from Malcolm. Mr. Kiker, contra. 518 *Per Ouriam. After receiving no- [*288 tice of bail from the defendant, in propria. persona, it was regular to serve the copy of the declaration on him; and the plaintiff was not bound to deliver a new copy and notice to the attorney who was afterwards retained. But as the defendant has made affidavit that he has a good defense on the merits, and no trial has been lost, the default is set aside, on payment of costs. Rule granted. Cited in 6 Cow., 435. JOHNSON'S CASES, 2. [END OF APRIL TERM.] CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE STATE OF NEW YORK, JTJLY TKRM, IN THE YKAR 1SO1. 289*] *BAKER v. LUDLOW. Marine Insurance Memorandum Articles "Free from Average Unless General" "Perishable Articles " Loss. Where " dried fish " were enumerated among the Articles in the memorandum to a policy of insur- ance, as free from average, unless general ; as also, 41 all other articles perishable in their ow_n nature ; " it was held, that pickled fish were not included in the memorandum, and that the plaintiff might re- cover for an average loss on them. rP HIS was an action on a policy of insurance -L on goods from North Carolina to Mar- tinique. At the foot of the policy was the following memorandum: "It is agreed that salt, grain of all kinds, Indian meal, fruits, cheese, dried fish, vegetables and roots, and all other articles, perishable in their own nat- ure, are warranted by the assured, free from average, unless general." The cargo consisted of pickled fish, peas, and other articles. During the voyage the vessel sprung a leak, and the peas, which were in bulk, became so much damaged and heated as to spoil the fish. The fish were herrings, pickled in North Carolina, under the direc- tion of sworn inspectors, and were in good order when the vessel sailed. At the trial, three witnesses, on the part of the plaintiff, were of opinion that pickled fish was not a perishable article within the mean- 29O*] ing of the memorandum *of the poli- cy; and one of them said that the memoran- dum had been altered, within a few years, to dry fish, so as to exclude pickled fish. Two witnesses for the defendant said they thought pickled fish, particularly herrings, a perishable article within the memorandum. The jury found a verdict for the plaintiff for a partial loss. A motion was made to set aside the verdict, and for a new trial. Mr. Pendleton for the defendant. Messrs. Troup and Boyd for the plaintiff. NOTE. As to construction of marine insurance policy, see Bakewell v. United Insurance Co., ante, 246, and note. JOHNSON'S CASES, 2. Per Uuriam. By the terms of the memo- randum, fish in general were not intended to be included; and the expression "dried fish" implies that other fish were not intended; for e&pressio unius exclusio est alterius. The subse- quent words, "all other articles perishable in their own nature," are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enu- meration of them. The weight of evidence is also in favor of this construction, as being that in which the sense of the words is gen- erally understood. We are, therefore, of opinion that the plaintiff must have judgment. Judgment for the plaintiff Limited, 7 Johns., 389. Cited in- Wend.. 637. *BUTTERWORTH v. STAGG. [*291 Suit in Name of Another Without Consent Nonsuit A ttach ment. Where a person brought a suit in the name of another, without his privity or consent, it was held to be a contempt of the court, and the nominal plaintiff being nonsuited, an attachment was granted against the person who brought the suit, for the costs. Citation Cases Temp. Talbot, 237 ; 4 Bl. Com., 385. THIS was an action of assumpsit, on si promissory note, brought by Richard M. Woodhull, in the name of Butterworth, the present plaintiff. It appeared that Butter- worth never was either the payee or holder of the note, nor in any way interested therein; and that Woodhull never had any authority to bring the suit in his name, and that the plaintiff knew nothing of the suit. The plaintiff was nonsuited at the last circuit. Mr. Baldwin now moved for a rule on Woodhull, to show cause why an attachment 51!) 291 SUPREME COURT, STATE OK NEW YORK. 1801 should not issue against him for the costs, on the ground of a contempt of the process of the court. Per Curiam. This is evidently an abuse of the process of the court. It is a contempt to bring a fictitious suit, or to use the name of another, without his privity or consent. If we do not interfere, the nominal plaintiff may be materially injured; and when it is in our power to afford him relief, in this summary mode, as for a contempt, we ought to do it, and reach the real person who has perverted the process of the court. We, therefore, grant the rule. (Goxe v. Philips, Cas. Temp. Hardw., 237; 4 Bl. Com., 285.) Rule granted. Cited in 12 N. Y., 38; 23 Hun.; 276. 292*] *GILBERT v. FIELD. Declaration Time Non Pros. Ru le to Decla re Notice. Where the plaintiff does not declare within the time required by the statute, the defendant cannot enter a judgment of nonpros., without having pre- viously entered a rule for the plaintiff to declare, and served him with a notice of such rule. rpHIS was an action for slander. The plaint- -L iff not having declared within two terms, the defendant entered his default in the book of common rules, and afterwards entered a judgment of non pros, thereon, without a rule or notice to declare. Mr. Riggs, for the plaintiff, now moved to set aside the judgment for irregularity. Mr. Spencer, contra. Per Curiam. The statute directs, generally, that if the plaintiff does not declare before the end of two terms, the defendant shall be entitled to a judgment of nonpros.; but the time and manner of declaring, and of enter- ing the judgment of non pros., is left to be governed by the rules and practice of the court. The 7th, 8th, and 9th rules of April Term, 1796, require, in all cases, whether the defendant enters his appearance or files com- mon or special bail, that a rule to declare must be entered, and notice thereof given to the plaintiff or his attorney, before a judg- ment of nonsuit can be entered. As no such rule has been entered, or notice given, the judgment must be set aside. Rule granted. 293*] *RENOARD e. NOBLE. 1. Bail Personation Scire Facias Pleading Evidence Identity. 2. Id. Personation Vacatur Discretionary. 3. Id. Id. Fel- onyProsecution Stay. In an action of scire facias, against bail, the de- fendant pleaded that another person of the same name and description became bail, and traversed that he was the person named in the bailpiecc. 520 The name of Elnathan Noble was inserted in the bailpiece, but it was proved that Stephen Norton was the person who intended to be bail, and who,. in fact, appeared before the judge who took and signed the acknowledgment on the bailpiece. It was held that the plea was good ; that the evidence was admissible, and sufficient, on the issue joined between the parties, as to the identity of the person. Where bail are personated, the court will, in their discretion, on motion, order a vacatur of the bail ; but if there has been a felonious personating of bail, they will stay any order for relief, until the party personated has prosecuted the felon. Citations Cro. Jac., 256 ; 3 Keb., 694 ; T. Jones, 64; 1 Ld. Raym., 445 ; 12 Mod., 257 ; Foster, 41. was an action of scire facias, on recog- - nizance of bail, in which the defendant is described as "Elnathan Noble, of the town of Pittsfield, yeoman." The defendant pleaded that another person of the same name and description became bail, and traversed that the defendant is the same person. The plaint- iff replied that the defendant and the person described in the recognizance of bail are the same person, and issue was joined thereon. At the trial of this cause, the defendant ad- mitted his name and addition to be as stated in the recognizance of bail, and that there was no other person of that name and addition in the town where the defendant resided, to his knowledge. The defendant then proved that the defend- ant in the original suit employed an attorney,. who, in the autumn of 1798, made out a bail- piece, as of the term of October, 1798, which the original defendant took, and went out with his bail, and returned on the same day with the bailpiece certified by a judge, and in company with one Stephen Norton. The at- torney did not recollect the bail, whether he was the present defendant, or the said Stephen Norton; but it appeared that the name of the bail in the bailpiece was in the handwriting of the attorney, and that Norton resided in a different town from that in which the defend- ant resided. The bailpiece was dated the llth January, 1798. It further appeared, by the testimony of Stephen Norton, that he came to Cooperstown (where the judge, who took the bail, resided) to be special bail for the defend- ant in the original suit. The original defend- ant went to the attorney to get the bailpiece drawn, and then he and Norton went together to the judge, who signed his name to the *bailpiece, but did not ask Norton to [*294r acknowledge himself bail, and no words pass- ed between him and the judge. This was on the llth January, 1798; and the present de- fendant was not in Cooperstown on that or the preceding day. Norton supposed himself bail, till after a trial in the original suit, and the original defendant had gone off. A ver- dict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts ; and two questions were raised for the consideration of the court. 1. Was the evidence admissible? 2. If so, was it sufficient to establish the plea? Mr, Emtilt for the plaintiff. Mr. Hoffman, Attorney-General, contra. KENT, /., delivered the opinion of the court: It was admitted by the plaintiff's counsel, JOHNSON'S CASES, 2. 1801 GILFEKT v. HALLET AND BOWNE. at the argument, that in case bail are person- ated, the court could direct a vacatur of the bail ; and this appears to have been done in a variety of cases. (Cotton's case, Cro. Jac., 256 ; Higham v. Barf old, 3 Keb., 694 ; Beasley's case, T. Jones, 64.) The power of awarding a vacatur is exercised by the court in great discretion. They refuse it where, upon ex- amination, the merits of the cause do not appear sufficiently clear (1 Ld. Raym., 345; 12 Mod., 257), and sometimes stay it until the person personated has prosecuted to effect the person guilty of wilfully personating him, as was done in Beasley's case. (T. Jones, 64. ) J All the cases that have been cited are instances of application to the discretion of 295*] the court. There are none *of a plea avoiding the record. But the form of the plea in the present case is taken from Lilly's Ent. , 398, a book of generally approved prece- dents ; and it does not appear to be repug- nant to the rule that no averment shall be admitted against a record. The plea does not contradict a single fact in the bailpiece. It only avers that the defendant is not the per- son of that name, thereby intended, which is an averment consistent with the truth of the record. But the validity of the plea is not to be examined in this way, for the plaintiff ad- mits its validity, in point of law, by traversing the fact ; and the parties go to trial upon the issue whether the defendant is or is not the same person mentioned and described in the bailpiece. To this issue the evidence offered was com- petent and pertinent; and the only remaining question arising on the case is in respect to its sufficiency. Here, also, I cannot entertain any doubt. The defendant most certainly was not the per- son who appeared and became special bail. It appears, from the testimony of Stephen Nor- ton, that he was himself the person who ap- peared before the judge, when the acknowl- edgment of bail was certified; that he, bona fide, intended to be the bail, and supposed he was bail. This is not the case, therefore, of a felonious personating of bail, in which the courts have required, when application has been made to their discretion for relief, a previous prosecu- tion of the felon. But it may be said that the whole plea is not verified, to wit, that there was another person of the same name and des- cription, who became bail; and that the proof, as far as it goes, is, that there was no other person of that name and description. In answer to this objection, I consider the allega- tion that another person of the same name be- came bail, as but inducement to the substance, or gist of the plea, which is, that the defend- ant was not that person. The proof that there was no other person, is but merely negative. 296*] *It could not be requisite for the de- fendant to prove such a fact; and if he proves himself not to be that person, the law will intend, in conformity with the plea, and in consistency with the truth of the record, that 1. See Hobhouse v. Hamilton, 1 Seoales & Lef roy, 207, in which it was held that an enrollment of a deed binds, though procured by fraud ; and that It is better to let the party seek his remedy for the fraud, than question the record. JOHNSON'S CASES, 2. another person of the same name and descrip- tion does exist. In the case of Cluirles Raddiffe (Foster, 41), who was brought into court for judgment, in the year 1746, upon a conviction and attainder had in the year 1716 ; he pleaded that he was not the person mentioned in the record, and issue was joined on that single fact, without its being incumbent on the defendant to ques- tion or identify any other person. No doubt was entertained but that if the plea had been true in fact, it would have been valid in law. We are, therefore, of opinion that the de- fendant is entitled to judgment. Judgment for the defendant. GILFERT r. HALLET AND BOWNE. Marine Insurance "At and From" "Liberty to Touch" Stress of Weather Deviation Theft Pirates Aba ndonment Loss Tola I. Insurance on goods, at and from New York to Baracoa, with liberty to touch at one or two ports on the north side of Cuba ; the adventure to con- tinue until the goods are safely landed at Baracoa, and one or two ports on the north side of Cuba. The vessel arrived at Baracoa, the 26th June, and stayed there until the 30th October, 1799, without being able to sell the cargo, except a small part, and with- out selling any of the goods of the insured ; and the vessel was forcibly entered by pirates. who carried away $4,780, in cash, and a great quantity of goods. The vessel set sail for the Havana, but was compelled by stress of weather and want of provisions to go to New Providence, where she arrived the loth December, where the goods remaining were sold for 83,701 (the invoice amount of the cargo being about $16,500), and the voyage broken up, and an abandonment made, as for a total loss. It was held that the stay at Baracoa did not amount to a deviation ; that the breaking bulk at Baracoa did not put an end to the voy- age there, and that the breaking up the voyage at New Providence was justifiable, and a sufficient ground of abandonment, so as to entitle the plaintiff to recover for a total loss. Citations Park., 295 ; Park. (4th ed.), 206 ; 6 Term R., 631 ; Millar, 126 ; 2 Burr. Rep., 1269 ; 1 Term K., 615. was an action on a policy of insurance, 1 dated 23d May, 1799, on goods, on board the sloop Two Friends, ''at, and from New York to Baracoa, with liberty to touch at one or two ports on the north side of Cuba." The adventure was "to continue until the goods *were safely landed at Baracoa, and [*297 NOTE. Deination . What constitutes deviatwn. Stevens v. Com. Mut. Ins. Co., 26 N. Y., 397; Folsom v. Ins. Co., 38 Me., 414 ; Foster v. Jackson Mar. Ins. Co., Edm., 290 ; De- Peyster v. Ins. Co., 19 N. Y., 272 ; Suydam v. Mar. Ins. Co., 2 Johns., 138 ; Vos v. Robinson, 9 Johns., 192 ; Talcott v. Mar. Ins. Co., 2 Johns., 130 : Reade v. Com. Ins. Co., 3 Johns., 352 ; Md. Ins. Co. v. Le Roy, 7 Cranch, 26; Tenet v. Phcenix Ins. Co., 7 Johns.. 363 ; Robertson v. Col. Ins. Co., 8 Johns., 491 ; Bold v. Rotheram, 8 Q. B., 781 ; Oliverson v. lirightinan. 8 Q. B., 781. What will e.rc.se deviation. Robinson v. Mar. Ins. Co., 2 Johns., 89; Hall v. Franklin Ins. Co., 9 Pick., 466 ; Patrick v. Ludlow, 3 Johns. Cas., 10 ; Neilson v. Col. Ins. Co., 1 Johns., 301; Post v. Phu?nix Ins. Co., 10 Johns., 79; Graham v. Cora. Ins. Co.. 11 Johns., 52; Crocker v. Jackson, 1 Sprague, 141; The Boston, 1 Suum., 328 ; King v. Del. Ins. Co.. 2 Wash., 300; Elliot v. Wilson, 4 Brown P. C., 470. Deviation, however, can only be excused by cause arising after commencement of voyage. The iiei-es- sity for change must be judged of by the circum- -291 SUPREME COURT, STATE OF NEW YORK. 1801 one or two ports on the north side of Cuba." The premium was twelve and a half percent., to return two and a half per cent. , if the voy- age ended at Baracoa. The vessel sailed from New York, on the voyage insured, the 2d June, 1799, and ar- rived at Barracoa on the 8th June, and on the 21st October proceeded to Quibera, and ar- rived off the harbor on the 23d ; when the su jiercargo went on shore to go to a town about thirty mile from the harbor, and the sloop was, in the meantime, to be kept off and on the harbor. On the 26th, the sloop ran into the harbor, in consequence of a signal ; but which proved to be that of pirates, who came on board, and by force, took possession of and plundered the vessel. They took away $4,780 in cash, and a great quantity of goods. On tbr same day the supercargo returned, and finding the pirates on board, went on shore, on the 28th, to procure an armed force, which, however, arrived too late. The pirates left the sloop on the 30th October, and on the 1st November she set sail for the Havana, by what was deemed the safest course. In con- sequence of high winds and a heavy sea, the sloop lost three main shrouds, between the 6th November and the 14th December, one sailor died, and the sloop wanted hands and neces- saries ; and the crew being worn out by fatigue, they bore away, on that day, for Nassau, where they arrived on the 16th December. The sloop had continued at Baracoa, with endeavors on the part of the supercargo to sell his cargo, but he could only dispose of a small parcel from each invoice, except the plaintiff's, of which he sold none. Several persons had adventures on board. There were nearly twenty American vessels at Baracoa, which staid nearly as long as the Two Friends. The plaintiff's goods were carried to New Providence, and there sold with the cargo that remained. The invoice amount of the whole cargo was about $16,500, and the net proceeds 298*] of the whole sold at Nassau, *was $3,701.31. An abandonment was made on the 17th March, 1800. On these facts, the jury, under the direc- tion of the judge, found a verdict for the plaintiff, as for a total loss. A motion was made to set aside the verdict, ttml for a new trial. Messrs. PencUeton and Hanson for the de- fendants. Messrs. B. Livingston and Troup, contra. The counsel for the defendants contended that the risk ended by breaking bulk at Bar- acoa or, at least, that the long stay at Bar- acoa, nearly four months, was unnecessary, and amounted to a deviation; and that staying I three days off the harbor of Quibera was also unnecessary, and a deviation ; for the liberty granted in the policy to touch, was only for information, and not for trade ; and, lastly, that the vessel might easily have been repaired at New Providence, and gone on, the plaintiff not having lost any of his property. KENT, J., delivered the opinion of the court: Staying an unusual and unnecessary time at a port will amount to a deviation (Park, I 295); but I cannot say that this was the case j with the vessel in question at Baracoa. 1 The object of the voyage to that place was the sale of the cargo, and the supercargo made endeav- j ors, but to no purpose, to effect a sale. From I the facts found, we cannot now intend any un- | reasonable delay, or negligence, on the part of j the assured, at" Baracoa. We are to consider the supercargo an having tried, from week to week, to sell the cargo, even by retailing it in small parcels ; and that *his long stay [*299 j there was not singular, nor probably unusual, since about twenty sail of American vessels tarried there nearly as long as the sloop Two ! Friends. Nor do I consider that the breaking bulk at Baracoa put an end to the voyage, or termi- nated the risk. 9 In respect to the plaintiff's cargo, there was no breaking bulk. But what takes this case out of those that have been cited (Park, 4 ed., 206; StiU v. Wendell, 6 Term Kep., 531; Millar, 126), is the special stipula- tion in the policy that the adventure was to continue until the goods were safely landed at Baracoa, and one or two ports on the north side of Cuba. It was evidently the intention of the parties to make this a trading voyage, and that the vessel might go from Bafacoa to one or two ports on the "north side of Cuba, disposing of the cargo by retail, as the vessel proceeded, within the prescribed course. If the breaking l.-^ee Earl v. Shaw, 1 Johns. Cas., 313; Smith v. Surridge, 4 Esp., IV. P. Rep., 25 ; and Suydam and Another v. Marine Ins. Co., 2 Johns. Rep., 138. 2. See Rain v. Bell, 9 East's Rep., 195. stances at the time, not by the event. The devia- tion must be as slight as possible, or if a new voyage be necessitated, it must be made as direct as possi- ble. Lavabre v. Wilson, 1 Doug., 284; Turner v. Protection Ins. Co., 25 Me., 515. Cases above cited. Deviation on time policies. Union Ins. Co., v. Ty- son, 3 Hill, 118 ; Keeler v. Fireman's Ins. Co., 3 Hill, 351): Beams v. Columbian Ins. Co., 48 Barb., 445; Day v. Ins. Co., 1 Daly, 13. Intention alone will not constitute deviation. Kew- ley v. Ryan, 2 H. Bl., 343 ; Lawrence v. Ocean Ins. Co., 11 Johns., 241 ; Snow v. Col. Ins. Co., 48 N. Y., fi24 ; Marine Ins. Co. v. Tucker, 3 Cranch, .157 ; Mary- land Ins. Co. v. Woods, 6 Cranch, 29; Winter v. Del- aware, 30 Pa. St., 334 ; Elliot v. Wilson, 4 Brown P. T., 470. See Thelluson v. Fergusson, 1 Doug., 361 ; Woold- ridge v. Boydell, 1 Doug., 16. DC Hal ion bit rixiting ports in wrong itrder. Beat- son v. Haworth, 6 T. R., 533; Mollish v. Andrews, 16 Kist, 312; Gairdnerv. Seiihouse, 3 Taunt., 16; Ash- ley v. Pratt, 16 M. and W., 471 ; Marsden v. Reid, 3 East, 572 ; Kane v. Col. Ins. Co., 2 Johns., 264. Mid- What exercise of judgment required of master. dlewood v. Blakes, 7 T. H., 162. Knowledge required of master. Phyn v. Royal Ex. Ass. Co., 7 T. H., 505 : Brazier v. Clarke, 5 Mass., 1. Deviation ?>)/ delau. See Earl v. Shaw, 1 Johns. Cas., 313, and note ; Phillips v. Irving, 7 M. and G., 325 ; Hamilton v. Sheddon, 3 M. and W., 49 ; Kings- ton v. Girard, 4 Dal]., 274; Oliver v. Md. Ins. Co., 7 Cranch, 487. Effect of usage. De Peyster v. Sun Mut. Ins. Co., 19 N. Y., 272 ; Seccomb v. Prov. Ins. Co., 10 Allen, 305 ; Kettell v. Wiggin, 13 Mass., 68 ; Lockett v. Mer- chants Ins. Co., 10 Rob. La.. 339. Temporary deviation, for case in which insurers were held liable after, see Greenleaf v. St. Louis Ins. Co., 37 Mo., 25. In general, however, the slightest deviation vitiates the policy, unless under excusable 1 circum- I stances. Martin v. Del. Ins. Co., 2 Wash., 254 : Breed : v. Eaton, 10 Mass., 21 ; Merrill v. Boylston, etc., Ins. ! Co., 3 Allen, 247 ; Elliot v. Wilson, above cited. : See Wiggin v. Amory, 14 Mass., 1, and Wiggin v. i Boardman, 14 Mass., 12. JOHNSON'S C VSKS. 2. 1801 THE PEOPLE v. OLCOTT. 299 bulk atone port was to put an end to the risk, the language of the policy would have been different. It would have been expressed that the adventure was to continue until the goods were landed at Baracoa, or other port of dis- charge on the north side of Cuba. This is, probably, not an unusual provision in our pol- icies of insurance, for in the cause of Smith v. Bates and Walerbury, which was on a policy to a market in the West Indies, and which was tried at the New York circuit, in 1795, it was shown to be the mercantile usage and sense on the subject, that on a policy to a market, the vessel might go from island to island, until the whole of the cargo was sold, without being chargeable with a deviation. 1 The other stipulation in the policy, to return two and a half per cent, if the voyage ended at Baracoa, confirms the opinion that Barra- coa was not understood to be, at all events, the terminus of the voyage, and the liberty to touch, which, had it stood naked and unex- plained in the policy, could not have extended 3OO*] to a liberty *to break bulk, must mean leave to trade, and that, too, subsequent in the order of time to the arrival at Baracoa. I see nothing, therefore, eitjier in the stay or in breaking bulk, to prevent the plaintiff from recovering. Nor did the stay of three days, before and off the harbor of Quibera, amount to a deviation. It was not an unrea- sonable delay or deviation, in seeking for a market, considering the nature and circum- stances of that coast, and the character of the natives. So while the vessel was on her way to the Havana, the departure to the island of Nassau arose from necessity; from adverse weather, which weakened the vessel, exhausted the necessaries of life, and the strength and com- petency of the crew. The only question, then, is this, was the voyage broken up, so as to justify an aban- donment, on the arrival of the vessel at New Providence? The whole cargo of the vessel amounted originally to $16,000; and only a small parcel, probably not amounting to a third of the cargo, was sold at Baracoa. A great quantity of goods and $4,780 in cash, were lost by the act of the pirates, so that the net amount of the whole cargo remaining, when the. vessel arrived at Providence, did j not exceed $3,701. Considering the vessel was injured, and the necessaries exhausted, owing to the state of the winds and sea, and the cargo so greatly diminished by the piracy, I think the voyage may be deemed to have been broken up, and not worth pursuing. The ex- pense of pursuing it would have exceeded the benefit arising from it. (2 Burr. Rep., 1269; 1 Term Rep., 615.) The remains of the cargo could not justify the re-equipment of the vessel and a continuance of the voyage, and the jury were warranted in finding a'total loss. We are, therefore, of opinion that the motion j be denied. Rule refused. Cited In 78 N. Y., 19; 9 Bos., 11. 1. See Maxwell v. Robinson et al., 1 Johns. Rep., 333. JOHNSON'S CASES, 2. *THE PEOPLE v. OLCOTT. [*3O1 1. Conspiracy Indictment of Two Acquittal of One Jury Dimqret Jury Discharged Discretion Second Trial, 2. Id. Id. Three Persons Death of One Acquittal of Another Survivor. 3. Id. Id. Verdict Construction. A and B were indicted for a conspiracy to de- fraud C. B was acquitted, and the jury being- un- able to agree on a verdict whether A was guilty or not, the court, against the consent of A, ordered a juror to be withdrawn, and the jury discharg-ed. It was held that the court may, in their discretion, in a criminal case, discharge a jury who are unable to agree on a verdict, and against the consent of the defendant, who may be brought to trial a second time for the same offense. Where three persons were engaged in a conspiracy, and one of them died before trial, and another was acquitted, it was held that the survivor might be tried and convicted. A and B being indicted for a conspiracy to de- fraud C, the jury found a verdict that there was an agreement between A and B to obtain money from C, but with an intent to return it again : this was held not to be a verdict of acquittal, or a ver- dict on which any judgment could be given. Citations 1 Johns. Cas., 375 ; 1 Co. Inst. It. 3, Inst. 11;/ the court, second trial. One man cannot be guilty of conspiracy alone. State v. Tom, 2 Dev. (N. C.)L., 569; U. S. v. Cole, 5. McLean, 601. One conspirator may be proceeded against after the other is dead. Rex v. Nicolls, 2 Stra., 1227 : Peo- ple v. Olcott, supra ; Reg v. Kenrick, 5 Q. B.. 4!t. See U. S. v. Cole, 5 McLean, 513 ; Rex v. Cooke, 7 D. and R., 673. If -new trial be gi-anted as to one conspirator it will be granted as to all. Reg. v. Gomix-rtz, 9 Q. B.. 824. 523 301 SUPREME COURT, STATE OF 2s EW YORK. 1801 bank, in the manner stated in the indictment, except as to the intent therein charged, to de- fraud the bank, and leave that intent, as an inference of law, to the court ; and the fore- man said, "No." They were then asked whether they would agree to a special verdict, finding the conspiring as charged, excepting the intent to defraud, &c., and with this addi- tional fact, that they intended to return the money again ; and the foreman answered again 3O2*]*in the negative ; whereupon, the court, without the consent of the prisoner, ordered a juror to withdraw, and the rest being called, and only eleven answering, they were dis- charged. The counsel for the prisoner contended that he ought to be discharged, on three grounds. 1. Because the prisoner, being once put on his trial, and the jury not being able to agree on a perfect verdict, and being discharged by the court against the consent of the prisoner, he cannot be again brought to trial. 2. Because the conviction of two persons is requisite to constitute the crime of conspiracy, and Aborn being acquitted, and Roe being dead, the prisoner cannot legally be convicted. 3. Because the verdict offered was a compe- tent verdict of acquittal, and ought to have been received. Messrs. Riggs and B. Livingston for the pris- oner. Mr. Hoffman, Attorney-General, contra. KENT, J., delivered the opinion of the court: 1. The first point arose, and was decided by this court at the last term, in the case of The People v. Denton (see ante, 275); but, as the same question has been raised and argued by counsel in this cause, it was evidently with a view that the court should reconsider its former decision. This has accordingly led me to give the subject a further and more atten- tive consideration, and my researches and re- flections have terminated in the following result. Lord Coke (1 Inst., 227, b; 3 Inst, 110) lays it down as a general rule that a jury sworn and charged by the court, in cases of life or member, and so in all cases of felony, cannot be discharged by the court, or any other, but they ought to give a verdict. The only J3O3*] *authority, however, that he cites in favor of this general position, is a case from 21 Edw. III., 18 (Foster, 32; Brooke's Corone, 42), in which it was adjudged that a person indicted for larceny, and who had pleaded not guilty, and put himself upon his country, should not, afterwards, when the jury was in court, be admitted to become an approver; because, by solemnly denying the fact by hi* plea, he had lost all credit, and ought not to- be received as a witness against others. (Fos- ter, 32, 33; Brooke's Corone, 42). This au- thority, cited by Lord Coke, does not warrant, or add the least sanction to his general rule, and the authority itself was afterwards over- ruled; and the court used to exercise its dis- cretion in sometimes refusing, and sometimes admitting persons to the liberty of approving, after the jury were sworn and evidence in part given. (Foster, 33, 34.) The same doc- trine advanced by Coke was afterwards en- grafted by Serjeant Hawkins (P.C., bk. 2, eh. 97, sec. 1), and by Mr. Justice Blackstone (Com., vol. 4, p. 360), into their elementary treatises on the criminal law; but their opin- ions rest solely upon the foundation of Lord Coke's authority. There is also a note in Carth., 465, in which it is stated to have been a resolution of all the judges of England, of which Ch. J. Holt was then one, that in capi- tal cases a juror cannot be withdrawn, even with the prisoner's consent, nor in any case, civil or criminal, without it. 1 With respect to the note in Carthew, it underwent a crftical examination in the case of the two Kinlocks (Foster, 27, 28), in the year 1746, and it was considered as a palpable mistake of the reporter. The case, as cor- rected by a MS. report of Ch. J. Eyre, was on an indictment for perjury; and on the trial, the prosecutor finding his evidence defective, insisted on withdrawing a juror, and Ch. J. Holt refused it, saying that in criminal case* a juror cannot be withdrawn, but by consent: *and in capital cases, not even with [*3O4r consent. This case, therefore, goes only in restraint of what was properly deemed an un- reasonable and oppressive claim on the part of the prosecutor. In the case of The King v. Jeffs (Stra. , 984), Lord Hardwicke followed this example of Holt. He refused, in a case of barratry, to permit a juror to be withdrawn on the motion of the prosecutor, after he had gone into proof, and found himself deficient, because the punishment annexed to that offense might be infamous ; but he said it might be, and had been done, in other cases of misdemean- ors. This, like the preceding case, controls ! an improper exercise of the power of the ! court, but does not deny its existence. It per- ' haps admits too much ; for to allow the prose- cutor, in any case, to withdraw a juror, be- cause he finds himself not fully prepared in his proofs, is an unreasonable indulgence, un- less it should be made to appear that some 1. In civil actions, the justices, upon cause, may discharge the jury. Bro. Inq., 39, 47, 68, &c., cited in 1 Tri. per Pais, 250. The fifth amendment of U. S. Constitution, provides that no person shall be twice put in jeopardy of life and limb for the same offense. This is not a limit iinon the State governments in relation to their own citi- zens. Fox v. State of Ohio, 5 How. U. 8., 434 ; Liv- ingston v. Mayor of N. Y., 8 Wend., 100. The con- trary, however, has been held in some cases. (See Commonwealth v. Purchase, 2 Pick., 521.) Most of the State constitutions have a similar provision, and the question has been much discussed how these provisions apply in case of a disagreement of the jury. It seems, however, to be the law now that in such case the judge can discharge the jury, and the prisoner be held for a new trial. Commonwealth 524 v. Purchase, above cited ; U. 8. v. Perez, 9 Wheat., 579; People v. Goodwin, 18 Johns., 187; People v. Green, 13 Wend., 55 ; Shaffer v. State, 27 Ind., 131 : Dobbins v. State, 14 Ohio St., 493; Lester v. State, 33 Ga., 329; Newton's case, 13 Q. B., 716. See, however, U. S. v. Gibert, 2 6umn., 19; Dye v. Commonwealth, 7 Gratt., 662 ; Commonwealth v. Cook, 6 S. and R., 577. As to how inability to agree is to be determined, see cases above cited. Powell v. State, 19 Ala., 577 ; State v. Walker, 26 Ind., 346. See, also, Commonwealth v. Eastman, ICush.. 189. In some of the above cases a distinction is made between misdemeanor and felony. JOHNSON'S CASE*, 2. 1801 THE PEOPLE v. OLCOTT. 304 part of the testimony was wanting, through the contrivance or agency of the defendant. It seems, then, that the position, generally denying the power of the court to discharge a jury sworn and charged in a criminal case, has originated (probably without further ex- amination or inquiry) from a dictum, to be found in the Institutes of Lord Coke, and that this dictum rests upon his single authority, without the sanction of any judicial decision. Xoue of the decisions go any farther than to prescribe a rule to the discretion of the court in particular cases. On the contrary, there are many authorities admitting and establish- ing the power of the court to discharge the jury, even in capital cases. In the case of Ferrars, cited in Sir T. Raym, 84, which was on an information for forgery, it is said to have been held by all the justices, that after a jury was sworn and charged in a capital case, they may be dismissed, or a juror withdrawn, though this was said to be con- trary to common tradition. Again, on a trial 3O&*] *for larceny, reported inl Vent., p. 69, after the jury were sworn, as the witnesses did not appear, and were suspected to have been tampered with by the defendant, the jury were discharged, and the trial put off ; and Sir John Strange produced the record of .a case of Hill., 8, sec. 7; Foster, 271, where, on an indictment for murder, the jury deliv- ered a verdict handed to them by the pris- oner, and they were in consequence of it dis- charged and committed, and the defendant tried again. In the spirit of these decisions, Sir John Holt(Salk., 646) admitted that even a new trial might be granted in criminal cases, if the verdict was obtained by fraud or trick ; and Sir M. Hale (P. C., vol. 2, p. 295), in di- rect opposition to Coke, says that the practice had, in his time, become ordinary for the <;ourt, after the jury were sworn and charged, And evidence given, if it appeared that some of the testimony was kept back, or that there might be a fuller discovery, and the offense as notorious as murder or burglary, to discharge the jury, and remit the prisoner for another trial. In the case of the two Kinlocks (Foster, 22 to 40), to which I have already alluded, the single point decided was that the court might, in a capital case, on motion of the prisoner's counsel and at his request, and with the con- sent of the Attorney-General, before evidence given, discharge the jury to let in a new de- fense which the prisoner could not otherwise have ; but the general question touching the power of the court to discharge jurors under- went a full and solemn discussion, and all the 'cases that I have mentioned were cited and examined. ,Ten of the English judges gave their opinions seriatim, and according to the elaborate and able argument of Sir M. Foster, which he has preserved entire, and which we may consider as the opinion of all the judges, except one, as all but one agreed in the same principles and result, the court came to this 3OG*] *decision that the general rule, as laid down by Lord Coke, had no authority to war- rant it, and could not be universally binding. That the question was not capable of being determined by any general rule, for that none could govern the discretion of the court, in all JOHNSON'S CASES, 2. possible cases and circumstances; and that the case in Carthew was of little or no weight, and must have arisen from a mistake in the re- porter. Sir M. Foster stated several excep- tions to the general rule of Coke, and said that many more might be mentioned. Among other instances, he admitted the right of the court to discharge the jury after evidence given, because the indictment did not suit the case, and had been mistaken by the prosecu- tor; and this power is also recognized in sev- eral of the books. (Comb., 401; Kelynge, 26, 52.) He further admitted the right of the court, in the cases stated from Ventris and Hale, where practices had been used to keep the witnesses out of the way; though he rep- robated, and very justly, the extent to which it had been carried, in other instances, where the evidence was not sufficient to convict. (St. Tr., vol. 2, p. 710, 827.) The instances in which the court has exer- cised its discretion in discharging the jury, have multiplied since the time of Foster, and have now become very considerable in point of number and importance. If a prisoner be found to be insane (1 Hale, 35), or in a fit (Leach, 443), or be taken in labor (Foster, 76), or if a juror escape from his fellows and go off (2 Hale, 296), or be taken in a fit, or be intoxicated; in all these cases it has been ruled that the court may discharge the jury, and re- mand the prisoner for another trial. The general rule, as laid down by Coke, and most of the cases on the subject relate to trials for capital offenses, and even there we have seen how far the rule has been justly ques- tioned, if not wholly done away; and the many exceptions which are conceded to exist against its universality. But the case now be- fore the *court , is a case of misdemeanor [*3O 7 only, and the precise question is, whether, in such case, it does not rest in the discretion of the court to discharge the jury, whenever they deem it requisite to a just and impartial trial. It is worthy of notice that there is no general rule, nor any adjudged case, denying this power in the court, in the case of a misde- meanor. The resolution of Holt, as it appears in its correct and authentic state in Foster, and the decision of Lord Hardwicke, only go to restrict the undue exercise of this power on trials for misdemeanors, by denying to the prosecutor the liberty of having a juror with- drawn, because he happens, after entering into his testimony, to find himself unprepared through his own fault; and even this extraor- dinary indulgence is granted, according to Hardwicke, if the punishment annexed to the offense be not infamous. If the qestion in capital cases be doubtful, there is nothing to render it so in cases of mis- demeanor. The power of the court in those cases is analogous to their power in civil cases; and they seem, in many respects, to possess the same control over the verdict, in exercis- ing the power of awarding new trials (6 Term Rep., 688; T. Jones, 163; 1 Lev., 9; 21 Vin., 478; Loft,, 147; 4 Bl. Com., 355; Ridg., 51; 1 Lev., 9); and taking a privy verdict (T. Raym. 193); and the party is also entiled to a writ of error, as a matter of ris;ht. (Laws of New York, vol. 1, 184.) I conclude, then, that as no general rule or 525 307 SUPREME COURT, STATE OF XEW YORK. 1801 decision that I have met with exists to the con- trary in a case of misdemeanor, and as the rule, even in capital cases, abounds with excep- tions, and is even questioned, if not denied by the most respectable authority, that of nine of the judges of England, it must, from the reason and necessity of the thing, belong to the court, on trials for misdemeanors, to dis- charge the jury, whenever the circumstances of the case render such interference essential to the furtherance of justice. It is not for me 3O8*J here to say *whether the same power exists in the same degree (for to a certain de- gree it must inevitably exist) on trials for cap- ital crimes, because such a case is not the one before the court; and I choose to confine my opinion strictly to the facts before me. With respct to misdemeanors, we may, with perfect safety and propriety, adopt the lan- guage of Sir M. Foster (p. 29), which he, how- ever, applies even to capital crimes, "that it is impossible to fix upon any single rule which can be made to govern the infinite variety of cases that may come under the general question touching the power of the court to discharge juries sworn and charged in criminal cases." If the court are satisfied that the jury have made long and unavailing efforts to agree; that they are so far exhausted as to be incapa- ble of further discussion and deliberation, this becomes a case of necessity, and requires an interference. All the authorities admit that when any juror becomes mentally dis- abled, by sickness or intoxication, it is proper to discharge the jury; and whether the men- tal inability be prod'uced by sickness, fatigue, or incurable prejudice, the application of the principle must be the same. So it is admitted to be proper to discharge the jury when there is good reason to conclude the witnesses are kept away, or the jury tampered with, by means of the parties. Every question of this kind must rest with the court, under all the particular, or peculiar circumstances of the case. There is no alternative; either the court must determine when it is requisite to dis- charge, or the rule must be inflexible, that after the jury are once sworn and charged, no other jury can, in any event, be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the court, to judge of that necessity, and to determine what combination of circumstances will create one. 3O)*] *There is an opinion given in an ancient book of approved authority (The Doc- tor and Student, dial. 2, ch. 52), which comes up fully to the case before the court. In answer to the 5th question of the Doctor, whether it stand with conscience to prohibit a jury meat and drink till they be agreed, the learned author (St. Germain) puts this answer into the mouth of the Student, "that if the case happen that the jury can in nowise agree in their verdict, and that appears to the jus- tices, by examination, the justices may, in that case, suffer them to have both meat and drink for a time, to see whether they will agree; and if they will in nowise agree, I think (continues the Student) that the justices may take such order in the matter as may seem to them, by their discretion, to stand with reason 526 and conscience, by the awarding of a new in- quest, and by setting a fine upon them, that they shall find in default, or otherwise, as they shall think best, by their discretion; like as they may do if one of the jury die before ver- dict, or if any other like casualties fall in that behalf." This power in the court, so far from impair- ing the goodness or safety of trial by jury, must add to its permanence and value. The doctrine of compelling a jury to unanimity by the. pains of hunger and fatigue, so that the verdict, in fact, be founded not on temperate discussion and clear conviction, but on strength of body, is a monstrous doctrine, that does not, as St. Germain evidently hints, stand with conscience, but is altogether repugnant to a sense of humanity and justice. 1 ^A verdict of acquittal or conviction, obtained under such circumstances, can never receive the sanction of public opinion. And the practice of for- mer times, of sending the jury in carts from one assize to another, is *properly con- [*3 1 trolled by the improved manners and senti- ments of the present day. So a verdict, obtained unfairly, by secret and artful, or bold and direct influence over the jury, by the parties, their friends, or by- standers, would, if admitted to be recorded, be a disgrace to the administration of justice. The power of discharging a jury, in these and other instances which might be enumerated, i a very salutary power, and calculated to pre- serve that mode of trial in its purity and vigor. In the present case, I cannot say the discre- tion of the court was unduly exercised. The jury had been out a long time, and had repeat- edly come into court and received its informa- tion and advice. They at last returned a ver- dict, which, for the present, I will assume to- be an imperfect one, on which no judgment could be given. They refused to give any other verdict, either general or special. In short, the jury, after being out from Saturday evening till the afternoon of the succeeding day, return and declare they cannot agree to- give any legal verdict. The circumstances constituting a case proper for the discharge of a jury, must be more accurately perceived, and more justly felt by the court before whom the trial is had, than by any other court. It must, therefore, be a pretty clear case of an abuse of discretion, to induce me to say the court below ought not to have discharged the J U1 T- I am, therefore, of opinion, on the first point, that the defendant ought not to be dis- charged. 2. The second ground on which the motion was made, is that the conviction ,of two per- sons is requisite to constitue the crime of con- spiracy; and Aborn being acquitted, and Roe being dead, the defendant cannot legally be convicted. But the case of The King v. Nicotts (Stra., 1227) is directly in point, that one conspirator may be convicted after the other is dead, be- fore conviction. This was *a determi- [*3 1 1 1. Mr. Emlyne, in his preface to the State Trials (p. 6, 7), exposes in strong 1 terms, the injustice and absurdity of starving 1 a jury into unanimity, in criminal cases. JOHNSON'S CASKS, 2.. 1801 JENKINS v. PEPOON. nation by the Court of King's Bench, and a subsequent case of The I&ng v. Scott and Names (3 Burr., 1262) is also in point, to show that the death of one of the number requisite to constitute the offence charged, will not pre- vent the conviction of the survivor. It was the case of a riot, in which three persons, at least, are necessary to constitute the crime. There were six persons indicted, two were ac- quited and two died before trial, and Lord Mansfield held that the two who were convic- ted must have been guilty, together with one or both of the persons who had died before conviction, and yet the conviction of the two survivors was held good. 3. The remaining ground of the motion is, that the verdict offered by the jury was a com- petent verdict of acquittal, and ought to have been received. The offence charged was a conspiracy to defraud the bank, and the verdict was, "that there was an agreement between Roe and the defendant, to obtain money from the bank, but with intent to return it again." This, however, is no answer to the substance of the charge, which was the unlawful and fraud- ulent intent to procure money from the bank. That finding leaves the truth or falsity of the accusation in equal uncertainty. The intent, afterwards, to return the money, might con- sist equally with a fraudulent or an innocent intent to procure the money, in the first instance. 1 This finding was, therefore, so imperfect, that had it been received, the court could not have given judgment upon it, and would have been obliged to award a venire de now. The jury ought to have found either a special verdict, stating the facts at large, and leaving the law to the court, or by a general verdict they ought to have affirmed or negatived the charge of a fraudulent in- tent. 312*1 *I am satisfied that this was no ver- dict of acquittal. If it had any operation, it would be against the defendant ; for, in answer to the indictment, the jury have found the fact that the defendant and Roe did agree together to obtain money from the bank, and they have not negatived the fraudulent intent. We are of opinion, therefore, on all the points, that the defendant ought not to be discharged. 2 Motion denied. Extended 18 Johns., 303. Cited in 9 Cow., 606 ; 13 Wend., 56 ; 15 Wend., 371 ; 18 Hun, 383 ; 48 Ho w. Pr., 545 ; 3 Park., 682, 3 Park., 43 ; 4 Park., 533 ; 1 Wheel., 174 ; 5 Daly, 492 ; 6 Daly, 194; 5 City H. Rec., 101, 104; 3 Cranch C. C., 576 ; 2 Sum., 47 ; 4 Wash., 408 ; 7 Otto, 526 ; 40 Wis., 33 ; 47 Wis., 543 ; 10 Mich., 245. JENKINS v. PEPOON. 1. Action on Judgment Oircuit Court United States Plea Writ of Error Demurrer. 2. Plea Writ of Error Abatement Bar Suf- ficiency of Supersedeas. To an action of debt on a judgment in the Cir- cuit Court of the United States for the District of 1. If a person do an act, the probable conse- quence of which is to defraud, it will, in contem- plation of law, constitute a fraudulent intent. (Ar- guendo, 3 Term Rep., 176.) 2. See State v. Woodruff, 2 Day's Cases in Error, 504. JOHNSON'S CASES, 2. Massachusetts, the defendant pleaded that the record of the judgment had been removed by writ of error, according to law, into the Supreme Court of the United States, wherefore he prayed judg- ment, &c. On demurrer, the plea was held bad. A writ of error pending may be pleaded in abate- ment, to a suit on the judgment; but the plea must be drawn with precision, and conclude clearly, in abatement, and not in bar. The plea must also state that the writ of error was brought bef ore the action was commenced on the judgment, and must show all those steps taken, which are re- quired by law, to make it a aupersedeas : as, in the present case, that a copy of the writ of error, for the advene party, had been lodged in the clerk's office within ten days after the judgment was rendered. Citations Dy., 32, pi. 5; L. Raym., 100; 3Bac. Ahr., 211; Carth., 1; ILd.Raym., 47; Skin, 590; 1 Lilly. Ent., 11 ; 13 Mod., 113 ; 3 Term. R., 186. This was an action of debt, on a judgment obtained in the Circuit Court of the United States for the District of Massachusetts. The plea stated that the record of the judg- ment was removed into the Supreme Court of the United States by writ of error, according to law, wherefore the defendant prayed judg- ment, &c. To this plea there was a general demurrer and joinder. Mr. Champlin for the plaintiff. Mr. Riggs, contra. KENT, J., delivered the opinion of the court: The ancient authorities lay it down as law that a writ of *error is no supersedeas [*3 1 3 to an action of debt, on a judgment. (Dy., 32, pi. 5; T. Raym., 100; 2 Bac. Abr., 211, and the authorities there cited.) But it has since been otherwise determined, and seems now to be settled that a writ of error pending may be pleaded in abatement, though it may not be pleaded in bar, to a suit on the judg- ment. (Carth., 1; 1 Ld. Raym., 47; Skin., 590 ; 1 Lilly's Entr., 11.) The plea, however, in the present case, is in several respects bad. It does not conclude, either in abatement or in bar. A plea in abatement is to be known by its conclusion (10 Mod. , 112), and requires great precision; but it is impossible to tell whether this was intended as a plea in abatement or in bar, though, perhaps, this objection is not good but on a special demurrer. (3 Term Rep., 186.)^ The plea does not state that the writ of error was brought prior to the commencement of the present suit, which is an essential aver- ment to render a plea of this kind good. (Carth., 1; 1 Lilly's Ent., 11.) Nor does it state the requisite steps taken to render a writ of error a supersedeas, even to an execu- tion on the judgment, under the act of Con- gress, which says that a writ of error is no supersedeas to an execution, unless a copy of it be lodged for the adverse party, in "the clerk's office, where the record remains, within ten days after judgment rendered. And, if it be no supersedeas to an execution on the judgment, there is no reason why it should abate an action of debt on the judgment. So, that on either of the two last grounds, we are of opinion that the plea is bad, and that judg- ment must be rendered for the plaintiff. Judgment for the plaintiff. Cited in 13 Wend., 516 ; 19 Wend., 222. 527 314 SUPREME COURT, STATE OF NEW YORK. 1801 .314*] * JACKSON, ex dem. BEACH, ET AI,., v. DURLAND. \ WUl Devisee Husband of, as Witness Competency Devise Void. 2. Id. Id. To Wife Use far Life Death of First Remain- der Man Survivor* Succession Vested In- terest In Possession. 3. Id. Id. Particu- lar Interest Failure of Condition Precedent Remainder Man Limitation Condition Sub- sequent. Where a husband is witness to a will containing a devise to his wife, such devise is void and the hus- band is a competent witness. A devised lands to the use of his wife for life, and to B in fee, and if he died bef ore arriving at full age, then to the sur- viving brothers of B in succession, if of full age, then to the first son of his niece M, and his heirs and assigns forever, and in default of such issue, remainder over to his own right heirs ; and directed that in case his wife should die before B or his surviving brother should be of age, then his niece M should take posession of the lands until his heir should be of age. The wife and niece of the tes- tator both died before B came of age. It was held that B had a vested interest in possession, on the death of the widow, and that the devise to the niece failed. Where the whole property is devised with a particular interest given out of it, it oper- ates by way of exception. Where an absolute property is given, and a par- ticular interest is given, in the mean time, as until the devisee comes of age, this will not operate as a con- dition precedent, but as a description of the time when the remainderman is to take possession. Where a precedent limitation, by any means what- ever, fails, the subsequent limitation takes effect. Citation 1 Johns. Cases, 163; 2 Mod., 293; Cro. Eliz., 878 ; Cases Temp. Talbot, 51, 52 ; 1 Burr., 228 ; 3 Term R., 41 ; 1 Eq. Cas. Abr., 195 ; Willes Rep., 293, 301 ; 1 Burr., 233 ; 1 Vesey, 422 ; 2 Bro. C. C., 396, 397 ; 3 Bro. C. C.. 397. This was an action of ejectment for land in Goshen, in the County of Orange. The following facts appeared from the special verdict, found at the circuit. Thomas Beach, being seized of the premises in question, on the 18th May, 1795, made his last will and testament, as follows : "I give my loving wife, Martha Beach, the use and benefit of the house I now live in, and all my lands and tenements, lying in the County of Orange, aforesaid, during her natural life. And I do also give her, &c. " I give and * devise to Thomas Durland, son of Joseph Durland, and to his heirs and assigns forever, all the lands that I am seized of at my death, lying in the County of Orange, or elsewhere; but if he shall not live to be of age, then I give the same, in like manner, to his surviv- ing brother, James Durland ; but if James shall die before of age, then I give the same, in like manner, to his surviving brother Charles ;but if Charles should die before of age, then I give the same to the first surviving law- ful son, born of my niece, Martha Durland, and to his heirs and assigns, forever; for default of such issue, then such estate to re main to my own right heirs forever. If my said wife shall die before the said Thomas Durland, or before his survivor be of age to take possession of the said lands, in that case I order that my said niece, Martha Durland, shall have the use and benefit of my said lands, until my heir shall be of age to take possession." One of the subscribing wit 528 nesses to the will was Joseph Durland, the defendant, who was, at the time, married to the testator's niece, * Martha Durland. 315*] The testator died the 22d May, 1795, leaving his wife, but no child or parent; leaving also two brothers and three sisters, besides his niece, Martha, and several nephews and nieces, children of his deceased brothers and sisters. Thomas Durland is still living, under age. Martha Beach, the widow of the testa tor. died the 27th October, 1795 ; and his niece, Martha, also died the 9th December following, and prior to the time of the demise laid in the declaration. The defendant, Joseph Durland, and his wife, lived on the premises with the testator, until his death, and with the widow, until her death, and the defendant has since remained in possession. The lessors of the plaintiff claim two third parts of the premises as heirs at law. The counsel for the plaintiff contended: 1. That the devise was void in toto, or at least so far as respected the devise to Martha ; because her husband was one of the witnesses to the will. 2. That upon the death of the widow of the testator, the estate descended, ad interim, to the heirs at law, until the arrival of Thomas Durland to full age. Messrs. 8. Jones, Jr., and Evertson for the plaintiff. Messrs. Harison and Troup contra. Per Curiam. The first point comes within the decision of this court in the case of Jackson, ex. dem. Cooder, et al. v. Wood. (See 1 Johns. Cas., 163.) It was decided in that case that a devise to the husband, in a will to which the wife was a subscribing witness, was void by the statute, equally as if the husband himself had attested the will; and that this arose from the unity of husband and wife, who were re- garded in law as one person ; and a devise to the one was considered, in respect to the competency to attest, as a *devise to [*316 the other. * The devise to the husband being void, the wife was held to be a competent witness. So, in the present case, the devise to Martha, the niece, her husband being a witness, is void, and her husband a competent witness to the will, which is valid, as to all its other dis- positions. The only real question, then, in the present case, is whether, upon the just construction of the will, Thomas Durland had a vested inter est, before he arrived at full age, so as to pre- vent the existence of any interim estate. Putting out of view the devise to Martha, the niece, the will contains a devise of the premises to the widow for life ; and then a de- vise of the same to Thomas, in fee, with a remainder over, in case he should not live to be of age. This is, obviously, creating a vested remainder in Thomas, and if the will had stopped here, there could be no room to doubt. The only difficulty that can arise, is upon that clause of the will containing the devise to the niece of the use of the land, after the death of the widow, until Thomas should be of age to take possession ; by which it would seem to be the intent of the testator, that JOHNSON'S CASES, 2. 1801 ALEXANDER v. BYRON. 316 Thomas should not take possession until he was of age. If that intent be manifest, and is to govern, then, as no valid disposition has toeen made in the mean time, the estate must -descend to the heirs, until the contingency happens. (2 Mod., 292; Cro. Eliz.,878; Cases .temp. Talbot, 51, 52.) But this case is analo- gous to those of Haywood v. Whitby and Wetdonv. Lea,. (1 Burr., 228; 3 Term Rep., 41; 1 Eq. Cases Abr., 195.) There is not a condition precedent, resting in contingency, but an absolute interest, vested in Thomas ; .und the will only denotes the time when the remainder is to take effect in possession. -(Willes'sRep., 293, 301.) The devise to the niece was an exception out of the absolute property devised to Thomas. In the case of Haywood, v. Whitby ( 1 Burr., 233 ), Lord Mansfield said it was a general rule 317*] that where the *whole property was devised, with a particular interest given out of it, it operates by way of exception out of the absolute property; and that where an absolute property is given, and a particular interest is given in the mean time, as until the devisee shall come of age, this should not operate as a condition precedent, but as a de- scription of the time when the remainderman :is to take possession. The rule in the con- struction of these conditional limitations, as laid down by Lord Hardwicke (1 Vesey, 422; 2 Bro. C. C., 396, 397), is the just and preva- lent one that if the precedent limitation (as in the present instance, the devise to the niece) is out of the case, by what means soever, the subsequent limitation takes place. This rule was adopted by Lord Thurlow in the case of Doe v. Brebant. (3 Bro. C. C., 397.) Here the devise to the niece failed. Thomas had a vested interest in possession on the death of the widow, and the intent of the testator was merely to provide that the mother of Thomas should be trustee, to take the profits after the death of his wife, and until Thomas was of age to take possession, and enjoy and act for himself. Thomas was the object of the testa- tor's bequest, and he never meant that the re- mainder should be contingent until he came of age, so that if he married in the mean time and died, his children could not inherit. We are of opinion, therefore, that the whole legal estate vested in Thomas on the death of the widow, and that the heirs-at-law have no title to the premises. Judgment for tlie defendant. Cited In 12 Hun, 622 ; 106 Mass., 475. 318*]*ALEXANDER . BYRON. Witness Regularly Subpoenad Failure to Ap- pear Admission of After Case Closed Discretionary New Trial Denied. Where a witness, who was regularly subpoenaed by the defendant, was out of the way when the trial of the cause commenced, and did not appear in court until after the testimony on both sides had closed, and the counsel for the defendant had pro- ceeded to sum up the evidence, and was then offered to be examined, but was refused by the judge, and a verdict was found for the plaintiff ; it was held .JOHNSON'S CASES, 2. N. Y. REP., BOOK 1. that the admission of the witness offered was alto- gether discretionary with the judge, who acted reasonably in refusing to admit him, under the cir- cumstances, and that a new trial ought not to be granted. Citations 2 Salk., 645, 753 ; 6 Mod., 222. THIS was an action of atummpsit on two promissory notes. Plea non assumpirit. At the trial the defendant set up the defense of usury. The trial commenced on Thursday, and lasted till Friday evening, and manv witnesses were examined on both sides, and a verdict was found for the plaintiff. A motion was made on the part of the de- fendant for a new trial, on the ground of a refusal by the court to permit a witness offered by the defendant to be examined. The witness was refused under the following circumstances: he had been subpoenaed long before the trial of the cause : he resided on York island, nine miles from the city, and had a counting-house in the city, where he usually attended to business. After being subpoenaed, the witness went to Philadelphia, and returned on the day the trial began, about one o'clock p. M., during the trial, and appeared in court in the afternoon of the same day, after the testimony on both sides had closed, and the counsel for the defendant declared they had done with the examination of witnesses, and had proceeded in summing up the cause. The witness was then offered, by the defend- ant, to prove positive confessions of the plaint- iff that he had never let out money on legal interest only. The counsel for the plaintiff objected to his admission, in that stage of the cause, and because the plaintiff and all his witnesses had left the court, and could not be procured in time for a new discussion of facts. The witness was according^ refused by the judge. Mr. Hamilton for the defendant. Messrs. Harison, B. Livingston and Troup, contra. *KENT, J. This is not a question on [*3 1 9 the propriety of the verdict, in respect to the evidence given. The facts are not stated in the case, nor any dissatisfaction- alleged with the verdict, upon the evidence received. We, therefore, cannot say or intend that the verdict is against evidence ; nor can we say how far this general confession of the plaintiff, if it had been received, would have varied the decision, because we have no lights by which the testimony can be compared. The question is, then, simply, whether it was the duty of the judge, under the circum- stances of the case, to have received the wit- ness at the time he was offered? It can never be claimed by either party, at trial, as a matter of strict right, to open the cause to proof, after full opportunity has been given to each side to be heard, and the testi- mony has been regularly, and by mutual con- sent, closed. It was, therefore, properly ad- mitted, iipon the argument of this motion, that the subsequent admission of testimony must rest upon the discretion of the court, duly exercised, according to the circumstances 34 529 319 SUPREME COURT, STATE OF NEW YORK. 1801 of the case. The parties must come to trial prepared, at their peril ; and if either party has any good excuse for not being prepared, he is entitled, of right, to a postponement of the trial. It has, therefore, repeatedly been held (2 Salk., 645, 753; 6 Mod., 222), that the subse- quent allegation of a party that he was not prepared, is no reason for granting a new trial, unless it be founded on the discovery of testi- mony of which the party was not, at the time, apprized. In the present case, the defendant was apprized of the testimony of the absent witness, for he had subpoenaed him, and it seems he was will- ing to hazard the experiment of a defense without him. It is not stated in the case, although it is probably the fact, and so I con- sider it, that the defendant did not know the 32O*] witness had arrived *from Philadelphia, until he came into court on the second day. But when he was offered, a long examination on each side had closed, and the counsel were commenting on the proofs. If, however, the plaintiff and his witnesses had been present, I think it would been reasonable to have exam- ined the witness. No injury to the plaintiff could have resulted. But after the counsel for the defendant had declared they had done with the examination of witnesses, and the plaintiff and his witnesses had, in consequence of it, left the court, it would then have been unreasonable to have received the witness, un- less the plaintiff with his witnesses, had been recalled. I do not think that witnesses are bound to stay, after the parties have declared they have done with the proofs ; for this is equivalent to a discharge of the parties. If the witness had been received, and had testified what he was offered to prove, it might have made a decisive change in the weight of the proofs. It would, in fact, have been a fresh trial of the cause ; and unless the plaintiff had full opportunity to have been present with his witnesses, to have repelled the testimony, if in his power, he would have just cause to com- plain, on the ground of surprise, and it would, perhaps, have been sufficient cause for a new trial, if the verdict, under such circumstances, had passed against them. I cannot, therefore, say, that in the present case the judge has not exercised a due dis- cretion. If the question was now for a new trial, on the merits of the case, the facts stated might probably have their influence upon the determination ; but as the merits are not before us, we are confined by the case to the simple question, whether, under the circumstances, herein stated, the judge was bound, in sound discretion, to have received the witness. I am of opinion that the motion ought to be denied. #21*] *LANSING, Ch. J., and LEWIS, J., were of the same opinion. RADCI.IFF, J., was absent. Mule granted. 1 Distinguished 6 Wend,, 281. Cited in 9 Johns., 78 ; 9 Cow., 68 ; 5 Denio, 288 ; 1 Johns. Ch., 433; 31 How. Pr., 463; 13 Abb., 3. 1. See Edwards et. al. v. Sherratt, I East, 604. 530 JACKSON, ex dem. POTTER ET AI,., SISSON. 1. Patent For Lands " Three Persons and Associates" Tenants in Common Legal Es- tate. 2. Ejectment Equitable TitleLegal Estate A patent for certain lands was granted to A, B and C for themselves and their associates, being- a settlement of Friends on the west side of Seneca Lake, to have and to hold the same to A, B and C, as tenants in common, and their associates ; it was held that no legal estate vested, except in the three per- sons named in the patent. An equitable title cannot prevail in ejectment, against the legal estate, especially if such equitable estate be dubious. (note) ; 2 Term R. 684 ; 7 Id., 43, 47 ; 8 Id., 2, 122. s an action of ejectment for lands in JL the town of Jerusalem, in the county of Ontario. The declaration stated, 1. A demise, by William Potter, for lot No. 16, in the gore land granted by letters patent to James Parker, William Potter and Thomas Hathaway, and their associates ; 2. A demise by the above three persons and five others. On the trial at the Ontario circuit, in June, 1800, the defendant admitted himself to be in possession of lot No. 16, and the lessor of the plaintiffs produced the letters patent for the premises in question, bearing date the 10th day of October, 1792, by which the same were granted, by metes and bounds, to James Parker, William Potter, and Thomas Hathaway, for themselves and their associates, being a settle- ment of Friends, on the west side of the Seneca Lake ; to have and to hold the same unto the said three persons, as tenants in common, and not as joint tenants, for themselves and their associates, as aforesaid, in fee. The plaintiff then produced a deed from James Parker and Thomas Hathaway, bearing date the 16th August,* 1793, con- [*322 veying to William Potter, in fee, for a valuable consideration, lot No. 16, aforesaid. The defendant then offered sundry letters from James, Parker, one of the patentees aforesaid, between the 17th October, 1787, and the 4th March, 1788, addressed generally to Universal Friends, and relating to the settle- ment of the Friends on the west side of the Seneca Lake. He also offered three petitions from James Parker, in the name of the settle- ment, and addressed to the commissioners of the land office, bearing date in April and May, 1791, respecting the purchase of lands of which the premises are a part, and an accept- ance of his proposal by the commissioners of the land office, at a meeting held on the 9th May, 1791. The contract with the commissioners was fulfilled by the society, of which James Parker appeared to be the principal member, on the 29th February, 1792. By another letter of James Parker, addressed to the commissioners on the 15th September, 1792, he stated his former contract with the commissioners for 12,000 acres of land, for himself and his asso- JOHNSON'S CASES, 3. 1801 JACKSON, EX DEM. POTTEK, ET AL. v. SISSON. 322 ciates, and named the other two patentees, and the present defendant. The Community of Friends met on the 27th October, 1791, among whom was William Pot- ter, one of the lessors of the plaintiff. They came to sundry resolutions, by which they appointed the other two patentees, above named, a committee, to receive the contract from Parker, and to indemnify him for his contract with the commissioners of the land office, and compensate him for his trouble ; and directed the members of the community to pay their proportion of the expense of the lands, and that they should receive land in proportion to their advances. The defendant paid $20 to William Potter, on the 22d November, 1791, towards his pro- portion of the purchase money of the lands ; and he paid, at another time, $7.50. At the 323*] time the letters *patent issued, there was a settlement of Friends on the land con- tained in the patent ; and the defendant was one of that society. There were then offered in evidence, on the part of the plaintiff, sundry resolutions of the society, and among others, a resolution made at a meeting on the 15th August, 1793, at which the defendant was present, and by which it was resolved that the lands should be divided into twelve parts ; and the same was done accordingly, and ballots were drawn, with the approbation of the meeting, by which lot No. 16, being the premises in question, was included in class No. 10, and fell to William Potter, one of the lessors of the plaintiff; and the defendant had allotted to him an interest in class No. 5, containing two lots. The de- fendant advanced only $37.50, and the said William Potter about $2,000, or above a moiety of the whole purchase-money. Upon these facts, a verdict was taken for the plaintiff, by consent, subject to the opinion of the court, as to the competency and suffi- ciency of the evidence above stated. Mr. Emott for the plaintiff. Mr. Riggs, contra. KENT, J. I shall confine myself to one or two points, which appear to be sufficient to determine the cause. There was no legal estate created by the patent, but what. vested in the three patentees named. The description of the association, by the words, ' ' a settlement of Friends, on the west side 6f the Seneca Lake," was too vague and uncertain to constitute a competent grantee at law, or a cestui que use, whose estate the statute would transfer into possession. (Saunders on Uses, 63, 128.) This would be like a grant to the parishioners, or inhabitants 324*] *of a dale, or to the commoners of such a waste, or to the churchwardens of a parish, which are held to be void grants. (Shep. Touch., 235, 236.) But the grant from the State is not to the three patentees named and to their associates. It is to James Parker, William Parker and Thomas Hathaway, for themselves and their associates, being the set- tlement aforesaid ; and therefore, from the words of the grant, as well as from the uncer- tainty of the description, it is evident the asso- ciates had only an interest in equity; and that JOHNSON'S CASES, 2. Parker and the others were vested with the legal estate, as trustees for the association. What, then, are the equitable rights of the associates, and how far the trust has been executed by the grantees, are questions that do not belong to this court to decide, nor shall I undertake to give any opinion upon them. A court of law is incompetent to settle the complicated and interfering interests of the parties to the trust. Our duty is, therefore, to look to the legal estate, and to give it effect. But it is said that this court ought to look so far to the equitable rights of the parties as to protect a cestui que trust, in possession, against the legal estate of his trustee. There are several cases in which courts of law have recognized and helped the equitable estate of a party; but in those cases the equit- able interest was clear and precise. In the case of Lade v. Holford (Bull. N. P., 110), the principle decided by Lord Mansfield was that where the beneficial occupation of an estate may possibly suppose a conveyance to the per- son equitably entitled to it, the jury may be directed to presume one. This doctrine, how- ever, proceeds on the ground of the conclusive efficacy of the legal estate in a court of law; and it has accordingly received the subsequent, approbation of Lord Kenyon (2 Term. Rep. , 696 ; 8 Term Rep., 122), who has taken great pains to preserve unimpaired the marked boundaries between the courts of law and of equity. In the *case of Armstrong, [*325 ex dem. Tinker, v. Pierce (3 Burr., 1901), the Court of King's Bench looked upon it as a set- tled point that the formal title of a trustee should not, in an ejectment, be set up against the cestui que trust, because, from the nature of the two rights, the cestui que trust is to have the possession. This position does not apply to the present case, because it does not appear that the defendant was to have possession of the premises in question. And, besides, the position is too general. It requires, and always has received qualification, in its appli- cation to the particular cases; for the Court of King's Bench afterwards, in the cause of Goodtitle, ex dem. Estwick, v. Way (1 Term Rep., 737), observed that the only cases where the principle had been adopted were such in which the lessor of the plaintiff had been clearly and unequivocally a trustee for the defendant; and it would have been, of coiirse, for the Court of Chancery to have decreed a conveyance to him ; and in that case, as it was at least a doubtful equity which the defendant set up against a legal title, the court would not inter- fere. Again, in the case of Doe, ex dem. Bris- tow, v. Pegge (1 Term Rep., 758, in note), it was decided that where a legal term was created for a particular purpose, if the pur- pose was satisfied, or if it was unsatisfied and not connected with the litigating parties, it should never be set up against them in eject- ment. It is obvious that this case does not apply, for here the trust itself is the thing in litiga- tion, and these are the strongest decisions that have regarded and given effect to equitable titles, in an action of ejectment. Even this latter decision has since been receded from, and the party clothed with the legal estate, has 531 825 SUPREME COURT, STATE OK NEW YORK. 1801 repeatedly been permitted to prevail against any equitable title (2 Term Rep., 684; 7 Term Rep., 43, 47; 8 Term Rep., 2, 122); and the only way in which it can now be assisted is, by permitting the jury, in certain cases, to 326*] presume the *legal estate not to exist any longer out of the cestui que trust. Whether this court ought to follow the former or the latter decision, it will be in sea- son to determine when the question arises. At present, it is sufficient to say that no case goes so far as to permit an equitable claim, so involved and dubious as the present one which is litigated between the parties, to prevail against the legal estate. 1 I am of opinion, therefore, that the verdict for the plaintiff ought not to be disturbed. LANSING, Ch. J., was of the same opinion. LEWIS, J., was of opinion that a good estate in law was vested in Parker and his associates, under the patent, according to the description; but he agreed that the plaintiff was entitled to recover, as tenant in common. RADCLIFF, J., was absent. Judgment for the plaintiff. Cited in 8 Johns., 388, 488 ; 5 Barb., 146 ; 72 Penn., 314. 327*] *FOSTER t>. HOYT AND TOM. Marine Insurance Commissions of Master Insured in Agents Name Total Loss Action Against Broker Set-off Agent's Debt. A, the master of a vessel, directed B as his agent, to get his commissions as master insured, and C, the broker, had the policy effected in the name of B on the commissions of the master, who was named in the policy, and the agency of B was known to the broker. A total loss naving been recovered by the broker, A brought an action against him for the amount of the money received ; and it was held that the broker had no right to retain it for a debt due to him from B the agent. Citation 7 Term R., 360. THIS was an action of assumpsit for money had and received. A verdict was taken for the plaintiff for $500.72, subject to the opinion of the court, on a case stated. John Saunders, as agent of the plaintiff, employed the defendants, who are insurance brokers, to effect an insurance for the plaint- iff; on his commissions, as master of the sloop Clermont, on a voyage from New Fields, in Connecticut, to Martinique. The defendant accordingly caused an insurance to be made, by a policy, dated 23d April, 1799, in the name of Saunders; but on the captain's com- missions on goods, on the voyage above men- tioned, and the plaintiff was specified to be the master. The commissions were valued at $600. The letter of the plaintiff to his agent, directing the insurance, said, it was in part for the agent. A total loss ensued, and the agent delivered the policy to the defendants to collect, with orders to pass the net amount, when received, to his credit with them, on 1. See Jackson, ex dem. Simmons et al. v. Chase 2 Johns. Rep., 84) ; Jackson, ex dem. Smith et cU.v. Pierce, 2 Johns. Rep., 231 ; 5 East, 138. 632 condition that the defendants did not recover a debt due the agent, and which they were prosecuting in Connecticut, towards paying a balance due them from the agent, and if they did recover the debt, &c., then with orders to pay the net amount to him. The debt was recovered by the defendants. When the agent delivered 'the policy to the defendants to collect, the plaintiff owed him $45.50, on book account, and $200 by a prom- issory note. The note the agent soon after passed away; and it was notorious, at the time of the delivery of the policy, that the agent was insolvent. The defendants recovered for a total loss on the policy, the net amount of which was equal to the verdict found, *after deducting [*328 their charges, and the book debt of $45.50. The balance still due to the defendants from the agent, is equal to the amount of the verdict, and the question is, whether thev are entitled to retain it against the claim of the plaintiff. Messrs. Troup and B. Livingston for the plaintiff. Mr. Hanson, contra. KENT, J., delivered the opinion of the court: The defendants knew Baunders in this trans- action only in the capacity of agent for the plaintiff, whose exclusive interest appeared evidently on the face of the policy. This is not like the case where the principal is masked, and the agent acts as the ostensible principal. (7 Term Rep., 360.) In that case, it is admitted that whoever deals with the agent has a right to consider him as the prin- cipal, and to regulate his claims accordingly. Here the defendants appear to have acted under a full knowledge of the relation between Saunders and the plaintiff. The only circum- stance that could raise any possible doubt in the case, is the observation in the plaintiff's letter. " I beg you will not neglect me, as it (meaning the insurance) is for yourself in part." But whatever may be the meaning of this note, it does not appear to have been disclosed to the defendants, or if it was, that they acted under its influence, or that it was true in point of fact that Saunders had any interest in the commissions. It is possible the letter had reference only to the interest which Saunders, as a creditor of the captain, mu.st have had in the success of his voyage. When the policy was deposited with the defendants for collec- tion, the agency under which it was originally effected, the plaintiff's sole interest as master of the sloop, and what appeared on the policy, were known to *the defendants; and [*329 under these circumstances, there cannot be any just pretense to permit them to consider the agent as a principal, and to set off their claim, founded on other matter against Saunders, to a suit by the plaintiff. The money was received, by intendment of law, for the use of the plaintiff; and the defendants are bound in equity and good conscience to refund it. Judgment for the plaintiff accordingly. ' Cited in 6 Paige, 588 ; 1 Bos., 566. 1. See Marshall on Ins., 301, 303, 2d ed.: 1 East, 3*5. JOHNSON'S CASES, 2 1801 HOLMES v. TOE UNITED INSURANCE COMPANY. HOLMES *. THE UNITED INSURANCE COMPANY. 1. Marine Insurance On Cargo By Agent As Interest Might Appear Over Valuation Return of Premium. 2. Partnership What Constitutes. A policy of insurance was effected on the cargo of a ship from Calcutta to Baltimore, by A, as the agent of B, and for his account. The policy was in the name of A generally, for 835,000, as in- terest might appear. The cargo belonged to B. and four other persons, and was purchased with the proceeds of the outward cargo. B carried on busi- ness for himself, and was unconnected in trade with the other persons, who knew nothing of the in- surance. The proportion of the return cargo be- longing to B, in fact, amounted only to about $13,- 000. B brought an action fora return of premium, for the difference of the sum subscribed to the policy and the amount of his interest ; it was held that B and the four others were not partners, and that B was entitled to recover back the premium for the amount of his interest overvalued in the policy. Citations Park, 367 ; Watson, 1, 5; 1 Doug.,371 ; 2 Black. R., 998 ; 1 H. Black., 48 ; Id., 37. THIS was an action of msumpnit for a return of premium, on a policy of insurance. In December, 1796, Gouverneur and Kemble, as agents for the plaintiff, effected an insur- ance on the cargo of the ship George and Patty Washington, to the amount of $25,000. interest as may appear, at and from Culcutta to Baltimore ; and the defendants accordingly underwrote the policy, to the amount of $25,- 000, on the cargo generally, in the name of the agents. The premium was seven per cent., amounting to $1,750.25, and was paid to the defendants on the 6th August, 1797. The cargo of the ship belonged to the plaintiff and four other persons, and was purchased with the proceeds of the outward cargo, which also be- longed to the same persons. One eighth of the ship, and of the outward and return car- 33O*] goes, belonged to the plaintiff, *who carried on business for himself, unconnected in trade with the other four persons. The other four persons had no direction or concern in the insurance, or any other insurance effected by the plaintiff. The plaintiff's in- structions to his agent were to effect insurance to $25,000 on the cargo of the said ship, on his account. The whole cargo of the ship amounted to $103,439.54, of which the plaint- iff's one eighth, were $12,929.94, so that $14,- 200 would cover the interest of the plaintiff and the premium, &c. The plaintiff directed the supercargo of the ship to apply at Calcutta for a credit for him, and to make a shipment. But the supercargo did not obtain credit, nor make any shipment other than the plaintiff's share above mentioned. The plaintiff claimed for a return of premium, on the difference between the subscription of the defendants, and the interest of the plaintiff, amounting to L.52. The ship arrived safe at Baltimore. NOTE. Marine insurance, return of premium. Compare Delavigne v. United Ins. Co., 1 Johns. Gas., 310; Juhel v. Church., post, 333; also, Stein- back v. Rhinelander, 3 Johns. Cas., 269. Partnership, wliat constitutes. Compare Post v. Kimberly, 9 Johns., 470; Cumpston v. McNair, 1 Wend., 457 ; Sage v. Sherman, 2 N. Y., 418 ; Heim- street v. Rowland, 5 Denio, 68 ; Pattison v. Blanch- ard, 5 N. Y., 186. JOHNSON'S CASES, 2. Mr. S. Jones, Jun., for the plaintiff. Mr. Troup, contra. KENT, J., delivered the opinion of the court: There is no doubl, but that if property be insured to a larger amount than the real value, the overplus premium is recoverable by the assured, because the insurer shall not receive the price of a risk which he has not run. On the other hand, if the risk has once com- menced or existed, there shall not be any return of premium, as the consideration for it ha* then been given. (Park, 367.) The recovery in the present case, therefore, depends on the solution of the question whether the other persons interested in the cargo could, in case of loss, have covered any part of their interest under this policy. *If they could not, [*33 1 then the defendants have run no risk beyond the amount of the plaintiff's interest on board; and I think, from the facts before me, thai such must be the conclusion of law. To constitute a partnership, by which the act of one will bind or inure to the benefit of the rest, there must be a reciprocal choice and agreement of the parties to unite their stock, and to share in all risks of profit and loss. (Watson, 1, 5; 1 Doug., 371; 2 Bl. Rep., 998.) They must not only be jointly concerned in the purchase, but jointly concerned in the : future sale. (1 H. Bl., 48.)' In the case of | Hoare v. Datces (1 Doug., 371), a broker was employed by a number of persons to purchase | a lot of tea, of which each was to have his separate share; and he purchased the lot of | tea for the benefit of his employers ; and it was i held they were not partners in the tea, because j there was no undertaking by one to advance ! money for another, nor any agreement to share with one another in the profit or loss. And ; Lord Mansfield observed that it would be most i dangerous, if the credit of a person who en- : gages for a 40th part, for instance, should be ! considered as bound for all the other parts. ! And in the case of Coope et al. v. Eyre et al. \ (1 H. Bl., 37), several persons entered into an I agreement to purchase a quantity of oil, in the i name of A only, and to take aliquot shares of | the purchase ; but as it did not appear that they were jointly to resell the goods, they were held not to be partners. There was no communi- cation between the buyers as to the profit or loss. Each party was to have a distinct share, and to manage it as he judged best; and of consequence, the profit or loss of the one. might be more or less than that of the other. In the present case, there is no evidence of any agreement or communication between the parties, as to profit or loss, but what arises as a matter of intendment, from the fact that the cargo of the ship belonged to the *plaintiff and four other persons, and [*332 was purchased with the proceeds of the out- ward cargo, which also belonged to the same persons. To repel this inference, we have the other fact found, that the plaintiff carried on business for himself unconnected in trade with the other persons; and that the present insur- ance was made for himself, and that the other persons had no direction or concern therein. It is a strong and decisive fact in this case, that there was no agreement between the par- 533 332 SUPREME COURT, STATE OP NEW YORK. 1801 ties to share in the future sale of the return cargo; and the presumption is directly other- wise, since the parties were unconnected in trade. This brings the case within the decis- ion in Coope et al. v. Eyre et al. The parties were not, in fact, partners, as amongst them- selves, nor did they professedly act or appear as such. The plaintiff appears to have acted with candor, and to have directed an insurance on his own account, as interest should appear. The over valuation must have originated in mistake in too high an estimate of the result of the outward cargo, and in the expectation of an additional cargo to be procured on credit at Calcutta. We are, therefore, of opinion that the plaint- iff was not a partner, and that he is conse- quently entitled to the return of premium, as liquidated in the case. Judgment for the plaintiff. Cited in 1 Johns., 117 ; 9 Johns., 485 ; 1 Wend., 463 ; ! 47 N. Y., 206. 333*] *JUHEL AND DELONGUEMERE v. CHURCH. Marine Insurance Profits Policy to be Proof of Interest Wager No Cargo Return of Premium. A having chartered a ship to bring a cargo from the Spanish Main to New York, effected a pol- icy of insurance on the profits, valued at $12,000 ; no other proof of interest to be re_quired but the" 1 policy ; and if the goods did not arrive, the insured was to recover for a total loss ; and the goods were warranted free from average and without benefit of salvage to the insurer. The vessel finding no cargo at the Spanish Main, returned to New York, in ballast, without any goods. A brought an action against the insurer for a return of premium ; and it was held that the insurer having run the risks enume- rated in the policy, and the ship having returned in safety, A was not entitled to a return of premium. Citations Doug., 468; Park, 259; 3 Term R., 266. THIS action was brought for a return of premium. At the trial, a verdict was found for the plaintiffs, subject to the opinion of the court, on a case; and if the court should be of opinion against the plaintiff s, a judgment of nonsuit was to be entered. The plaintiffs chartered the ship Three Sisters, to bring a cargo of wines from the Spanish Main to New York; and had insured, by a valid policy, $12,000, on goods, for the voyage. But although in the printed part of the policy the same was stated to be on goods, yet by a memorandum, in writing, at the bot- tom of the policy, it was declared to be on profits, and that no other proof of interest was NOTE Marine Insurance, return of premium. If the risk has actuattj/ attached but for a moment there can be no return of premium. Hendricks v. Com. Ins. Co., 8 Johns., 1 ; Waters v. Allen, 5 Hill, 421 : Savage v. United Ins. Co., 3 Johns. Cas., 558 ; Crowningshicld v. N. Y. Ins. Co., 3 Johns. Cas., 142 ; Compare Holmes v. United Ins. Co., ante 329; Dela- yigne v. United Ins. Co.,1 Johns. Cas., 310, and notes in this ed. As to when rittk ix divUsOile, see Waters v. Allen, above cited : Ogden v. Firemen Ins. Co., 12 Johns., 534 to be required than the policy, and that if the goods did not arrive, the assured was to re- cover for a total loss: and the same was war- ranted free from average,and without benefit of salvage to the insurer. The ship found no cargo at the Spanish Main, and returned to New York in ballast, without any goods whatever. Mr. B. Livingston, for the plaintiffs. Mr. Pendleton, contra. KENT, J. I consider this as a wager policy. It has the indicia of a wager policy, as they are pointed out by the cases on the subject. (Doug., 468; Park, 259.) Here was to be no other proof of interest required than the policy itself; and if the goods did not arrive, the insurer was to pay. It was, in fact, betting on the return of the ship; and if she had not returned, in consequence of any peril enume- ratedtin the policy, the plaintiff would, on its production, have been entitled to the sum insured. *As the plaintiffs claim a return of [*334 premium, it has been made a question whether this be a valid policy. If it be unlawful and consequently void, on the ground of its being a wager policy, the assured is not entitled, at any rate, to a return of premium, for in pari delicto potior est conditio posmtentin. It was so decided in the cases of Lowry v. Bourdieu (Doug., 468), and Andre v. Fletcher. (3 Term Rep., 266.) But supposing the policy to be good (and I wish not to be understood as inti- mating any opinion to the contrary), I am equally of the opinion that the plaintiffs are not entitled to recover; because the defendant has run a risk, which is the consideration for the premium. I consider this policy as amount- ing to a bet on the return of the ship. If she had not returned, and the plaintiffs could have shown that it was in consequence of some peril, within the purview of the policy, they must have been entitled, as a matter of course, to the sum insured, without proving any interest or goods on board. The defendant must, therefore, be considered as having run the risk of the ship, during the voyage. But as the ship returned in safety, I do not consider him responsible, because the goods did not ar- rive. It could never have been the meaning of the parties that whether the ship did or did not arrive, the defendant was, at all events, to pay the $12,000. This would be a contract without any reciprocity, and altogether absurd. The plaintiffs, by the form of this action, have given a different'interpretation to it. The pol- icy enumerates a variety of perils or risks, which the defendant assumed to run; and there must have been some subject to which they could be applied, and this, in the present case, could be no other than the ship. When, there- fore, the policy says that no other proof of inter- est was to be required than the policy, and that if the goods did not arrive, the assured was to recover, its meaning was that if the ship did not arrive in consequence of any peril men- tioned, the assured was to recover the value of his *profits, without proving any goods [*33<> on board, from which the profits were to arise. As the defendant has, therefore, run the risk intended by the policy, I see no pretense JOHNSON'S CASES, 2. 1801 CORPORATION OF NEW YORK v. DAWSON. 335 for a return of premium, and nonsuit ought to be entered. RADCMFF, J., and LEWIS, J., same opinion. LANSING, Oh. J., dissented. Judgment of nonsuit. Reviewed 6 Cow., 331. exercised a criminal jurisdiction. But with- out giving any opinion what would be the case with respect to other Indians, we think that the Brothertown Indians are clearly subject to our laws, and to the jurisdiction of this court. Cited in-47 Wis., 294. JOHNSON'S CASES, 2. [END OF JULY TERM.] CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE STATE OF NEW YORK, OCTOBER TERM. IN THE YEA.R 18O1. [On Wednesday, the 28th October, LANSING, Ch. J., was appointed Chancellor, and LEWIS, J., was appointed Chief Justice in his stead.] 346*] *PALMER, ^ torn, &c., . DONEY. 1. Excise License Irregularly Granted Void Tavernkeeper Statute. 2. Id. Id. Ir- regularly Gh'anted Expiration Sale After Before Regular Meeting. In an action qui tarn for the penalty given by the Tavern Act for retailing strong liquors, without a license, it was held that a license granted by two of the commissioners of the excise, without the pres- ence or consent of the supervisor, and when they were not assembled for the purpose of granting li- censes, was illegal and void ; and such a license, though regular on the face of it, is no justification of the tavern keeper, who is liable for the penalty. But a tavern keeper who has a legal and competent license, is not liable for the penalty for retailing liquors after his license has expired, and before the time of the next meeting of the commissioners of excise, for the purpose of granting licenses. Citation 4 Term R., 451 ; 5 Term R., 19. was an action of debt, for several pen- - alties alleged to be incurred under the act to lay a duty of excise on strong liquors, and for the better regulating inns and taverns. The defendant, on the 8th day of April, 1799, applied to the plaintiff, who was super- visor of the town of Ballstown, and two justi- ces, White and Waters, then sitting as com- missioners under the act, for a license to retail spirituous liquors for the purpose of keeping 347*] *an inn or tavern. The defendant paid White, one of the justices, five dollars, the sum required for such license; who, without the assent of the other commissioners, received the same, and paid it over to the overseers of the poor of the town. The two justices had given the defendant encouragement to expect a license, but the plaintiff and Waters after- wards refused it. The defendant sold liquors both before and after the 8th day of April. On the 3d day of May ensuing, the plaintiff, with White and Ball, justices, being met to canvass the votes taken at the preceding elec- tion for senators, &c. , the defendant renewed his application, which was rejected by the plaintiff, on the ground that they were not then assembled as commissioners under the act. But White and Ball retired into another room, and gave the license required. The judge who tried the cause, suffered this license, though objected to, to be given in evidence, JOHNSON'S CASES, 2. and charged the jury that, though irregularly obtained, it was sufficient to protect the de- fendant, as a third person; and that it should, by relation, be considered as having been given on the 8th day of April preceding; and that, as there had been no board of commissioners between the 1st day of March (on which day all permits expired) and the 8th day of April, the defendant was justified, ex necessitate, in continuing to retail spirituous liquors, during such interval. They accordingly gave a ver- dict for the defendant. The plaintiff now moved to set aside this verdict, on the ground of a misdirection. Mr. Wbodworth for the plaintiff. Mr. Foot, contra. LEWIS, J., delivered the opinion of the court: This prosecution appears to be a hard one against the defendant. *Having paid [*348 for a license, and two magistrates having con- sidered him properly qualified for an inn- holder, we are at a loss to discover the motive of it. On the argument, I thought the law with the defendant, on all the points raised: and could my opinion be controlled by my wishes, I should think so still. But on reflec- tion and examination, we all believe the charge to be incorrect, in one important particular, and the verdict, of course, wrong. The point to which I allude, is the protection set up under the license of the 3d of May, which we do not consider such as the act requires. Two ques- tions arise: 1. Is the license a legal one ? 2. If not, is the defendant nevertheless protected by it ? By the second clause of the act, the authority* is given to the supervisor and any two justices ; and by the proviso to the same clause, no license is to be granted unless three commissioners shall be present at the granting thereof. Now it is stated in the case that White and Ball retired from the room where the supervisor was, and signed and delivered the license, &c. Three commissioners, then, were not present at this part of the ceremony, and it does not appear that even a majority, when the three were together, granted, or even agreed to grant a license ; so that the act has, in no way, been complied with. Another objection is that Ball does not ap- 539 348 SUPKEME COURT, STATE OF NEW YOKK. 1801 pear, from the case, to have been legally a commissioner of excise for that year. For the jurisdiction is vested in the supervisor and any two justices ; and of course, though every jus- tice resident within the town might, perhaps, have attended the first meeting ; yet as White and Waters only did attend with the super- visor, the jurisdiction attached exclusively to them. (4 Term Rep., 451.) One further objection occurs : It is at least a question whether any jurisdiction of excise vests in the justices, until noticed by, and as- sociated with the supervisor. This is certain- ly the case where, for default of resident jus- tices, others are to be resorted to. Now, it 349*] does not *appear that Ball resided within the town, or was ever notified by, and associated with, the supervisor; and the pre- sumption is against it, from his not having at- tended the first meeting. If either of these reasons be sound, the license set up as a justi- fication is illegal, from a want of authority to grant it ; and the only remaining question is, whether it was, notwithstanding, a competent defense to the defendant. If the objection to it rested on the ground of irregularity alone, its incompetence might be doubted ; but it goes to a want of jurisdiction, or power to grant, in the justices who signed it ; and the defendant is certainly liable to the penalty, if his license is not derived from the competent authority. He knew all the circumstances, and the precise situation in which the two magistrates who signed his license stood ; and he is bound to know that his license is derived from a pure and legal source before he acts under it ; at least, there ought to be strong color of right on his side. In the case of Col- craft v. Gwbs (5 Term Rep., 19), on a penalty under the game laws, a verdict for the defend- ants was set aside, on the principle that the power of appointing a game-keeper is insepa- rable from a manor ; though it was shown by Gibbs that he was appointed game-keeper by Roebuck, who had purchased an estate in the manor, and had stipulated for the deputation with the plaintiff, who was lord of the manor. We are, therefore, of opinion that the verdict mast be set aside, and a new trial awarded ; but that on such trial no testimony of any forfeiture, previous to the meeting of the com- missioners on the 8th of April, be admitted ; for public inns being for the public conven- ience, a traveler is not to be barred the neces- sary refreshments they afford, from the neglect of public officers. New trial granted. Cited in-1 Johns., 501 ; 14 How., 278 : 7 Abb., 36. 35O*] *JACKSON, ex dem. STAATS, ET AL. CAREY. Spring-field Patent Construction of. What is the true construction of the patent of Springfield ? The third course given in the descrip- tion is to be run so as to strike the Otsego Lake at the nearest point, at the distance given, without re- gard to the course taken, and so as to preserve the subsequent courses. 540 THIS was an action of ejectment for lands in the County of Otsego. The lessor of the plaintiff claimed the premise* in question, which lie in the County of Otsego, as being within the bounds of the patent of Springfield ; and the case turned on the con- struction of that patent. The words of the patent material in the present instance, are as follows: "All that certain tract, &c., on the south side of the Mohawk River, and on the bank of a lake, &c., beginning at a black oak tree, &c., and runs thence N. 61 deg. E., 110 ch., thence, N. 60 deg. W. 464 ch. ; thence, S. 30 deg., W. 450 ch., to the aforesaid lake, then along the banks of the said lake, easterly and southerly, to a large birch tree, &c., at which tree a point of land jutting into the lake bears from it, N. 35 deg. W., thence N. 72 deg. E. 298 ch., to the W. corner of the land granted to John Lindsley and others ; then along the same, N. 37 deg. and 40 m. E. 239 ch. to the place of beginning." The only ques- tion was, as to the manner of running the third course of the patent. If the line should be run according to the course and distance, it would not strike the lake within 30 chains, but ter- minate at that distance north of the lake. If the line be run so as to touch the lake, without regarding the distance, with the least variation from the course, the premises, or a part thereof, will be included within the bounds of the patent. If the line be run according to the course and distance, and then a line as nearly east as might be, is run to the lake, or if the line be run so as to strike the lake, at the nearest distance from the third station, a small part (if any) of the premises will be included. If after running the third line according to the course and distance, a *line be run [*351 from its termination, so as to come to the lake at the shortest distance, and upon a south- easterly course, then the premises will be in- cluded within such lines. It was agreed that a survey should be made upon such principles as the court might direct, and if any part of the premises be included therein, the plaintiff was to have judgment for such part. Messrs. Hamilton and Spencer for the plaint- iff. Mr. Hariiton, contra. Per Curiam. The plaintiff claims under the patent of Springfield, and the question between the parties depends on the just construction of that patent, in respect to one of its boundaries. The line in controversy is susceptible of being variously run, so as to exclude wholly, or to comprehend different parts of the premises. The parties have agreed to adopt the mode of survey directed by the court, and the plaintiff is to have judgment or not, according to the result. The first station given in the patent is not disputed. Its boundaries from thence are described by courses and distances, without any certain or natural monument, until they come to the line in question. This line is also given by a course and distance, but is to run to Lake Otsego. The words are, "thence south 30 degrees, west 450 chains, to the aforesaid i lake." It is found that the course thus given j will run wide of the lake ; and different modes i of ascertaining the line have been suggested. JOHNSON'S CASES, 2. 1801 JACKSON, EX DEM. VIELY AND CI.AKK, v. CUEKDEN. 851 One is to depart from the course, so far as is j (marked F on the map accompanying the noeessiirv to strike thft obiwr.t. wit.h thft Iftast. fftKtA -nrhi/^h oo-v^ou mJtV. tin. ,.f necessary to strike the object with the least deviation, which would carry the line to the northwestern extremity of the lake ; another is to run to a station at the lake, which would ex- case), which agrees with the number of chains, and more than any other with the description in the patent, and the probable in- tent of the grant. correspond with the distance of chains; a third is, to run to the nearest point in the north- j Judgment accordingly. rn extension of the lake ; and a fourth is to j 352*] run *the course and distance as given, ; ^ind to close by a supplementary line. It is evident that a single line was here in- tended, and it was supposed this line, when run according to the course and distance expressed in the patent, would reach the lake. The particular situation of the premises in relation to the lake was probably not well 1 understood ; but the lake was the terminus nd qnem, the defined object which the line was intended to reach. In order to carry this intent into effect, we must exclude the idea of JACKSON, ex dem. VIKIA- AND CLAKK, v. CUERDEN. Ejectment Tenant in Poszet&i&n Title out of Plaintiff Adverse Possession. 2. Notice to Quit. Where A who had been many years in possession of land under B, the supposed proprietor, applied a supplementary line, and pursue a single I afterwards to C, as the real owner, to purchase ; and course to the lake. For this purpose, a devia- " tion from the course is unavoidable. The least possible variation, in order to touch the lake, would exceed three degrees, and would then strike the lake on its western, instead of its northern, extent. This could not have been intended, for it does not comport with the general position of the lake, as viewed from the preceding station, and would require the next line to extend northerly, instead of requested to be considered as tenant ; in an action of ejectment by C against A, it was held that A might show that he made the application under a mistake, and prove a title out of C, though he could not set up an adverse possession of twenty years ; A was not tenant to C, so as to be entitled to a notice to quit. Citations-Bull. N. P., 1M; Cowp., 623. rpHIS was an action of ejectment for lands in JL Saratoga County, and was tried at the running easterly and southeasterly along the ] June circuit, in 1800." banks of the lake, as described in the patent. I The plaintiff gave in evidence a letter writ- It is therefore necessary to incline the course j ten by the defendant to Marv Clark, one of still further to the east ; and the most material i the lessors of the *plaintiff , dated at [*354 question is, whether it shall be drawn to its j Half Moon, the 4th September, 1797, in which northwestern extremity, or to that station ! he informs her that " he is in possession of a which will correspond with the distance of j piece of land, which appears, from the map, chains. In determining on either of those j to be hers, and which he had occupied, in stations, the deviation from the course given I company with one Rogers, for a number of does not appear to be the most important con- j years, under Mr. Gansevoort, as soilowner. sideration. The magnetic course is subject to That as it then appeared to belong to her and Mr. Daniel Campbell, he had purchased Campbell's part at $6 per acre, and was will- ing to pay her immediately, at the same rate, for hers, which was, he believed, between a-eater variation, and perhaps the most uncer- tain of any criterion that can be given. In the present case it must have been wholly mis- taken, and must necessarily be abandoned to an extent which renders it no longer any sort j forty and fifty acres. He hopes she will con- of guide. Rejecting the course, and consider- j sider him and the widow Rogers as the tenants ing the lake as the great and natural object | in possession, as they wished to pay her for intended, no station appears to me more prob- \ the soil as high as any other person, &c. able than the one which corresponds with ! The plaintiff further proved that the defend- the distance of chains. Its position is nearly | ant confessed he was in possession of some central on the northern bank of the lake, as lands claimed by the widow Clark, but said he 353*] *oppositeto the preceding station, and went into possession under the Half Moon title, and that in 1795 the defendant offered to purchase the land of an agent of the widow Clark. That before and after the offer to pur- as likely to have been in view from thence as any that can be named. It agrees with the number of chains, and, in this respect, con- ( forms more than any other to the description ' chase of the agent, and before and after the in the patent ; and on the whole, in a case j writing of the said letter, the defendant attended with so much uncertainty, no con- 1 claimed under the Half Moon patent, and that struction appears more equitable, and proba- 1 Viely, one of the lessors, to whom Mary Clark bly more consistent with the intent of the ' conveyed the premises in October, 179*7, had, grant. Another course, running to the near- . in May or June, 1798, before bringing the est station, approaching the northeastern ex- j suit, ordered the defendant to leave the tremity of the lake, has also been proposed, j premises. but there appears to be no circumstance which j The defendant then offered to give evidence entitles it to a preference. It deviates from j of more than twenty years adverse possession both course and distance, and its general posi- 1 in himself ; but it was overruled by the judge, tion, with reference to the previous station, i who said that the defendant, by his letter, was seems less probable than the one already men- a tenant, and could set up no title. The tioned. We are, therefore, of opinion under j defendant then objected to the want of six all the circumstances, that the line in question months notice to quit, which point was re- ought to be run to the station at the lake i served. .JOHNSON'S CASES, 2. 541 354 SUPREME COURT, STATE OF NEW YORK. 1801 Mr. Emott for the plaintiff. Mr. Foot, contra. 355*] *Per Ouriam. The letter of the defendant was sufficient, prima facie, for the plaintiff to recover ; but it did not make the defendant a tenant to the plaintiff. The defendant only wished to be deemed the ten- ant in possession, or in other words, the occu- pier, having the equitable right of pre-emp- tion. This was sufficient evidence to enable the plaintiff to recover ; but, on the other hand, the defendant was not precluded from showing that he grounded his letter on a mis- take, or that the fee existed in himself, or out of the plaintiff. He might be precluded from setting up twenty years' adverse possession, for that is only setting up the statute of limit- ations, and his acknowledgment by his letter takes away the statute. (Bull. JV. P., 104.) The idea of notice is inapplicable. Here was no tenancy, but an adverse holding. (Cowp., 622). A new trial must be granted, for the mis- direction of the judge. New trial granted. Cited in-7 Wend., 403; 9 Barb., 640. VAN SCHAICK . EDWARDS. Action on Notes Consideration Sale of Land Defense Usury Lex loci contractus. A, residing in the State of Massachusetts, and owning lands in this State, entered into a contract in that State with B., residing in this State, for the sale of lands to him. B gave A his bond for the consideration money, payable in four years, and also four promissory notes, payable in one, two, three and four years, for the interest on the bond, at the rate of six and a half per cent., and A executed a bond to B conditioned to execute to him a convey- ance for the land, on payment of the bond and notes. An action was brought by A against B in this court, on three of the notes, to which the defendant pleaded usury. Whether the notes were usurious? Qucere. And whether the law of Massachusetts or of this State, is to govern ? Quaere. Citations 3 Term, 425; 3 Burr., 1077; Prec. in Cha., 128 ; 2 Atk., 372 ; 1 Vesey, 427 ; 3 Atk., 727 ; Powell on Cont., 421; 3 Vin., 209, pi. 8; 1 Ves., 427; 1 Ves. Jun., 531 ; Cowp., 115; Cowp., 113; Cowp., 112; 1 Ves. Jun., 527 ; 1 Eq. Cas. Abr., 288, 289 ; 1 P. Wins., 398 ; 1 Ves., 428 ; 3 Atk., 727 ; 3 Term R.. 425 ; 2 Burr., 1078 ; 1 Johns. Cas., 139 ; 1 Bos. & Pull., 141, 142 ; 2 Ersk. Inst., 473, 474. Huberus loc. eft. was an action of assumpxit on three -L promissory notes. The defendant pleaded usury. The cause was tried at the Albany circuit, in September, 1800, before Mr. Justice Benson. *The plaintiff being seized of certain [*35O lands in the County of Tioga, in this State, on the first day of July, 1796, at Pittsfield, in Massachusetts, sold the same to the defendant, and in consideration thereof took his bond for $1,228.50, payable in four years, and four ! promissory notes, for 25 each, lawful money \ of Massachusetts, payable in one, two, three | and four years ; and the plaintiff thereupon ; executed a bond to the defendant, conditioned : to convey the land to the defendant, upon his | paying the bond and notes. The notes were i given for interest on the principal sum men- ' tioned in the bond, from the time of sale | until the time limited for payment, at the rate of six and a half per cent. The plea of usury set forth the statute of Massachusetts, of the 16th of March, 1784, which declares void all contracts for the pay- ment of any principal or money lent, upon a greater interest than six per cent. The plaintiff, at the time of making the notes, resided, and now resides, at Pittsfield, in the State of Massachusetts, and the defend- ant in Tioga County, in this State, where the lands lie. At the time of making the notes, the defend- ant insisted that the interest should be calcu- lated at six per cent., being the lawful in- terest of Massachusetts ; but the plaintiff urged that as the lands were situated in the 1 State of New York, he ought to be allowed ; seven per cent., the lawful interest of this j State ; and the interest was finally calculated ! at six and a half per cent. A verdict was i taken for the plaintiff, subject to the opinion of the court, on a case containing the above ' facts. Mr. Hanson for the plaintiff. Mr. Emott, contra. RADCLTFF, J. The plaintiff has declared on j the three notes separately, and in another i count, on an insimul computassent; *to [*357 | each of the counts on the note the defendant : has pleaded the statute of Massachusetts, | against usury, and the general issue to the last count. Two questions have been rai.sed. 1. Whether the statute of Massachusetts i applies to the case of a bonafide sale of lands, i where there is no actual loan of money. 2. Whether the contract, being in Massa- chusetts, relative to lands in this State, ought not, under the circumstances of the case, to be governed by the law of this State ? Another question, relative to a variance be- tween the evidence and the plea, was made on NOTE. Law of place, usury, loan secured by mort- gage. Questions similar to that on which the court in the above case was divided, have been much dis- cussed in the United States. The cases are difficult to reconcile, and the question may still be regarded as not decisively settled. In Wharton on the Con- flict of Laws (sec. 510), it is said : " The true test is, was the mortgage merely a collateral security, the money being employed in another State and under other laws ; or was the money employed on the land for which the mortgage was given. If the former be the case, then the law of the place where the money was actually used, and not that of the mort- gage applies. If the latter, then the law of the place where the mortgage is situate, must prevail." If the above is correct, it ia thought a purchase money mortgage and notes secured thereby, ought, also, to be governed by the place where the mort- gage is situate. The weight of authority cannot l>e said to favor this proposition, however. See sec. I 501-511 inc. of same work. Story on Conflict of 1 Laws, Sec. 287, 293 b and c, 296, 296 a ; 2 Kent Com., I 460. i Compare, also, the following cases: Chapman v. i Robertson, 6 Paige, 627 : Andrews v. Pond, 13 Pet., 65; Depau v. Humphreys, 10 Martin, 1; Pecks v. I Mayo, 14 Vt.. 33; Stapleton v. Conway, 3 Atk., 727; ' Pine v. Smith, 11 Gray, 38 ; Cope v. Alden, 53 Barb., \ a50; De Wolf v. Johnson, 10 Wheat., 383; Potter v. I Tallinan, 35 Barb., 182; Chase v. Dow, 47 N. H., 405; ! Fanning v. Consequa, 17 Johns., 511; Goddard v. j Sawyer, 9 Allen, 78. JOHNSON'S CASES, 2. 1801 VAN SCHAICK v. EDWARDS. the argument ; but I understand this objec- tion has been relinquished, and that the par- ties expect a decision on the merits. In what light the statute of Massachusetts against usury is considered in the courts of that State, has not been shown. We have not, therefore, the benefit of their decisions, and are left to adopt our own construction. It has been stated to be less extensive in its operation than our own, or the English statutes; but on examination, I do not perceive any essential difference. They all profess the same object, and are expressed in terms equally significant and comprehensive. I shall, therefore, consider them as susceptible of the same application. On the first question, I have no doubt that the statute applies to existing debts, as well as to immediate loans of money ; and equally so whether such debts have arisen from the sale of lands, or from any other source. The statute itself speaks only of loans ; but the for- bearance, or giving time of payment for a debt, is in substance a loan. It cannot be material whether the money or its value be thus lent, or has been previously received. There appears to have been no controversy on this point, in the cases that have been cited. They relate principally to the question whether a loan was masked under cover of a sale, not 358*] whether a debt arising *from a sale might be the subject of usury. Usury is de- fined to be the taking of more than the law allows upon a loan, or for the forbearance of a debt. (1 Vesey, Jun., 531.) In the case of Dewar v. Span (3 Term Rep., 425), the for- bearance of a debt arising from the sale of a real estate, in consideration of interest at six per cent. , was held to be usurious. The inquiry in the present case, therefore, is, whether the contract created a debt, and whether, for the forbearance of that debt, more than lawful interest was reserved. The plaintiff sold to the defendant two tracts of land, for which the latter undertook to pay a stipulated price. The value of the land was agreed upon and ascertained, and a bond executed for the^mount. Although the contract was still executory, as to some of its objects, this immediately constituted a debt due from the defendant, to be paid in futuro. For the forbearance of this debt, the notes on which this action was brought were given. If the interest reserved on these notes was un- lawful, the contract was usurious and void by the law of Massachusetts. On the second point, the general rule of the lex loci contractus, if applicable to the case, is fully settled, and has become a principle of universal ' law in the construction of all con- tracts. The reason of the rule I apprehend to be that the parties are considered to have in view the law of the country where the con- tract is made, and in many cases are bound to be governed by it. It would, therefore, be unjust to invalidate this engagement, or alter its operation or extent, by the law of any other country. If no circumstances attend the present case to take it out of this rule, there will be an end to the question, as far as respects the validity of the notes, by the law of Massachusetts. But it is certain that cir- cumstances may exist, arising from the situa- JOHNSON'S CASES, 2. tion of the parties, the nature of the transac- tion, *or the object of the contract, [*359 essentially to vary the rule. Thus, in the case of Bland v. Robinson (3 Burr., 1077), a bill of exchange drawn in France, and made payable in England, was held to be governed, not by the law of France, but by the English law. So on the question of interest, where a bond was executed in England, and sent over to Ireland, conditioned to be paid there, with- out specifying the rate of interest, it was held to carry Irish interest. (Prec. in Ch., 128.) In these cases the place of performance was made the criterion by which to discover the sense of the parties, and ascertain the law of the country, which should govern. In an- other case (2 Atk. , 382), where the debt was contracted in England, and a bond to secure the payment given in Ireland, Irish interest was allowed ; and Lord Jlardwicke there observed that the debt must be considered as referable to the place where the security was made, or who would lend money upon Irish security ? But in cases (1 Vesey, 427; 3 Atk., 727; Powell on Cont., 421) where the contract for the debt, and the security were both made in England, although the security was taken on an estate in the colonies, it was held, in order to prevent an opportunity of evading the statutes against usury, that no more than English interest could be reserved. This occasioned the statute of 14 Geo. III., which declared that such securities should be valid, although they reserved more than English in- terest, if they did not exceed the interest of the place where the property was situated. The rule adopted previous to this statute, although, perhaps, originally questionable in itself, has been since confirmed by the English decisions in other cases, and still prevails, particularly in relation to personal contracts. The residence of the parties has also been regarded, with a view to this subject. In tiie case of Phipps v. The Earl of Anglesea (3 Vin., 209, pi. 8), where portions *were se- [*3OO cured by a marriage settlement and by will, both of which were made in England, but the portions charged on an estate in Ireland, Lord Parker decreed that as the contract and will were made in England, and all parties re- sided there, the money should be paid into court with English interest, and without deducting the charges of return from Ire- land. From these cases it appears that where the contract is to be performed, or the interest is to be paid, or the security to be taken in an- other place, deviations from the rule have been admitted, and the law of that place adopted. The residence of the parties alone has not been regarded as decisive ; but it has its weight, in order to show their probable intent, and the law of the country they had in view. In the present case, it is admitted that the defendant resided in this State, and the plaintiff in Mas- sachusetts. Their residence alone could not, therefore, form a criterion, if it was otherwise more essential. But there is stronger evidence than this cir- cumstance affords of the intent of the parties in this instance. The plaintiff expressly claimed New York interest, because the lands &4* SUPREME COURT, STATE OF NEW YORK. 1801 were situated here. The defendant resisted the claim, and contended for the interest of Massachusetts. Finally, they agreed to a medium between both, which could only have been done with a view to the law of this State. So far, then, as the sense of the parties is ma- terial on this subject, it is expressly ascertained that they made the law of this State the basis of the contract. But I think there are circumstances inherent in this case, which show that the law of this State, and no other, was contemplated, and ought to govern. All the parts of this trans- action must be deemed to compose one con- tract. It is entire and indivisible, and the whole must be subject to the law of Massachu- setts, or of this State. It cannot be divided <$61*j and controlled by different *laws. It is also executory in its operation. The de- fendant, it is true, bound himself absolutely to pay the money, but the plaintiff was un- willing to rely on his personal responsibility. He therefore retained the title of the land as a security for its performance. The title, in its nature, is local, and exists here, and the securi- ty must, of course, be equally so. The security, therefore, exists in this State and is equivalent, at least, to a mortgage of the premises executed here. Had the title been conveyed, and a mortgage executed, the debt, according to the principle maintained by Lord Hardwicke, would have been referable to the place where the security was made. So, in the present case, although the security does not appear in the form of a mortgage, it is equally effectual, and exists here as the original title did; and it seems the debt must equally refer to the place where it exists. If this analogy be just, the plaintiff would be entitled, by means of this security, to the benefit of the law of this State in relation to the interest. In another view, the question will be at- tended, and I think more satisfactorily, with the same result. The contract, as has been stated, is executory. It is precisely the same -as if the defendant had covenanted to pay the money, and the plaintiff, on receiving it. to convey the premises. Its performance, on the part of the plaintiff, has evidently an immedi- ate reference to the law of this State ; for it is an established maxim that the mode of con- veyance must be regulated by the law of the country where the estate i.s situated. From the nature of the thing, the parties must, there- fore, have had in view a conveyance according to our law. The conveyance must also be considered as intended to be executed here. I do not mean to be understood that it might not be executed abroad; but the legal pre- sumption is that it should be done here, and JJ62*] that possession *be delivered with it. The performance of the contract, on the part of the plaintiff, is, therefore, clearly to be made here, or, at least, according to our law; and if the contract be entire, as with regard to this question it must certainly be considered, it follows that the law of this State must gov- ern it wholly. It appears to me to be irrecon- cilable to suppose the contract capable of being parcelled, for the purpose of governing differ- ent parts of it by the laws of different States. The notes being payable before the time lim- ited for the ultimate performance of the con- 544 tract, may, in one sense, be denominated inde- pendent contracts; but they are so for the purpose of the remedy only. In this sense, mutual agreements are frequently deemed in- dependent of each other, although contained in the same instrument, and relative to the same subject ; but they are not separate con- tracts; they still compose one whole, and are more properly termed independent parts of the same contract. On the question of usury, the investigation I of which necessarily embraces the whole trans- | action, I think they can never be separated. | Had the agreement been completely executed, and the notes been given for the consideration money simply, they might, as subsequent and unconnected securities, be considered as form- ing a separate debt, and as coming within the case of Dswar v. Span, already cited. In that case, there was a sale of an estate in the West Indies, and a bond given in England for the purchase money, reserving six per cent, inter- est. This bond was afterwards cancelled and another given carrying the same inter- est. The transfer of the property was com- plete : and in a suit brought on the second bond. Lord Kenyon observed that the simple question was, whether a bond given by one person to another, both resident in England, was valid, though it reserved more than Eng- lish interest. The question in the present case is very different, inasmuch as it depends on the *original contract of sale, which is [*36I5 still open, and to be executed within this State. I think this case is equally to be distin- guished from that of Stapleton v. Comcay ( 1 Ves., 437), in which Lord Hardwicke is re- ported to have held that a mortgage made in England on an estate in the " West Indies, should carry no more than English interest. His lordship's opinion is plainly founded on the idea of a simple loan, or debt, created in England, between parties residing there, and unconnected with any circumstances arising from the nature or the objects of the contract, to entitle it to India interest. Although this opinion seems to hav&> been questioned, and probably produced the statute, which, after reciting doubts, prescribes a different rule. I should be inclined to respect the high author- ity of Lord Hardwicke if it were applicable to the case before us. But the circumstances here are essentially different. The premises, which are the consideration of the contract, are situated within this State ; the parties themselves had an express view to our law ; one of them resided here; the title was retained as a security for the performance on the part of the defendant; the agreement was executory, and on the part of the plaintiff was clearly to be executed according to the law of this State, and being entire, it must be wholly governed by it. For these reasons, I am of opinion that the law of this State, and no other, must decide, and of course that no usury exists. It may also be a question how far the stat- ute of Massachusetts, in relation to this sub- ject, is to be regarded as a penal act; and whether our courts will enforce the penal laws of another State : but believing the grounds already stated to be sufficient for the JOHNSON'S CASES, 2. 1801 VAN SCHAICK v. EDWARDS. 363 present decision, I forbear to examine the lat- ter points. 1 364*] *KENT, /. 1. The act of Massa- chusetts is substantially the same as the stat- ute of Anne and the act of this State on the sub- ject of usury, and is, accordingly, to receive the same construction. I have compared them, and the act of Massachusetts is equally extensive in its operation. It reaches expressly to all usu- rious contracts, ' ' for the loan or forbearance of moneys, or other things actually lent or sold." Usury is taking more than the law allows for forbearance of a debt ; and whenever a debt is created, and there is an agreement to pay more than legal interest for forbearance of pay of it, such agreement is usurious. (1 Ves. , Jun. , 531; Cowp., 115.) If a loan be necessary to constitute a usurious contract, yet it is not necessary to the creation of a loan that the money should be paid on the one hand and re- ceived on the other ; for the circumstance of a man's money remaining in another's hands, in consequence of an agreement for that purpose, will constitute a loan. (Cowp., 113.) In the 2 takes an estate of freehold, with remainder, mediately or immediately, to his heirs, general or special, the heir shall take by descent, and for this purpose the inheritance shall rest in the ancestor ; " heirs " being construed a word 553 '392 SUPKEME COUKT, STATE OF NEW YORK. 1801 of limitation, and not of purchase. (1 Vent., 214, 225; 2 Lev., 59; 2 Ld. Raym., 1487; 1 Co., 104; Shelly's case; Fearne, 21.) The authorities in support of this rule are very numerous, and as far as my researches have extended, are uniform, except in cases of trusts, and perhaps dispositions of gavelkind lands. The cases of Archer (1 Co., 64, b), Lisle v. Gray (2 Lev., 223), which were ad- duced as exceptions, are not so. In the case of Archer, the terms are, " next heir male," in the singular ; and much stress appears, from authorities in which this case is cited (2 Str., 731), to have been laid on the word "next." This was not, however, the turning point of the cause ; it was, that the feoffment of the tenant for life barred the remainder. In the case of Lisle v. Gray, Lisle cove- nanted to stand seized to the use of himself for life, remainder to the use of Edward, his son, for life, remainder to the first, second, third, fourth, &c., sons of the said Edward, in suc- cession, and the heirs males of their bodies. Then follow these words, "and so severally and respectively, to every of the heirs male of the body of the said Edward, and the heirs male of the body of such heirs male," &c. The judgment of the King's Bench was, that the heirs male of the body, superadded to the limitations to the several sons of Edward in succession, should not control them so as to defeat the evident intention of the covenantor; but should be governed by them, and should be intended sons, as in the principal clause, and thus were words of purchase, and not of limitation. The judgment, we are told, was afterwards affirmed in the Exchequer. (2Atk., 90. note; 2 Burr., 1100.) In Long and Laming (2 Burr., 1100), many cases are cited by Lord Mansfield, to show 393*] that the rule has been *and may be departed from, by courts of law, in cases of devise, where an adherence to it would mani- festly defeat the intent of the testator. Should this be admitted, if will not be sufficient for our purpose. How the fact is, is not neces- sary here to be examined ; it is not warranted, however, by the authorities he refers to. On examination, they will be found (without ex- ception) cases of limitation, to the heir in the singular, to sons in succession, to children, or in trust. The positions also there advanced that the reason of a rule having ceased, the rule itself may be departed from, and that trust estates are subject to the same positive rules and general maxims in equity, as legal estates at law, though, in general, correct, are not always so, and I think cannot, without .great hazard, be applied to the subject before us. It is true, as his lordship asserts, that this rule or maxim, was the offspring of the ancient feudal tenures, and that they have ceased. But have not the rights of primogeniture, and numberless rules, governing the transmission of real property, sprung from the same source; and can courts of justice disregard these, be- cause the reason of them has ceased? It cer- tainly would be a dangerous experiment. The second position, also, is here inapplica- ble. Trusts were ever independent of tenures, and, therefore, not governed by the rules springing from them. They were, in their 554 origin, mere creatures of mutual confidence, arising out of the intent of the party creating them, and to be governed and construed by that alone. Equity, however, to preserve, as far as possible, uniformity of decision with the courts of law, has ever respected this rule, ex- cept in cases of mere equitable trusts, when an adherence to it would defeat the manifest in- tent of the party creating them. The case of Bagshaw v. Spencer (1 Vesey, 142; 2 Atk., 517), on which his lordship so much relies, is of this description : Lord Hardwicke reversed the decree at *the [*394 rolls, in the point involved in our case, on the ground that it was a trust in equity and not a mere legal estate, the fee being in the first instance vested in trustees, with a power of sale, for the payment of debts ; -and that the intent of the donor, to give an estate for life, only, to Benjamin, was manifest, from its being without impeachment of waste, and the limitation to trustees, to support contingent remainders, with remainder to his first and other sons, in strict settlement. The distinc- tion between a trust and legal estate, is, in this case, well established; and, also, the principle that a court of equity may be more liberal in the construction of words to make them agree with the intent of the party, than a court of law. The decision in C&ulson v. Coulson ( 2 Str. , 1125; 2 Atk., 246) is founded on this distinction. It was a mere legal estate; and though the de- vise was for life, remainder to trustees to sup- port contingent, remainders, remainder to the heirs %f the body of Coulson, it was on this distinction held to fall within the rule. And though Lord Mansfield (Doug. , 323) questions that decision (which was on a certificate of all the Judges), and asserts that Lord Hardwicke wished the principle of it to be reviewed, we find him afterwards, in Hodgson v. Ambrose, declaring it his opinion, it was too late to litigate it ; and Justice Buller, going still fur- ther, and avowing himself satisfied with it, though he admits he once had doubted it. Notwithstanding the various arguments in Long v. Laming, calculated to subvert the rule, we find in the conclusion of it, the decision resting, principally, on the ground of the lands being gavelkind; and Lord Mansfield deserting the real turning point of the case, and resort- ing to principles wholly unsubstantial. The word "heir," says he, is always a word of purchase ; and "heirs" in gavelkind is tanta- mount to "heir," in ordinary cases. That "heir" has been often, under certain circum- stances, construed a nomen collectivuin is ap parent, from the authorities cited by Hargrave, in his note on Co. Lit,, *86; from 1 [*395 Vent., 230, and Bulst,, 219. Were it always a word of purchase, and heirs in gavelkind only equivalent to it, it would be difficult to invent terms of inheritance that would create a fee-simple, by deed, of such lands. The usual circumstance, which takes the case out of the rule is, that the limitation was to daugh- ters as well as to sons. In Perrin v. Blake this subject underwent a more thorough examination than it had ever before experienced, which resulted in a final difference of opinion among the justices of the King's Bench. It was distinguishable from JOHNSON'S CASES, 2. 1801 BKANDT, EX DEM. THE HEIRS OF DAVID PROVOOST, v. GELSTON. 395 Coulson v. Coulson, by the strong circumstance of the testator's declaring it his intent that none of his children should sell this estate for longer than their lives. A majority of the judges held this sufficient to place it out of the rule, and decided accordingly. This decision was afterwards reversed in the Exchequer, seven judges to five. The numerous authorities, on this subject, are very ably analyzed by Mr. Fearne, except, perhaps, the case of King v. BurcheU (Amb., 379), which is in the precise words of our case. The superadded words "equally to be divided between them, share and share alike," are in- serted in the case, as reported by Ambler; but .are not noticed by Fearne, probably, from an opinion that they were not sufficient to distin- guish it from Goodright \. Pullyn, and Wright v. Pearson, where the terms of inheritance are general. My opinion is that Helena took an estate for life, with a vested remainder in tail, to take effect in possession, on the demise of her hus- band, and that the superadded words, "and to his, her, or their heirs and assigns forever, equally to be divided between them, share and share alike," must be rejected, as repugnant to the estate, created by the precedent words of the grant. That it being stated in the case that Cortlandt entered, and was seized under the conveyance from Brewerton and his wife ; 396*] that Brewerton,* in 1764, entered under the conveyance from Cortlandt. and died seized, in 1790; the Act of 1786 found him in the uninterrupted possession of the premises, under the conveyance from Helena, aiitf con- firmed his estate in fee-simple. The tenant, holding under his title, must therefore have judgment. The remaining points I will also examine, .although the first completely disposes of the questions. Mildmay's case (1 Co., 175), and the several authorities founded thereon, determine it still to be a rule of law, though the reason of it, probably, ceased with the statute of uses, that .a consideration is necessary to raise a use in all conveyances that do not operate by transmu- tation of possession, and that such use is well limited to those only, who are within such consideration; that an appointee, under a pow- er, is generally held to be within the rule, be- cause the uses limited by the power must be such as would have been good if limited by the original deed. On the authority of this rule, the objection to the power contained in the deed of 1762, is raised ; because of its gen- erally authorizing appointment, which may not fall within the consideration, which, it is insisted, is that of natural love and affection ulone ; and so the deed, operating only as a covenant to stand seized. In answer, it is said that the deed will well enure as a bargain and sale, and that the reservation of rents and profits is tantamount to a moneyed considera- tion, and the case of Barker v. Keate, where a peppercorn only was reserved, is relied on. (1 Mod. , 262 ; 2 Mod. , 269.) If this was a conclu- sive authority, all question between the parties, on this point of the case, would be at an end. But in that case the consideration was general, .and, therefore, there could be no objection to considering the reserved rent the only consid- JOHNSON'S CASES, 2. eration intended by the parties. It was, also, to raise a use, for the sole purpose of support- ing a common recovery, which the court thought themselves bound to favor. But in our case the consideration is express, *and [*397 falls within the maxim of exprennum facit ces- sare taciturn, precluding all averment of a con- sideration inconsistent with it. I shall consid- er this power, then, as created by a covenant to stand seized to uses, and shall examine whether it is such a one as the rule will em- brace. Every declaration of a use, is, in some sort, an appointment (Co. Lit., 276 a, b, notes); but those, only, are technically so considered, where the power is first reserved or given, with a sub- sequent limitation of uses, to take effect until or in default of the appointment; or where the uses are first limited, with a power of limiting others, which operates when executed as a rel- ocation of the former. All the authorities I have been able to meet with of powers deter- mined to fall within the rules, have been of one or other of these descriptions. The one we are examining is of neither. There is no limitation, expressly, to take effect until or in default of an execution of the power; no power of limiting new uses, which shall of necessity operate as a revocation of the former. For, had the power been executed by devise, in- stead of deed, the first uses would not have been revoked, though they would have been expended, previous to the creation of the new uses. As no authorities are to be found, ex- tending the rule beyond a power of appoint- ment, strictly and technically such, it warrants a presumption, at least, that all others are ex- empt from its operation. This presumption is strengthened by a recurrence to the maxim that "all the powers being derived from equity are, even in a court of law, to be construed equitably" (3 Burr., 1446), so as to effectuate, if possible, the intent of the donor. I am, therefore, strongly inclined to think this ought rather to be considered an authority to sell, than a power to appoint. It may be objected that it ought then to have been executed in the name of the donor. To this there are two answers : First, that an authority, coupled with an interest *may be executed in [*398 the name of the donee. Second, that the ex- ecution was pursuant, in this instance, to the letter of .the authority, which required it to be done under his hand and seal. Another important consideration is, whether this rule extends to a power created for the sole benefit of the donee? On this point I have met with no direct adjudication. The authorities I have examined relate, without exception, to cases of a different description. There is one, however, from which it may be inferred that such a power is not within the rule. The case I allude to is that of Goodiitlc v. Petto. (Str., 934.) There A, in considera- tion of love and affection, and to make pro- vision for his wife, in case she survived him, covenanted to stand seized to the use of him- self and her, for their joint lives, and the life of the survivor, remainder to the use of such [ person as she should think fit to dispose to. | The court held that because the appointment I was not to be for the benefit of the wife, but ! that she had a naked power for the benefit of 398 SUPREME COURT, STATE OF NEW YORK. 1801 strangers only, the appointee could not take ; clearly intimating it had been otherwise, had the power been to be created for her benefit. Another inquiry, equally important, is, whether the conveyance of a freehold estate, coupled with a power to dispose of the fee, does not vest a qualified fee-simple in the do- nee of the power. In Jennot v. Hardie (1 Lev., 283), lands were devised to E. for life, remainder to A. in tail, and on his dying without issue, in the life of E., then to E. to dispose of at her pleasure. This was held to vest the fee-simple in E. In Whishonv. Clayton (I L'ev., 156), the de- vise was to W. after the death of the testator's wife, and if he failed, then to the discretion of his father. This was held a fee-simple in the father. In Pearson v. Otway (2 Wils. , 6), the devise was to Agnes for life, and in case she should 399*] have no issue, *with power to dispose at her will and pleasure. This was held to vest a fee-simple in Agnes. In Bagxhaw v. Spencer (1 Vesey, 142; 2 Atk., 577), the devise to sell was held to carry the fee. These, it may be said, are cases of devise, and that words in a will may create a fee, which cannot in a deed. This would, in a great measure, lessen their authority, were it not that the same latitude of construction is indulged on powers, as on wills ; for in each, the intent of the party is to govern. The in- tent of parties who gave the powers ought to govern every construction, said Lord Mans- field, in Taylor v. Horde. Another important view remaining to be taken of this point of the case is, to discover whether this power is not exempt from the operation of the rule, by means of the freehold interest vested in the donee of the power, and whether it embraces any other than naked or collateral powers. In the case at bar, the power, if such it may be called, as far forth as it might be executed by deed, was a power ap- pendant, because of the interest which the donee had in the estate, as well as in the exer- cise of the power; and in such case, it is held that the person to whom the estate is limited by the execution of the power is, in law, con- sidered as coming in under him who executes the power, and not under him who creates it. (Powell on Powers, 12; Harg. Law Tracts, 415; 1 Co., 174; Digg's case.) I am, therefore, of opinion this power was well created. The remaining question, as to the execution of the power, I think, admits of little doubt. It was created expressly for the benefit of the donee, her heirs and assigns, and there is no restriction on the exercise of her discretion, in the adoption of such mode of execution as she should think best calculated to produce this effect. She was the best judge of the confi- dence her husband merited ; and that her father was satisfied with the disposition she j 4OO*] *made, and was, probably, privy and ! assenting to it, may fairly be inferred, from his never having demanded rent during the j fourteen years that he survived his daughter. | I am, therefore, of opinion, that the defend- ant is entitled to judgment. RADCLIFF, J., not having heard the argu- ment, gave no opinion. 1 Judgment for the defendant. Followed-6 N. Y.,422. Cited in 3 Hill, 166 ; 3 Denio, 491 ; 6 Paige, 517 : 3 Edw., 11; 58 N. Y., 599; 16 Hun, 74; 38 super., 89; 100 Mass., 469. THE PEOPLE, ex Tel. QUACKEHBOSS, BURTCH. 1. Indictment for Forcible Entry and Detainer Certiorari Rule to Amgn Errors Judg- ment By Default Proceeding* set Aside. 2. Id. Landlord Let in to Defend. An indictment for a forcible entry and detainer before two justices, having 1 been removed by cer- tiorari to this court, the defendants were served with a notice of a rule to assign errors in 20 days, and no assignment being made, a judgment by de- fault was entered ; and the defendants afterwards filed their plea. It was held that the rule to assign errors was a nullity, and the judgment, and all sub- sequent proceedings were set aside for irregularity. The landlord may be let in to defend, in an action for a forcible entry and detainer, as well as in eject- ment. AN indictment for a forcible entry and de- tainer, was found against the defendant before two justices of the peace in Washington County. The defendant traversed the indict- ment, by pleading not guilty, and possession for three years. Before the trial, the proceed- ings were removed into this court, by cer- tiorari. In June last, a notice was served on the de- fendants to assign errors in twenty days, or judgment. No errors having been assigned, a judgment by default was entered against the defendant, in July Term last. Afterwards, the defendant filed a plea of not guilty, and pos- session for three years. The defendant did not assign errors, because the notice was not to plead, as well as to assign errors. The defendant states that John Fort was landlord *of the tenant in possession of the prem- [*4O1 ises; and that the defendant had a good de- fense on the merits. Mr. Woodwoi'th, for the plaintiff, now moved to set aside the default, and all subsequent proceedings, including the writ of restitution. Mr. Va-n Vechten, contra, read affidavits, stating that, by articles of agreement between the defendant and Peter Fort, dated the 25th August, 1801, they acknowledged the prosecu- tor as owner of the land, and thereby surren- dered the possession to Quackenboss, as the agent of the prosecutor, and acknowledged themselves tenants, to hold for three months, and agreed to pay $10 rent. That the defend- ant had confessed the same, and disavowed any contract or privity with John Fort, who had declared his intention to relinquish all claim to the land. 1. LANSING, Ch. J., had left the bench, having been appointed Chancellor, on the 28th October, during the term ; and LEWIS, 7.,was on the same day appointed Chief Justice. JOHJJSOK'S CASES. 2. 1801 DE HART v. COVENHOVEN. 401 Per Curiam. The rule to assign errors was & nullity. The record itself was removed by the certiorari, which presented an issue to be tried. If the defendant was to plead de now, as it is said he is entitled to do (and as was, in fact, done here), the prosecutor ought to have called on the defendant to plead, or abide by his former pleas ; or if he was not so entitled, the prosecutor ought to have considered the cause at issue, and proceeded to trial. The proceedings of the prosecutor were therefore clearly irregular. On the merits also, we are of opinion, the proceedings ought to be set aside. Here is color for the suggestion that the defendant was tenant to John Fort; at least the fact is liti- gated, and ought to be otherwise determined. This is an application to the equitable discre- tion of the court ; and those who stand behind the tenant, may here, as in ejectment, at com- mon law, and independent of the statute, be received to defend the right. John Fort, claim- ing the premises as landlord of the defendant, 4O2*] and *the latter disclaiming his title and attorning to another, are facts which may be tried in the present action, and ought to arrest any collusive proceedings between the prosecu- tor and the defendant. It is unnecessary here to say in what form the landlord may be ad- mitted to defend ; but his right to make a de- fense, we think, is undoubted. It is therefore ordered that the default, judgment, and all proceedings thereon, be set aside, and if a writ of restriction has been executed, that re-resti- tution be awarded. The motion must be granted. Motion granted. DE HART v. COVENHOVEN. Reference Law Questions. A reference of a cause will not be granted, if it" appears that law questions will arise. MR. BOGARDUS, for the plaintiff, moved for reference of this causp, on the usual affidavit. Mr. Morton, contra, read an affidavit, stating that several important questions of law would arise in the cause. Per Curiam. As the trial will involve the decision of law questions, the motion must be denied. Motion denied. 1 4O3*] *KANE AND KANE INGRAHAM. 1 . Bankruptcy Discharge Certificate Bail Exoneretur. 2. Bail Tirm wlien Fixtd Sur- render. Where the principal in a cause had obtained his certificate of discharge under the bankrupt law of the United States, before the bail had become fixed, the court ordered an exoneretur to be entered on 1. See Low v. Hallett, 3 Caines's Rep., 82 ; Adams v. Bayles, 2 Johns. Rep., 374. JOHNSON'S CASES, 2. the bailpiece ; and bail are not considered as fixed until after eight days in full term aft^r the return of process against them, or within the time allowed for the surrender of the principal. Citations Act of Congress April 5th, 1800 ; Cowp., 823, 824; 1 Term H., 624 ; 1 Burr., 244, 436 ; 1 Term R. 624. MR. BO YD, in behalf of, Phrenix, bail for the defendant, moved that an exoneretur be entered on the bailpiece in this cause, the de- fendant having obtained his certificate of dis- charge under the bankrupt law of the United States, of the 5th April, 1800. The suit was commenced the 7th November, 1800 ; judgment was obtained, and a ca. sa. was issued, which was returned non eat in- ventus, the 21st July last. Pending the suit, the defendant committed an act of bankrupt- cy, and a commission having been issued against him, he obtained his certificate of dis- charge on the 21st August last. After his dis- charge, a suit was commenced against the bail, and the capias was returnable on the first day of this term. Mr. Boyd cited 1 Burr., 244; Cowp., 823, 824; 1 Term Rep., 624; Col. Cas., 51, 60; 1 Bos. & Pull., 61. Mr. Hopkins, contra, cited 2 Bl. Rep., 811, 812. Per Curiam. By the act of congress, of the 5th April, 1800, the bankrupt, on obtaining a certificate, is to be discharged from all debts ow- ing by him when he became a bankrupt, and which might be proved under the commission. This debt is, no doubt, one of that description. The certificate of his discharge cannot be ob- tained, unless the commissioners certify that he has made a full discovery of his estate and effects, and in all things conformed to the act or the judge of the district shall be of opinion that the certificate is unreasonably denied by the commissioners; and unless two thirds of the creditors in value, coming in under the commission, shall consent to the allowance of the certificate, and such consent proved, by the oath of the bankrupt, to have been *f airly obtained; and any of the cred-[*4O4 itors are entitled to be heard against the al- lowance of the certificate. Public notice of the bankruptcy is required to be given, aild the creditors are fully apprized of the proceed- ings against him. The act also provides that if the banknipt be arrested or prosecuted for any debt due before he became a bankrupt, he shall appear without bail, and may plead the general issue, and give the special matter in evidence, and it is declared that his certificate shall be prima facie evidence of his having conformed to the act, and the burden of proving fraud or non- conformity shall lie on the plaintiff; and if the bankrupt be taken in execution, or imprison- ed, on account of any such debt, he shall be discharged by Juibeas corpus. In the present case no fraud appears to in- validate the discharge. It is not to be sup- posed that any existed, for the plaintiff has had an ample opportunity to show it against the allowance of the certificate; and the act ex- pressly directs, that the onus probandi shall afterwards be on him. A bare suggestion can- 557 404 . SUPREME COURT, STATE OP NEW YORK. 1801 not be received as evidence of fraud. We are, therefore, t consider the certificate as fairly obtained; and if the defendant were in prison, he would be entitled to his discharge on a habeas corpus. It is unnecessary to say what this court would collaterally do on the present motion, if fraud had been made to appear. The only question is, whether the bail is now in time to surr%nder. If he may surren- der, to prevent circuity, the modern practice is (Cowp., 823, 824; 1 Term Rep., 624), to or- der an exoneretur at once to be entered. By the English law, the rule is that the bail can- not surrender their principal, being a certifi- cated bankrupt, after they are fixed. WooUey v. Cobb, and Cockeritt v. Owston ( 1 Burr. , 244, 436, and 1 Term Rep., 624), are decidedly to this effect. The bail, in the sense of the authorities, are deemed to be fixed, when 4Oo*] *the ca. sa. against the principal is re- turned non eat. If we apply this rule, the bail would here be fixed, and cannot surrender. But our courts, in general, have been liberal towards bail, and have considered the priv- ilege with in the period of grace, as ripened into a matter of right. Thus they are held liable to interest, on the judgment against the principal, only from the expiration of the days of grace. That is a case quite as strong as the present, because there they are not only fixed in law, but have voluntarily waived the privilege of a subsequent surrender. And if no analogous case existed, we are inclined, in favor of bail, to* adopt the rule, that they are in no case definitively liable till the expira- tion of the eight days in full term, after the return of process against them. The bail in this case, would, therefore, be allowed to surrender; but as the principal would be immediately entitled to his discharge, the surrender would be an idle ceremony, en- tirely useless to the plaintiff, and attended with expense and inconvenience to both the defendant and his bail, we think the practice of entering an exoneretur ought to be pursued. The motion must be granted. Motion granted. 1 Cited in-4 Johns., 409. 4O6*] *HODGES v. SUFFELT. Bond Conditioned Covenant Action on, Recovery Six Cents Nominal Damages Judgment Costs. In an action of debt on a bond, conditioned for the performance of covenants, the plaintiff must assign breaches.eing generally reputed insolvent, and process actually awarded against him as an abscond- ing debtor; and the respondent having com- municated (as appears by his answer) the propositions made by Henry Livingston to the appellants, who made no objections to them, they must, I think, be considered as having assented to or ratified the same. And the maxim is omnit> ratihabitio mandate cequipar- afar. The intimacy between the parties, and their long silence confirm this conclusion. The respondent is answerable, then, for the note, to the amount of thirteen shillings and four pence in the pound, according to the Chancellor's decree. 2. The Court of Chancery having acquired cognizance of a suit, for the purpose of dis- covery or injunction, will, in most cases of account, whenever it is in full possession of the merits, and has sufficient materials before it retain the .suit, in order to do complete jus- tice between the parties, and to prevent useless litigation and expense. (3 Atk., 263; Cases in Ch., 40; Fonb. Eq., 12.) It appears to be admitted by the appellants that the respondent paid for them, as guaran- ty, to the amount of forty shares, twenty-five of which he advanced on or about the 1st of May, 1792; and though betook up Pierpoint's note in March preceding, for $4,290; yet the appellants were not obliged to pay until May, nor the respondent to take up the note till that time. The price of the stock in May ought, there- fore, to be the criterion, for, perhaps, the re- spondent may have paid a higher price in March. I do not think it a gambling act in the respondent to take up the note prior to JOHNSON'S CASES, 2. 430 May. Prudence, and his own security, may have dictated such a measure. I am, therefore, for affirming the decree. *A majority of the court being of the [*432 same opinion, it was, thereupon, ordered, ad- judged and decreed, that the decree of the Court of Chancery be affirmed. Judgment of affirmance. Cited in 6 Wend., 155 ; 3 Hill, 556 ; 4 Johns. Ch., 290; 1 N. Y., 217; 33 N. Y., 53; 73 N. Y., 579; 6 Laws, 217; 12 Barb., 62; 14 Abb. N. S., 310; 4 Daly, 381; 1 How. App. Cases, 483; 47 Ind., 389; 1 Bald., 415. CORNELIUS RAY, JOHN LANSING, JUN., AND CORNELIA, his Wife, Appel- lants, v. ANN BOGART, CORNELIUS N. BO- GART, DAVID S. BOGART, HELENA BOGART, AND CARY LUDLOW, Re- spondents. Partnership Death of aU Parties Bill by Rep- resentative for Accounting Lapse of Time Dismissal as Stale. Where A,B and C entered into partnership in trade, in 1767, and continued business until May, 1774, when B died, and the partnership was thereby dissolved, and C afterwards died, in 1782, and A in 1788, without the partnership accounts having been settled ; and in 1794, the representatives of A filed a bill in chan- cery against the representatives of the other part- ners, for an examination and settlement of ac- counts, and for the payment of a balance claimed ; the court dismissed the bill, on account of the lapse of time, and the death of the parties, considering it as a stale demand. Citations 1 Atk., 494; 1 Fonb. Eq., 322; 1 Atk., 494 ; 2 Ves., 483 ; 4 Bro. C. C., 264 to 270 ; Bunb., 217 ; 2 Bro. C. C., 62 ; 1 Atk., 493 ; 2 Ves., 483 ; 1 Yin., 156. HENRY C. BOGART, Robert Ray and Daniel Stiles, some time in the year 1757. entered into partnership, for the purpose of merchandising and distilling. It was verbally agreed between them, that they should equally divide the profits, and bear the loss arising from the business. Robert Ray conducted the business in his own name, for the account of the partnership, from the commencement of the firm until the 13th October, 1773. Some time after the commencement of the business, but how long is uncertain, a dispute having arisen between Robert Ray and Henry C. Bogart, on account of the former charging a commission for being the active partner, amounting to a considerable sum, on which Henry C. Bogart offered to take the manage- ment of the business upon himself without commission; and accordingly Ray, on the 13th day of October, 1773, resigned to Bogart the care of their concerns. Henry C. Bogart continued the active part- ner, without an allowance therefor, until the time of his death, which happened some time in the month of May, 1774. *Cornelius Bogart, father of Henry [*433 C. Bogart, and Nicholas C. Bogart, brother of Henry, were appointed executors by the will 567 433 COURT OP ERRORS, STATE OF NEW YORK. 1801 of Henry C. Bogart, and continued to reside at the City of New York, where Robert Ray also resided, until some time in the year 1776, when they were exiled, in consequence of an invasion by the British forces. But Nicholas C. Bogart never qualified as an executor; Cornelius Bogart took possession of the whole estate, and paid the debts which came to his knowledge. Robert Ray lived about eighteen years after the death of H. C. Bogart, and during the greater part of that time in the same family with Cornelius Bogart. Upon the termination of the war, Cornelius Bogart and Robert Ray returned to the city of New York. Cornelius Bogart died in 1793, at the age of ninety-three years or upwards, intestate. The accounts between the estate of Robert Ray and H. C. Bogart respectively, showed a balance against each other; but the accounts thereof, exhibited by H. C. Bogart, have not been produced by the appellants; and neither those accounts nor the materials from which they have been composed have ever been in the possession of the respondents, or either of them. The copartnership was dissolved in the month of May, 1774, by the death of H. C. Bogart. Daniel Stiles died in 1782, and his widow, and sole acting executrix, afterwards died. Robert Ray died in the year 1788, having made the appellants, Cornelius Ray and Cornelia, since married to John Lansing, Jun., his executors. The appellants averred that Robert Ray, on the 10th February, 1775, exhib- ited an account of his partnership trans- actions. And in a paper, which they allege to be a copy of that account, it appears that the said Robert Ray charged 807 13*. , for com- missions by him claimed for transacting the partnership business, and by the same ac- 434*] count *Robert Ray states a balance of 113 8s. 6d., to have been due to him. In the same account are charges against the copartnership, to the amount of 449 4s. 4d. , for money alleged to have been advanced by Robert Ray, at different periods, after he had ceased to be the active partner, to Daniel Stiles for securing the payment of which sums Robert Ray took promissory notes, in his own name, from Daniel Stiles. Differences arose between H. C. Bogart, in his lifetime, and the said R. Ray, respecting these accounts; but how these differences were adjusted, or if not adjusted, why no settle- ment thereof was made, did not appear. The books of the copartnership have been pre- served in a perfect state, and at the time of filing the bill were in the hands of one of the witnesses in the cause. In the year 1794, the appellants filed their bill to compel an examination and settlement of the accounts of the copartnership, claiming a balance to be due to them, in the manner before stated. The respondents, by their answer, declared their utter ignorance of the matters in ques- tion ; the death of all the parties therein con- cerned, and the death of all the executors of two of the parties, to wit, of D. Stiles and H. C. Bogart, and the great lapse of time, and in- M8 sisted that under such circumstances they ought not to be compelled to an examination of those accounts. On the hearing of the cause, His Honor the Chancellor was pleased to dismiss the bill, prin- cipally on account of the great and unnecessary delay and lapse of time, the death of parties, and the probable loss and destruction of papers. From this decree the appellants appealed to this court, for the following reasons: *1. By the act of law no absolute [*435 bar is opposed to the opening and adjusting of accounts, except what is created by the statute of limitations. Every party claiming the ben- efit of this bar must "either plead it, or insist upon it in his answer. Neither of which has been done by any of the respondents in this cause. 2. Length of time forms no absolute bar to the opening and adjusting of accounts, but only raises a presumption that accounts sought to be opened and adjusted, have in fact been settled, and that the balance struck on such settlement has been paid to the person entitled to receive it. This presumption, like all other presumptions, will prevail until repelled by stronger evidence, and no longer, according to the maxim, stabiiur prcesumptioni donee probetur in contrarium. On this point the rule of law and the rule of equity are precisely the same. 3. The presumption of settlement and pay- ment, arising from the length of time in this cause, is repelled by the following circum- stances: 1. The death of Henry C. Bogart just before the war began. 2. The intervention of the war, and the dis- order it occasioned. 3. The removal of the parties from the city of New York, and their continuance without the city during the war. 4. The delicate situation in which some of the parties were placed with respect to each other, by the nearness of their relationship, and the habits of friendship and intimacy in which they lived. 5. The extreme old age of Cornelius Bogart and his probable unfitness for the investigation and settlement of the accounts in controversy. 6. The account rendered to one of the ap- pellants by Nicholas C. Bogart, after the death of his father, Cornelius Bogart. *7. No inconvenience can result to [*43(> the respondents from an examination of the accounts, as the books of the copartnership have been preserved in a perfect state. They can be commanded and must' control the set- tlement. It cannot be a disadvantage to the respondents that the books have come to the hands of Henry C. Bogart from those of his father, Cornelius Bogart. 8. In this view of the cause, it is supposed that no sound principle of public policy for- bids the examination and adjustment of the accounts in question. Messrs. Troup and Harison, for the appel- lants, cited 2 Ves., 482; 1 Atk., 493; Cowp.. 108. 109; 1 Term Rep., 270; 1 Fonb. Eq., 322, 324; 1 Ves., 331; 1 Vin., 186; 2 Atk., 632. Messrs. Kcertson and Burr, contra, cited 2 P. Wms., 144; 2 Vcrn., 276; 3 Atk., 106, 107; Bunb., 217; 2 Eq. Cas. Abr., 578. JOHNSON'S CASES, 2. 1801 JOHN B. MURRAY v. ISAAC GOUVERNKUR ET AL. 436 KENT, J. Rejecting the period from May, 1775, to May, 1784, as being no reasonable time for the settlement of accounts in chan- cery, then, from the dissolution of the copart- nership, by the death of H. C. Bogart, in May, 1774, to the exhibition of the bill in June, 1794, is but eleven years. Where there is a mutual trust, as between copartners, I very much doubt whether the statute of limitations applies. (1 Atk., 494; 1 Fonb. Eq. , 322.) If it does apply to such a case, then it must either be pleaded or insisted on in the answer, or it is waived. The rule of pleading in law and equity is equally strict. (1 Atk., 494; 2 Ves., 483.) The respondents insist only upon the lapse of so many years, and the death of so many parties; an objection which goes only to the staleness of the demand and the presumptions arising therefrom. 437*] *A court of chancery, though the statute is not insisted on, will always exercise its discretion in dismissing stale demands, on the ground of an unreasonable lapse of time. But I have never met with an instance in which the court has dismissed a demand on this ground, where only eleven years had elapsed, and when it appeared that no settle- ment had ever been made. There is a late case (4 Bro. C. C., 264 to 270), where Lord Kenyon would not suffer an account to be taken where the party had patiently slept over his demand for thirty-three years. There is another case in the Exchequer (Bunb., 217), where the court would not suffer one partner to recover a bal- ance against another, after twenty-four years. In another instance (2 Bro., C. C., 62), the court refused to open, at large, an account which had been settled for ten years, though certain items were suffered to go to the master. In other cases I find accounts have been suffered to be taken after sixteen, thirty-two, and thir- ty-three years. (1 Atk., 493; 2 Ves., 483; 1 Vin., 156.) In the present case, there was, in fact, a real laches only for eleven years, and there never having been a settlement of the accounts, and finding no instance in which the rule has been so rigorously applied, I am willing, though the presumption may be against the account, to let the experiment be made before a master, and for that purpose, I think the decree ought to be reversed. BENSON, J., and VAN VECHTEN, S., were of the same opinion. LANSING, Oh. J., and LEWIS, J., gave no opinion. RADCLIFF, J. , was absent. But a majority of the court being of opinion that the decree was correct, on the ground of the demand being on an old and stale account, 438*] which, under the *circumstances, ought not to be inquired into ; it was there- upon ordered, adjudged and decreed, that the decree of the Court of Chancery be affirmed. Judgment of affirmance. Distinguished 54 Cal., 469. Cited in 3 Johns. Ch., 586; 6 Johns. Ch., 369; 3 Barb., 595; 13 How., 460; 30 N. J. Eq., 190; 1 Bald., 418. JOHNSON'S CASES, 2. JOHN B. MURRAY, ISAAC GOUVERNEUR, PETER KEMBLE, AND SAMUEL GOUVERNEUR, Respond- ents. 1. Payment Precedent Debt by BiUof Exchange Agreement. 2. Bona Fide Purcliaser Without Notice Equities. 3. Mesne Profits Action for Equitable. Defenses. A bill of exchange given for a precedent debt is not payment, unless expressly agreed so to be, by the parties. Where A contracted to sell a house and lot to B, and C purchased of B all his right, &c., it was held . that C, though abonafide purchaser, without notice, I must take the property, subject to all the equity i existing between the original parties, A and B. An action for mesne profits is an equitable suit, in which every equitable defense may be set up. Citations 1 Salk., 124; 1 Esp. Cas., 8. IN the year 1796, the respondents, Isaac Gouverneur and Peter Kemble, together with Joseph Gouverneur (since deceased, who, by his last will, appointed Isaac Gouverneur and Joseph Gouverneur his executors), com- menced an action of ejectment in the Supreme Court, to recover from the appellant a house and lot of ground in the city of New York. After the cause was ready for trial, the appel- lant filed his bill in chancery, stating that in August, 1795, Gouverneur and Kemble, part- ners in trade, and pretending to be duly authorized by Joseph Gouverneur '(who was then absent beyond seas), made a proposal in writing, and afterwards agreed with Robert Murray, partner in the house of Robert Murray & Co., for the sale of a house and lot to th'e said Robert Murray & Co. for the sum of $10,000 the one half to be paid in January, 1796, and the remaining half in May, 1797. Immediate possession was to be given to Robert Murray; and on making the first payment, a deed was to be executed to the said Robert Murray & Co. , who were to give a mortgage to secure the second payment. In pursuance of *this agreement, Robert Murray was put [*43J> in possession of the premises, and continued in possession until he sold them to the appellant. The time of the first payment was postponed by mutual consent. In January, 1796, Gouv- erneur and Kemble, on their own account, purchased of Robert Murray & Co. bills of exchange on London, to the amount of $25,000, and in paying for the same deducted the first installment of $5,000 due for the house and lot. and gave a receipt for the same, as the first NOTE Negotiable, paper, delivery of not generally payment of precedent debt. The law'is generdllii stated to be that negotiable paper is not payment of a pi-ecedent debt unless circumstances show that such was the intention of the parties. Peter v. Beverly, 10 Pet., 567 : Sheehy v. Mandeville, 6 Cranch. 353; Bui-dick v. Green, 15 Johns., 247; Hughes v. Wheeler, 8 Cowen, 77; Haw- ley v. Foote, 19 Wend., 516 ; Waydell v. Luer, 5 Hill, 448 ; Pratt v. Foote, 9 N. Y., 463 : Mooring v. Mobile, M. D. & M. I. Co., 27 Ala., 254; McCrary v. Carring- ton, *5 Ala., 698 ; Hayes v. Stone, 7 Hill, 128 : Gardner v. Gorham, 1 Doug., 507. The law as to burden of proof varies somewhat in the different States. See Blunt v. Walker, 11 Wis., 334 ; Williams v. Ketchum, 22 Wis.. 432; McGuire v. Gadsby, 3 Cal.. 234: Arnold v. Sprague. 34 Vt., 402; Wait v. Brewster, 31 Vt., 516 ; Collauier v. Langdon, 29 Vt., 32; Union Bank v. Siniser. 1 Smn-d., 501; S69 439 COURT OP ERRORS, STATE OF NEW YORK. 1801 installment. Robert Murray did not then de- mand a conveyance for the house and lot, nor did Gouverneur and Kemble offer to give it. Un the 12th August, 1796, the appellant pur- chased of Robert Murray & Co., for $5,000, all the right and interest in the said house and lot, and took possession thereof. He after- wards applied to Isaac Gouverneur and Joseph Gouverneur, in October, 1796, for a fulfillment of the contract of sale, who made no answer to the application, but brought an action of eject- ment against him, on which the appellant tiled his bilf in chancery, praying an injunction to stay the suit at law, and that the respondents should be decreed to execute to the appellants a good and sufficient deed for the premises, pursuant to the agreement. Isaac Gouverneur, in his answer, stated that he never pretended to have a power of attorney from Joseph Gouverneur, but had directions from him to sell the premises, in consequence of which he made the agreement with Robert Murray & Co. for the sale of the premises, and delivered the possession to Robert Murray, in 1795 ; that when the bills of exchange were purchased the $5,000 deducted, was to be con- sidered as on account of the purchase money for the premises, if the bills were duly paid; that the bills were accepted, but not paid, and that notice of the nonpayment was given to Robert Murray & Co., and that he believed that Robert Murray & Co. had no effects in 44O*] the hands *of the drawees, when the bills were drawn. Joseph Gouverneur stated that he did not give Gouverneur and Kemble any letter of attorney to sell the house and lot, but merely directed them to sell the premises, as above stated. The respondents, Gouveneur and Kemble, also stated that they did not agree to accept the notes of Robert Murray & Co. for the first installment; and that the deed for the house and lot was not to be given until the bills were paid, and the second installment also paid, and that they did not agree to take a mortgage for the second payment. Robert Murray & Co. were in full credit in January, 1796, but some of their bills were protested in May following, and in July they stopped payment. The appellant had expended, prior to the 12th August, 1796, $600 in repairs on the house, and a further sum after that time. After hearing the cause, the Chancellor de- creed that the appellant should pay to the defendants $10,000 with interest, to be ascer- tained by a master, and on payment thereof, the respondents should execute a conveyance to the appellant for the premises in question, and that unless this was done in twenty days, the injunction should be dissolved. The mas- ter reported the interest to be $2,345.97. From this decree and order, the appellant entered an appeal to this court. The cause was argued by Mr. Hanson and Mr. Burr for the appellant, and by Mr. B. Livingston and Mr. Hoffman, Attorney -General, for the respondents. KENT, J. I do not consider the bills which the respondents took, in January, 1796, as a payment of the $5,000, notwithstanding they gave a receipt, as for so much cash. Receipts are never so conclusive but that they may be explained; and we have the consideration of *this receipt fully explained to us. The [*44 1 bills were drawn by Robert Murray & Co. on one of the partners in London. This is, in fact, like a person drawing a bill on himself; the law imposes on him all requisite notice. It is a settled rule of law, that a bill shall not be a discharge of a precedent debt, unless it be so expressly agreed between the parties. (1 Salk., 124.) "The law is clear," says Lord Keuyou (1 Esp. Cases, 8), " that if, in payment of a debt, the creditor is content to take" a bill or note, payable at a future day, he cannot legally commence an action on the original debt until such bill or note becomes payable, or default is made; but if such bill or note is of no value, as if, for example, it be drawn on a person who has no effects of the drawer in hand (as was the case here), and who, therefore, refuses it, in such case he may con- sider it as waste paper. " It is evident, that Robert Murray did not consider the bills as payment; for, as the ap- pellant states, on the first payment Robert Murray was to receive a deed, and yet, after the delivery of the bills, and the receipt was given, he did not require a conveyance. This Ts pretty decisive proof that Robert Murray himself did not regard the $5,000 as an absolute payment. The appellant, if a bona fide purchaser with- out notice (of which there maybe some doubt), took the house and lot, subject to all the equity between the parties, existing prior to the assignment ; and, of course, he could not re- quire a specific performance of the contract on other terms than those which Robert Murray could insist upon ; and the latter could not, in equity, demand a conveyance, without tender- ing the $10.000, the consideration money for the sale. As to the sum expended by the appellant for repairs, it may be left for liquidation, in an action for the mesne profits, if the respondents should think proper to sue for *the [*44i2 rents and profits. The action for mesm profilx is a liberal and equitable action, and will allow of every kind of equitable defense. On the whole, I am of opinion that the de- cree of the Chancellor ought to be affirmed. Kelsey v. Rasborough, 2 Rich. (8. C.), 241 ; Mclntyre v. Kennedy, 29 Pa. St., 448 ; Sutliff v. Atwood, 15 Ohio St., 186; Gordon v. Pi-ice, 10 Ired. L.,385; Kenniston v. Avery, 16 N. H., 117 ; Coburn v. Odell, 30 N. H., 540; Howard v. Jones, 33 Mo., 583; Devlin v. Cham- blin, 6 Minn., 468; Day v. Stickney, 14 Allen, 255; Berry v. Griffin, 10 Md., 27 ; Milliken v. Whitehouse, 49 Me., 527 ; Hardin v. Branner, 25 la., 364 ; Burrows v. Cook, 17 la., 436; White v. Jones, 38 111., 159; Mosely v. Floyd, 31 Ga., 564 ; Bonnell v. Chamberlin, 20 Conn., 487 ; Griffith v. Grogan, 12 Cal., 317 ; Fick- ling v. Brewer, 38 Ala., 685. m Maine, Vermont, Massachusetts, and one or 570 two other States, a promissory note is presumptively payment of a precedent debt. The general tendency of decisions fa to the contrary however. Cases above cited. The one receiving note of third person upon a pre-existing dent must exercise due diligence or he will lose his remedy against his original debtor. Williams v. Ketchum, 21 Wis., 482; Shipman v. Cook, 16 N. J., Eq., 251; Cochran v. Wheeler, 7 N. H., 202 ; Brown v. Cronise, 21 Cal., 386. See cases above cited. See, further, upon general subject, Hen-ing v. Sawyer. 3 Johns. Cos., 71, and note. JOHNSON'S CASES, 2. 1801 EDWARD GOOLD ET AL. v. JOHN SHAW. 442 The rest of the court being of the same I opinion, it was, thereupon, ordered, adjudged j and decreed, that the decree of the Chancellor j be affirmed. Judgment of affirmance. Cited in--5 Johns., 73 ; 1 Cow., 384, 665 ; 4 Cow., 171 : 3 Wend., 82 ; 5 Wend., 493 ; 11 Wend., 15 ; 3 Paige, 406 ; 4 Paige, 344: 7 Paige, 306; 37 N. Y., 314; S. C., 35 How. Pr., 450; S. C., 4 Abb. N. S., 246; S. C., 4 Trans. App., 247 ; 16 Barb., 29 ; 47 Barb., 36 ; 4 Wash., 276 ; 1 Woods, 93. EDWARD GOOLD AND CHARLES D. GOOLD, Plaintiffs in Error, v. JOHN SHAW, Defendant in Error. rpHIS cause came before the court on a writ JL of error, from the Supreme Court. For the facts in the cause, and the reasons of the court below, see 1 Johns. Cases, p. 293, 309. After argument, this court unanimously affirmed the judgment of the Supreme Court, with costs, and the record was ordered to be remitted. Judgment affirmed. 443*] *THE UNITED INSURANCE COM- PANY OF NEW YORK, Plaintiffs in Error, v. ROBERT LENOX, Defendant in Error. Marine Insurance Abandonment Accept- ance Freight subsequently Earned. Where a ship is abandoned to the insurer, who accepts the abandonment, and the voyage is after- wards performed, and freight earned, the insurer is entitled to the freight earned after the abandon- ment, or pro rota. See 1 Johns. Cas., 377, S. C. THIS cause came before the court on a writ of error from the Supreme Court (see 1 Johns. Cases, p. 377, 390), where the facts and opinions delivered by the judges of the Su- preme Court, are stated. Messrs. Troup and Harison, for the plaint- iffs in error, contended that the judgment of the Supreme Court ought to be reversed: 1. Because freight being nothing more than the earnings of the ship is to be regarded solely as an incident which is attached to the ship, as the principal. When, therefore, an abandon- ment of the ship is made and accepted, the freight, of course, passes with the ship to the underwriter; in like manner as the grant of a tree vests the fruit of it in the grantee. If a different principle were to pre- vail, the underwriter, by an abandonment, would acquire a qualified, instead of an abso- lute right to the property abandoned. 2. Because the contract of insurance, being a contract of indemnity, has it in view to place the assured in the situation he was in, at the commencement of the voyage and not to yield him a profit. It naturally happens, that the ship becomes deteriorated in the course of her JOHNSON'S CASES, 2. voyage, and the freight she earns is intended to compensate for such deterioration. But if the assured may abandon the ship, and at the same time retain the freight, he will, in many cases, convert what was designed as a mere in- demnity into a gainful speculation. *3. Because, although the law per- [*444 mits freight to be insured, yet the underwriter thereon, in case of abandonment, cannot be entitled to more than the owner of the ship, who had made no insurance on freight, would have a right to receive ; and if, in such case, the owner of the ship, upon principle, would have no right to freight, it must necessarily follow that the claim for freight on the part of the underwriter cannot be supported. 4. Because, if the freight can be apportioned, as has been done in this cause, it would be- come the interest of the owner of the ship (who had not insured his freight), upon some pretext or other, to break up the voyage whenever it was nearly accomplished. Thus an extensive field would be opened for additional frauds upon underwriters, who are a class of men already too much exposed to the pernicious effects of fraud. Mr. B. Livingston, for the defendant in error, contended that the judgment of the Supreme Court was erroneous, because the plaintiffs were, entitled to no part of the freight earned during the voyage insured, and therefore the judgment should have been rendered for the defendant generally. 1. Vessels, goods and freight, are distinct interests, and the most frequent objects of ma- rine insurance. In case of abandonment, the respective underwriters acquire an interest in each, according to the subject matter of the different policies. The portion of property oftentimes saved in case of total loss, techni- cally so called, is a great encouragement to in- surance; but an insurer on freight would never, in cases of disaster, if the plaintiffs be right, have anything to receive. This would turn a policy of freight into a very unequal if not gambling contract on the part of the insurer. He must ever forego all benefit of salvage; but if this were so, premia on freight would always be higher than on ships *or goods. [*44o This is not pretended to be the case. The rates on these different articles, in general, do not vary. 2. It is a mistake to consider freight as "nothing more than the earnings of a ship." The vessel, it is true, is one, and the principal item in the expense from which profit is ulti- mately expected; but provisions, seamen's wages, &c., are also heavy charges. To in- demnify merchants for these advances, in case of loss, and not for the cost of the vessel, is the principal object of an insurance on freight. The freight received by the owner will> in many cases, not be equal to these expenses, for which he is personally responsible, and which can in no way be thrown on an insurer of the ship. It will" be no answer to say that wages, which form one article of this expense, remain a lien on her, in the hands of the un- derwriters. If they do, there can be no doubt the owner would be compelled to refund, for he must abandon the property free of incum- brance ; and were this otherwise, the vessel might sink the day after her arrival, and the 571 445 COURT OF ERRORS, STATE OF NEW YORK. 1801 mariners be left without recourse but against the owner. As the underwriter on a vessel, therefore, contributes no part of the expense necessary to make freight, it is unreasonable in him to expect any part of it. " Qui aentit cw (1 Johns. Cases, 341). If this exposition of the contract is correct, COURT OP ERRORS, STATE OF NEW YORK. 1801 it follows that on the neutrality of the ship de- pends the validity of the policy. 453*] *2. From an attentive examination of the authorities relative to the efficacy of the judgments of foreign courts of competent jurisdiction, I have no doubt that they are con- clusive evidence of the facts upon which they are found. If it be not so, this absurdity will result; the courts of one nation may have juris- diction of certain causes, may try and deter- mine them, and without reversing those deter- minations, the courts of another nation may try the same causes over again, and give con- trary decisions ; and thus, there would be con- tradictory determinations in force upon the same subjects, and at the same time, by courts of equal authority. The distinction which is contended for by the opposers of this doctrine, that the sentence of a foreign court of admiralty is conclusive to change the property that may be sold under it, but not to bind tho'se whose warranty of the property is expressly falsified by the sentence, is to me very unsatisfactory. Either the court has full power to decide the point on which the condemnation rests, or it has not. If it has the power, its decision must be conclusive as to the whole subject. If it has not, the de- cision is of no force. The validity of the sale of the property of an American citizen under an admiralty condemnation, turns upon the au- thority of the court to fix, by its sentence, the character of that property, in relation to the parties at war; and if such authority is vested in the foreign court, with respect to one party interested in the property, I perceive no solid reasons why it should not extend to all the parties. Besides, both the insurers and insured must be presumed, when they entered into this con- tract, to have contemplated the risk of capture at sea, and consequently of an admiralty trial abroad, on the point of neutrality of the property insured ; for in that view alone was the warranty of neutrality material. It is, therefore, fairly inferable that the contracting parties meant to refer the fact of neutrality to 454*] the courts of the belligerents, where*the question of prize or not was alone triable, in case of capture. The assured not only stipu- lates that the property is neutral, but the spirit of his stipulation is that he will maintain it to be so when examined before the foreign tribu- nal. (8 Term Rep., 244, 444; Millar, 466.) He is, therefore, an essential party to the proceed- ing in that court, and must be considered as having assumed the risk of its decision on the point of neutrality. To exonerate him from the consequences of that risk, at the expense of the underwriter, would, in my opinion, not only be unjust, but repugnant to the sound in- terpretation of the policy. In forming my opinion, I have dismissed all considerations of public policy. 1. Because I deem them to be inadmissible in a court of justice, when called upon to pronounce the existing law of the land. 2. Because the question before us is simply, which of our own citizens shall bear the loss of property con- demned for want of neutrality; the party who guarantied its neutrality, or those to whom the guaranty was made? On the latter point, who can hesitate to say that this court ought not 576 to lend its aid to relieve a man from the con- sequences of his own warranty, to the prej- udice of those for whose protection that war- ranty was contrived? Thus far I have proceeded on the true in- tent of the parties, as manifested by their con tract ; I now pass on to what appears to me to be the settled law on this subject. In England, the conclusiveness of the sen- tence of foreign courts of competent jurisdic- tion has been long since admitted and confirm- ed by a uniform train of decisions, in her high- est courts of judicature. The obligatory force of many of those decisions upon us is not now to be controverted, because it is established by the constitution which has adopted them, as part of the common law. *The sentences of admiralty courts [*455 appear to me to be of the number which are placed on that footing. Indeed, the doctrine of conclusiveness applies, with peculiar force, to their sentences relative to prize, because their authority is bottomed on the general law of nations, which gives the right of capturing enemy's property on the high seas to belliger- ents. (Collect. Jurid., 101,102,106; Grotius, lib. 3, c. 2, sec. 5; Vattel, lib. 2, sec. 84, 85; Mar- tens, 104, 105; 2 Ersk. Inst., 735.) This right necessarily involves the right of instituting courts particularly adapted to try the legality of such captures. And hence it is that we find courts of this description existing in all mari- time nations, and embracing everywhere the same objects ; they form a separate and inde- pendent branch of jurisprudence, uncontrolled by a common superior. Their mode of pro- ceeding is appropriate, and variant from that of the common law courts. Hence it results that the latter have neither. the power to ascer- tain the merits of their sentences, nor of re- viewing them. An objection has been made, and was urged with considerable zeal, on the argument, that no direct authority on this point is to be found in the English judicial proceedings, prior to our Revolution. But on recurring to the Eng- lish reporters and elementary writers, I find that objection is unfounded. In 1681, in the cause of Neirland v. Home- man (1 Vernon, 21), Lord Chancellor Notting- ham declares himself explicitly in favor of the conclusiveness of foreign admiralty sentences. In the case of Hughes v. Cornelius, in the reign of Charles II., the judges of the King's Bench laid down the rule in unqualified terms, that they were bound to notice the sentences of courts of admiralty abroad, and must not set them at large. (2 Shower, 242.) In the tenth year of the reign of William III. , Lord Holt, in an action on a policy of insur- ance, held, that if it appear upon the evidence that the ship insured was seized and con- demned by process of law, by the sentence *the property and ownership are des- [*45<> troyed, and there is no remedy on the policv. (1 Ld. Raym., 724.) The case from the Theory of Evidence, in 1761, bears directly upon the present question, and establishes the conclusiveness of a French admiralty sentence on the warranty of neutrality in a policy of insurance. (Theory of Ev., 37.) The authority of the last case is fully con- firmed by Judge Buller (Buller's N. P., 243), JOHNSON'S CASES, 2. JOHN C. VANDENHEUVEL v. THE UNITED INSURANCE COMPANY. 456 .nd I cannot discern whence it has been in- ferred that he referred to the case of Hughes and Cornelius, for that was an action of trover, for .an English ship, and the case he states is of a policy of insurance on a Swedish ship. In the case of Fernandez v. De Costa (Park -on Ins., 178), during the fest French war, Lord Mansfield, in a similar case, adopts the same rule. From those authorities, as well as the general course of decisions in the English courts (Harg. , 452, 457, 467, 471, 477, 479; 4 Co., 29; 7 Co. Litt., 3; 2 Lev., 14; 1 Freem., 83; Carth., 225; Amb., 761; 1 Salk., 290; 2 Bl. Rep., 977, 1175; 1 Show., 6; 1 Ld. Raym., 724; 2 Ld. Raym., 893; 2 Woodd., 456), relative to domestic judg- ments, and the rules universally laid down by the most approved elementary writers, it ap- pears incontrovertibly that the conclusiveness of foreign admiralty sentences was received as settled law in England before our Revolution ; .and being so, we are required by no less au- thority than the constitution of this State to pronounce it to be the law here. It may, perhaps, be asked, whether there is no remedy for our citizens against the unjust decisions of foreign vice-admiralty courts ? To such an inquiry, I would answer in the affirm- tative ; for they have the same remedy against those sentences which foreigners have against the erroneous or unjust judgments of our own inferior courts ; an appeal to the higher tribu- nals, which are clothed with legal power to re- view, annul, and set them right. And this I take to be the true course, which public policy and the general law of nations prescribe. 457*] *Upon the whole, therefore, I con- clude, 1. According to the sound construc- tion of the policy, it was founded on a warran- ty of neutrality of the property insured. 2. That that warranty is conclusively falsified, by the admiralty sentence of condemnation .as enemy's property. The result is, in my opinion, that the judg- ment of the Supreme Court ought to be af- firmed. MR. CLINTON, Senator: The plaintiff hav- ing 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 a warranty was false, is conclusive evidence. It is admitted by the plaintiff that the sentence binds and changes the property, and that it is prima facie evi- dence 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 definitive in favor 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 of these descriptions, the contest between the parties still remains open, whether the foreign sentence be prima facie or conclu- sive evidence against the insured, and whether it bind the property adjudicated only, or is conclusive to every extent and in every modifi- cation of the subject. Upon a question of such immense import- ance, either as it respects the interests of com- merce, the honor of the nation, the rights of JOHNSON'S CAPES, 2. N. Y, REP., BOOK 1. individuals, or the principles of justice, great and mature deliberation is requisite and essen- tial. I know not any cause that has ever been discussed in this court which embraces so many objects to render the final result import- ant. Attempts have been made to establish the doctrine of conclusiveness; and, as far as I can comprehend them, they may be arranged under four general heads. *1. Authorities previous to the [*4J>8 19th April, 1775. 2. Analogical reasoning from domestic courts. 3. The nature and meaning of the contract of insurance; and, 4. National considerations of courtesy, comity and the like. The cases cited, 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; and the rea- son assigned by Chief Justice M'Kean, in a case reported in Dallas ( Vasse v. Ball, 2 Dal- las, 271. See also 2 Dallas, 195), seems to be conclusive. The idea that a sentence of a court of admiralty is conclusive, arises from the consideration that the court always pro- ceeds in rem. The decree naturally and neces- sarily 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 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 Buller, in refer- ring to his authority for this, mentions 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 v. De Costta, 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 col- lect from it is that the testimony adduced by him was not sufficient to balance that derived *from the foreign adjudication. Will [*45J> it be believed that upon this slender ground the mighty fabric of conclusiveness is attempt- ed to be erected ? For, independent of decis- ions since the Revolution, which are no author- ity; of arguments from analogy, which I shall presently notice; and of a few scattered dicta in the books, which do not bear the stamp of 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 each other's proceedings, dp not apply. They are parts of the same building, held together by one common arch. They are under the same government, proceed according to the same law, and redress can be obtained through higher tribunals. If they attempt to exceed 37 577 459 COURT OP ERKOKS, STATE OP NEW YORK. 1802- their jurisdiction, they can be restrained by a superior power, which has an interest in pre- venting any undue encroachments, and re- pressing any improper deviations. This is not the case with a foreign c6urt of admiralty. If a neutral conceives himself injured, and is in- dulged with an appeal, he must still continue in the court of the belligerent; and there is not any uniform law by which these courts govern themselves. They listen more to instructions 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 binding if resting, on the face of it, on such regula- tions, and yet they declare that if founded 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 insured. 46O*] *The contract of insurance, says Park, being for the benefit of the insured, and the advancement of trade, must be construed liberally, for the attainment of those ends. We must, therefore, not give it an Deposition that would tend to embarrass commerce, or injure the assured; but adopt such a construc- tion as will most promote the important objects in view. How commerce would be affected shall hereafter be considered. By the terms of the contract 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 fulfills his warranty. He does not warrant 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 of the same subject, or the various motives which may produce clashing decisions. Against corrup- tion or ignorance in judges, perjury in wit- nesses, and fraud in captors, 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 consideration of an adequate premium. All the assured is re- quired to do, is not to falsify his warranty. In this case he paid a war premium of fifteen per cent. ; and, the foreign sentence out of view, the special verdict has verified his warranty. With regard to the comity due from one national tribunal to another, it appears to me that the compliment is carried sufficiently far by considering the sentence as prima facie evidence. We are not bound to sacrifice the substantial interests of our citizens to etiquette or courtesy. If a foreign nation will counte- nance unjust spoliations, if a foreign judge will divide the spoil with the plunderer, are we to countenance the knave and the robber, and declare, with all possible politeness, "al- though we are convinced that an inquiry would paint you in these colors, yet, our re- spect for your authority will prevail over a regard for justice, or the claims of our citi- 461*] zens, *we shall silence all discus- sion; and, although we know you both ignor- 578 ant and corrupt, both oppressive and fraud- ulent, yet, as you wear the form, without at- tending to the obligations of a court of justice, we shall treat your decisions with all imagin- able courtesy, comity, deference, politeness and respect. This is a summary of the doctrine, stripped of the imposing garb which it has assumed, and it can only be a question whether it is most deserving of ridicule or detestation. In suits brought in England upon foreign judgments, between the same parties, the courts consider them only as prima facie evi- dence of the demand, and admit the defendant, on a plea of nil debet, to contest the merits of the original cause of action. If a foreign judg- ment be not considered conclusive between the same parties, in cases of this nature, why should the sentence of a foreign court of admi- ralty between third persons? The Constitu- tion of the United States provides that "full faith and credit shall be given in each State to- the public acts, records, and judicial proceed- ings 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 fram- ers of the constitution could have thought it necessary to make this provision for sister States, in the closest bond of political connec- tion. The British have made the interests of com- merce a primary object 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 neutrals ; *their [*462 courts appear everywhere, and condemnations are conducted, not according to the law of nations, or the rights of parties, but according to the instructions from the sovereign and the rapacity of the captors. "Much less," says Wooddeson (2 Wooddes. , 456), ' 'ought any of our courts to slight a foreign sentence. Un- less we give credit to their proceedings, we cannot expect the judgments here should be thought to merit from them any reverence or attention." Here, then, is an explicit avowal that the doctrine is adopted with a view to a return. But France, having a different pol- icy, has adopted a different system. (Emeri- gon, 457, 464.) It is to be further considered, that Great Britain is more than one half her time at war; that she is an underwriting nation, and, therefore, highly interested in maintain- ing the rule laid down. Our policy is entirely different. Peace is no less our interest than our duty. Our courts are not liable to execu- tive instructions, and, consequently, must be governed by the principles of justice; not according to the exigencies of the State. In establishing, therefore, a rule for our govern- ment, on this momentous subject, argumenta, nb inconvenitnti ought to have great weight. France and England have set us an example ; JOHNSON'S CASES, 2 1802 JOHN C. VANDENHEUVEL v. THE UNITED INSURANCE COMPANY. 462 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 con- sider that the object of insurance is indem- nity; that instead of fixing the loss upon one, it divides it among many; that with a pacific nation like ours a construction that will release the insurer from war risks will be a depriva- tion of all the benefits that can arise from a neutral position, and will expose us to most of the calamities, without any advantages deriv- able from a belligerent State. Even Great Britain, situated as she is, has found inconvenience, in many respects, from the generality of the rule she has adopted. Her courts have, by recent decisions, attempt- ed to narrow it into smaller compass. Sev- eral important exceptions have been sanctioned, 463*] and *whenever a different course of policy shall be deemed advisable, the whole system will be destroyed. Our court has, un- advisedly, and in the first instance, without hearing argument, taken that direction; and, with the best intentions, has persevered in a doctrine which would inevitably lead to the spoliation of our citizens and the destruction of our commerce. There is nothing, either in the constitution of the admiralty courts of European nations, or the mode of 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 inter- ested, are admitted as witnesses, and the judges are paid in proportion to the condem- nations. 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 decision 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. MR. 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 ship, the Astrea, import, in judgment of law, American or neutral property ? 3d. Is the sentence of the Vice-Admiralty of Gibraltar conclusive, and does it repel the verification of warranty here? On the first preliminary question, however loose and indefinite 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 464*] *of the contract; its materiality to the risk, and consequent propriety of an under- standing on the point, the court must, I appre- hend, consider Mr. Vandenheuvel as explain- ing himself on the question of property, and under the terms "American ship." warrantingit neutral. Such, in my apprehension, is the plain, fair and rational import of the language used by the assured on this occasion. JOHNSON'S CASES, 2. On the second question in the cause, involv- ing the legal effect of the sentences of foreign courts of admiralty I enter with much diffi- dence, and all the solicitude which its exten- sive operation upon the fortunes of our fellow- citizens, and the jurisprudence of our country inspires. If our law is settled on this point ; if the question is bound by authority, then the law must have its course, however unpleasant the consequences, however opposed to the speculations of the most enlightened states- men. For authority on the question, adjudged cases in that country from whence our juris- prudence is derived, antecedently to our Revo- lution, must be resorted to. The necessary effect of the sentences of for- eign courts of admiralty, 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 courts of admiralty, and the peace of all civilized nations, are essentially concerned. But the reason for extending those sentences beyond the attainment of the above objects to control the stipulations of parties in a policy of insurance, are not equally cogent ; the ne- cessity not equally apparent. For authority to support this application of admiralty sentences are cited Buller's N. P., 244; Theory of Evidence, 37; and the case of Fernandez v. De 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 [*465 of the doctrine, and in Buller, the case relied on is that of Hughes v. Cornelius; which, al- though containing observations 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 Fernandes v. De Costa is apposite to the question before the court, and merits all that respect which is due to a NwPrius decision of one of the greatest judges that ever sat in Westminister Hall. The name of Judge Buller must be considered also as adding some au- thority to the rule by him laid down, though supported by no adjudged case there cited. No adjucations at bar, no elaborate discus- sions appear to have taken place on the ques- tion. On this foundation, in point of author- ity, 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 adju- dications, and collecting cases upon questions long agitated in courts, we find early cases often overruled; first opinions disregarded and reversed, and important questions finally set- tled in opposition to greater authority of prec- edent than what is to be found on the ques- tion before the court. 579 465 COURT OF ERRORS, STATE OF NEW YORK. 1802 Such is the result presented by a perusal of English reporters. But general principles are resorted to in sup- port of the definitive effect of admiralty sen- tences, and domestic judgments are adduced for illustration. In the principles of sovereignty, in the su- perior integrity and responsibility of domestic judges, their exemption from the influence of 466*] policy, from the dominion of *passions hostile to the administration of justice, too often excited in belligerent nations, in the prevalence of the salutary maxim of municipal origin, ut sit finis litium, will be found rea- sons, I apprehend, for superior confidence in domestic tribunals. The case of Walker v. Witter (Doug., 5) is strong to show the difference between domestic and foreign judgments; the incontrollable ver- ity predicated of the former is withheld from the latter, which are there holden to be exam- inable. Nor is the effect of this authority re- pelled 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 favor, and the court thus resorted to is bound by constitutional princi- ples not to delay that justice; besides, the same principle will apply to the case before the court. The case of Gage v. Bulkley, in Ridgway. and Burrows v. Jemino, in Strange, are not considered as bearing on the question ; they rested on a different principle, that of the lex loci contractus. The qualified manner in which admiralty sentences are now received in Eng- land ; their different operation as to the fact and the law, serve to mark a wide distinc- tion between those sentences and domestic judgments. If the reason assigned for an admiralty de- cision do not, when tested by the law of nations, bear out the conclusion, the sentence is reject- ed ; if the reasons are aasigned in an obscure and unintelligible manner, as to the point de- cided, 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 difficult to conceive. That the mode of admiralty trial is more favorable to the investigation of truth than that provided by our common law, is not, I apprehend, 467*] *evinced by experience, nor do the opinions of some very eminent writers war- rant any such conclusion. To sentences standing on such grounds my mind is not yet reconciled to yield that control- ling effect now contended for. Nothing short of the law being made out in the clearest and most satisfactory manner can, in my apprehen- sion, justify the reception of those sentences, upon the broad ground now urged upon the court. 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 in- sured, on entering into the policy, well knows the tribunal of the captors to be the prize fo- rum ; that a consideration of neutrality is es- 580 sential to the determination ; and therefore, by the terms of his contract, assents to this test of his warrantry. If the law giving a conclu- sive effect to admiralty sentences is to be deem- ed settled, then would the above conclusion correctly follow ; then would the assured be presumed to know that law, and to assent by his contract to all its consequences ; 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 tak- ing upon himself the burden 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 repre- sentation in the policy, would with difficulty be caried to the conclusion that although the property insured be, in fact, neutral, yet if condemned it must therefore be deemed enemy's. Where the property, in fact, is neu- tral, and in such case only" will the above opinion operate ; it is not to* be presumed 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 falsifica- tion of the warranty is equally fatal to a re- covery by the assured, *though no [*468 foreign admiralty may have passed upon the question. Such are the grounds on which my opinion on this important question is formed. I will only add that it is with no small diffidence I submit an opinion for the reversal of the judg- ment of a court, possessing, in so eminent a degree, the high respect and confidence of the community. The majority of the court being of the same opinion, it was thereupon ordered and adjudg- ed, that the plaintiff in error recover, as for a total loss, the amount found by the jury in the special verdict, with interests and costs, and that the judgment of the Supreme Court be reversed, and the record remitted, &c. Judgment of reversal. 1 Reversing Ante, 127. S. C., 2 Cai. Cos., 217. Cited in 3 Johns. Cas., 133; 9 Johns., 282; 2 Cow., 66, 342 ; 2 Wend., 69. 1. Since the decision of the above cause, several cases have arisen in the courts of Great Britain and of the United States, in which the question as to the effect and conclusiveness of the sentences of foreign courts of admiralty has been variously considered and determined. See Marshall on Insurance 2d ed., p. 420, 436; Park on Insurance, 6th ed., p. 463, 497. And see Geyersv. Aguilar, 7 Term Rep 681 ; Christie v. Secretan, 8 Term Rep., 192 ; Garrells v. Kensing- ton, 8 Term Rep., 230 ; Pollard v. Bell, 8 Term Rep., 441 ; Bird v. Appleton, 8 Term Rep., 562; Price v. Bell, 1 East's Rep., 663; Oddy v. Bovii, 2 East's Rep., 473 ; Baring v. Clagget, 3 Bos. & Pull., 201 ; Lothian v. Henderson, 3 Bos. & Pull, 499 ; Bolton v. Gladstone, 5 East, 155; Baring v. Christie, 5 East, 398; Baring v. Royal Ex. As., 5 East, 99 ; Fisher v. Ogle, 1 Campb. N. P. Cases, 418 ; Donaldson v. Thompson, 1 Campb. .ZV. P. Cases, 429 ; Kindersly et al., \. Chace et al., in Park, 486, and Marshall, 423. The result of the decisions in the English court seems to be that where property is warranted neu- tral, and the court of the belligerent country con- demns it as belonging to an enemy, the sentence, however absurd, is conclusive evidence that the warranty is false ; but where the belligerent country condemns as prize, without adverting to the question of neutrality at all, it does not operate on the truth or falsehood of the warranty, or a fact asserted in the policy of insurance. JOHNSON'S CASKS, 2. 4O9*] *ANDREW VOS AND JOHN B. GRAVES, Plaintiffs in Error, v. THE UNITED INSURANCE COMPANY, Defendants in Ki-ror. Marine Insurance Blockade. Sailing: for a port understood to be blockaded is not a breach of neutrality, so as to effect the war- I ranty in a policy of insurance. 1802 ANDREW Vos, AND JOHN B. GRAVES, v. THE UNITED INSURANCE COMPANY. 469 squadron, and attempting to pass it. Such a construction would open a door for innu- merable frauds, and expose belligerents to be deprived of all the material advantages of a blockade. The most rational doctrine on the subject, I take to be, that forfeiture shall attach in every case, as for a breach of blockade, when a vessel is sailing for a blockaded port, with a notice of the blockade, unless the master proves express- ly thai he had no design, either to break the blockade or fraudulently to elude the blockad- ing squadron. In the case before us there is no such evidence, and therefore no such deduc- tion can fairly be made in favor of the plaint- iffs. I lay out of the case our treaty with Great Britain, and the information given to th master at Cuxhaven, relative to turning vessels back for the first attempt to enter the blockaded port, without seizure. The first is only applicable in cases where the master has no previous notice of the block- ade, but cannot exempt him from the pen- alty annexed to a breach of the blockade, with full notice. The second does not extend protection to vessels the masters of which, with their eyes open, approach the line of blockade for the purpose of breaking it. Besides, if *the [*472 blockading squadron had, from motives of courtesy to neutrals, adopted such a practice, I take it the master of the plaintiff's vessel had no right to run the risk of that courtesy being denied to him, at the expense of the insurers. The risk he assumed was his own voluntary act, for which he is accountable to his employ- ers, but which can attach no responsibility to the defendants. With respect to the second question, I am equally clear that according to the sound con- struction of the policy the defendants are not liable for the risk incurred beyond Hamburg. The plain language of the contract and memorandum is, that the insurance, for the additional premium of two and one half per cent. , was on a voyage from New York to Am- sterdam, by the way of Hamburg, for the purpose of ascertaining the fact whether Am- sterdam was blockaded. If it was, it would be dangerous to proceed to Amsterdam, and in that event the voyage was to terminate at Hamburg, and the additional premium to be returned to the plaintiffs. To suppose that the insurers meant to insure against the risk of entering a blockaded port, is to bottom the cause came before the court on a writ -L of error from the Supreme Court. For the facts in the cause, and the opinion of the court, see ante, pp. 180-191. 47O*] *MR. VAN VECHTEN, Senator. Two questions present themselves to my mind, as material for our consideration in the present case. 1. Whether the master of the plaintiffs' vessel has made such an attempt to break a blockade as to forfeit their natural rights ; j and, 2. Whether, admitting that he has not in- : curred such a forfeiture, the defendants are, j under all the circumstances of this case, liable j for any risk incurred beyond the voyage to Hamburg. With respect to the first question, it appears to be the undisputed law of nations, that a breach of blockade works a forfeiture of vessel and cargo. The precise point in the present case is, whether there was a breach of the blockade. 471*] *There is no room for doubt, that the vessel sailed from Cuxhaven with an intent to enter Amsterdam; and it seems to be conceded on all sides that the master knew of the invest- j ment of that port when he set out. The intent I was certainly an unlawful one, and the act of j sailing, to carry it into effect, must be consid- ered as an overt act towards the execution. If so, the vessel was captured in the prosecution of an unlawful effort to break the blockade. This unlawful procedure on the part of the master was at least an invitation to capture, and does not entitle the plaintiffs to the aid of favorable presumptions against the insurers. But I cannot stop here. The breach of a blockade, in my opinion, does not consist mere- ly in coming to the line of the blockading See another report of above case Vos v. United Ins. Co., and note, 1 Caines' Cas., 7. How reluctantly this doctrine, as to the conclus- iveness of foi-eign sentences has been acquiesced in by some of the judges of the English courts, may be seen from the expressions of Lord Ellenborough, in the cases of Fisher v. Ogle, and Donaldson v. Thompson, where he says, "it is by an overstrain- ed comity that these sentences are received as con- clusive evidence of the facts which they positively aver, and upon which they specifically profess to be founded. "I am by no means disposed to extend the comity which has been showed to these sentences of for- eign admiralty courts. I shall die, like Lord Thurlow, in the belief that they ought never to have been admitted. The doctrine in their favor rests upon an authority in Shower, vol. II., p. 233, Hughes v. Cornelius, which does not fully support it, and the practice of receiving them often leads, in its consequences, to the greatest injustice." In a gazette report of the case of Donaldson v. Thomp- JOHNBON'S CASES, 2. son, Lord Ellenborough is stated to have said, that he should always hold the authorities of for- eign courts to condemn ships as prize to the ut- most strictness of proof, when offered as evidence to affect the rights of third parties, in a court of justice of this country ; that there were some of the most enlightened minds in the country who thought that these sentences of foreign courts ought never to be received in evidence at all on such oc- casions ; that Lord Thurlow never met him with- out saying so ; his mind was full upon it ; he said it was an anomaly in the law, and ought never to have been allowed to have crept into it ; and that he agreed with Lord Thurlow upon that subject, and he should die in the faitli ; but the usage of nations, perhaps, required, certainly authority had decided, that these sentences should be receiv- ed in evidence, and be conclusive on all things on which they opei-ated ; a doctrine, to give way to which, was sufficiently pirLuful iu many instances, 6S1 472 COURT OF ERRORS, STATE OF NEW YORK. 1802 contract on an unlawful basis, because the very intent thereof, in that case, must have been to indemnify the plaintiffs for the loss in- cident to a violation of the law of nations. If so, the contract would be absolutely void. But the supposition that such was the mean- ing of the contract, is repelled by the precau- tions used by the plaintiffs themselves. If the defendants had assumed the risk of proceed- ing to Amsterdam, when in a state of blockade, why did the plaintiffs agree to pay an addi- tional premium for first going to Hamburg to ascertain the danger arising from the reality of the blockade? For that was the danger to which they expressly referred. Why stipulate that the risk should end at Hamburg, in case it should be found dangerous to proceed farther? 473*] *These precautions evince, to my complete satisfaction, that it was neither under- stood nor intended between the parties, at the formation of their contract, that the defend- ants should incur any risk beyond Hamburg, if it was there ascertained that Amsterdam was blockaded. I am therefore of opinion upon the second question, that the capture of the plaintiffs' ves- sel and cargo, on the way from Hamburg to Amsterdam, while the latter port was in a state of blockade, was a peril not within the policy. The result is, that according to my opinion, the judgment of the Supreme Court must be affirmed, but so modified that the additional premium of two and one half per cent, be re- turned to the plaintiffs. MR. GOLD, Senator. The question in this cause, is, whether the sailing of the brig Col- umbia from Cuxhaven, with a destination for Amsterdam, and an understanding that it was blockaded, is a breach of the blockade, and a legal cause of capture and condemnation? The question may be qualified, perhaps, with the addition of an intention to enter the Texel, in the event only of the blockading squadron being blown off the coast, so as to leave the port, in fact, open for entrance. There is nothing in the verdict, or the assumption of facts by Sir William Scott, as the grounds of his determination, to warrant the conclusion of an attempt to break the blockade, any further than the same is supported by proof of a sailing from Cuxhaven for Amsterdam. Upon fundamental principles on which our municipal code of criminal law is established, mere intention, with some very peculiar excep- tions, is not made the subject of judicial ani- madversion. That the moral law, which ar- raigns intention, should be adopted in the law of nations with a greater latitude than in our municipal system, is a subject of some sur- prise, especially when the application is for the benefit of *belligerents, and to the [*474 prejudice of neutrals. In intention, there is nothing certain and permanent ; it is controlled by every reflection ; it is changed, dropped, and renewed, 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 pertitentioR is em- braced. If there is an anticipation of the undertaking, by advances towards the theatre of action (as the sailing from Cuxhaven in this instance), how wide a space yet intervenes! To the dominion of how many various causes is the intention subject, 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 progress ; the perils of the sea may overwhelm ; the information received at Cuxhaven that induced the sailing, may be contradicted; 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 sail- ing 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 vexa- tion. Nothing is to be found in the verdict or facts stated, or assumed in the sentence of the admiralty, from which to infer the progress of the Columbia from Cuxhaven to the Texel ; Sir William Scott meets her at the threshold, at the port of departure, and pronounces the sailing with an intention of evading the block- ade, to constitute the offense. These are his words. It is fairly presumable that the ground thus taken by the judge corresponded with the but he should never consent to extend it an iota beyond the letter. In Vasse v. Ball, 2 Dall., 270, decided in the Supreme Court of Pennsylvania, in 1797, where the property was warranted neutral, and the libel stated several jrrounds of forfeiture, and the sentence of condem- nation was general, without specifying any particu- lar cause of forfeiture, the court held that the as- sured, notwithstanding 1 the sentence, might show that the property was American. In the case of Dempsey, Assignee of Brown, v. The Insurance Company of Pennsylvania, decided in the High Court of Errors and Appeals, in the State of Pennsylvania (in 1808), it was held, after two ar- guments,that the sentence of a foreign court of ad- miralty was conclusive, not only as to its direct effects, but also as to the facts directly decided by it ; Judges Rush, Roberts.Hamilton, Young and Wil- son, in the affirmative, Judge Cooper contra. 1 Binn. Kep., 299 n. See also, Colhoun v. Ins. Co. of Penn- sylvania, 1 Binn. Hep., 293 ; and Galbraith v. Gracie, in the Circuit Court of the United States. (1 Binn. Rep., 293, note.) The Legislature of Pennsylvania, by an Act of the 29th March, 1809, declared that no sentence of any ^foreign) court, having or exercising jurisdiction of prize, shall be conclusive evidence in any case, of any fact, matter or thing, therein contained, except 582 of the acts of such court ; provided, that nothing in the act shall be construed to impair or destroy the legal effects of such sentence on the property affect- ed, or intended to be effected, thereby, &c. In the case of Rose v. Himely, 4 Cranch's Rep., 241. the Supreme Court of the tfnited States decid- ed that a sentence of condemnation by a competent court, having jurisdiction over the subject matter of its judgment, is conclusive as to the title of the thing claimed under it. Chace, J., and Livingston, (February, 1808) held that the sentence of a foreign court of admiralty, condemning a vessel for breach of a blockade, was conclusive evidence of that fact, as between the insurer and the insured. Marshall, Ch. J., Gushing, J., Washington, J., and Johnson, J., in the affirmative. Chase, J., and Livingston J., contra. Todd, J., not having heard the argument, gave no opinion. Washington, J., and Johnson, J., were the only judges who appear to have stated the reasons for their opinions. See also, Fitasimmons v. Newport Ins. Co. (4 Dallas. 1*5.) The same question was lately brought before the Supreme Court of Massachusetts ; but the result is not known. JOHNSON'S CASES, 2. 1802 PHILIP URBIN DUGUET v. FREDERICK RHINELANDER ET AL. 474 proof, and was as broad as the evidence would justify. The record in the cause presents no fact to warrant a contrary conclusion. No in- ference is to be made from the plaintiffs' com- munication by letter, of the 27th June, that the defendants consented to an attempt to enter a blockaded port, as that letter closes with the 475*] observation *that the blockade might probably be withdrawn before the arrival of the vessel. Therefore, quite the contrary is rather to be supposed. It is unnecessary to give an opinion on the case of an actual at- tempt to enter a port, during the interruption of the blockade, 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. I am therefore of opinion that there is no authority or precedent binding on this court 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 vexa- tious to neutrals; that the principle of the late treaty between England and Russia is more propitious to the interests of commerce, and sufficiently favorable to the rights of belliger- ents, and merits high respect from all neutral powers; and that, therefore, the judgment be- low ought to be reversed. The majority of the court being of this opin- ion, it was thereupon ordered and adjudged that the judgment of the Supreme Court be reversed, and the record remitted, &c. Judgment of reversal. l S. C., 1 Cal. Gas., T. Reversing Ante, 180. Cited in 7 Johns., 53. 476*] *PHILIP URBIN DUGUET, Plaintiff in Error, FREDERICK HHINELANDER ET AL., Defendants in Error. Marine Insurance Alien Imigrant Flagrante Bello Naturalized Warranty Neutral Property Disclosure. Where a subject of a belligerent State emigrates to this country, flagrante belto, and becomes natu- ralized, such naturalization will support a warranty of neutral property in a policy of insurance ; and the assured need not disclose to the insurer the time of his emigration. Citations Vattel, bk. 1, ch. 19, sec. 220 to 233 ; bk. 2, ch. 27 ; 1 Johns. Cas., 363. THIS cause was brought before the court by writ of error from the Supreme Court. For the facts in the cause, and the opinion of the court below, see 1 Johns. Cas., 360. 1. See Williams v. Smith, 2 Caines's Rep., 1 ; Lio- tard and Others v. Graves, 3 Caines's Rep., 226; Schmidt v. The United States Ins. Co., 1 Johns. Rep., 249 ; Suydam and Wyckoff v. The Marine Ins. Co., 2 Johns. Rep., 138; Calhoun v. Ins. Co. of Pennsyl- vania, 1 Binn. Rep., 293, 305 ; Pitzsimmons v. New- port Ins. Co., 4 Cranch's Rep., 185. See another report of the above case, Duguet v. Rhinelander, and note, 1 Caines Cas., 25. -JOHNSON'S CASES, 2. MR. VAN VECHTEN, Senator. The ques- tions for our consideration are: 1. Whether the plaintiff's emigration and naturalization here, flagrante betto, entitled him to the national character and protection of an American citizen in relation to an enemy of France; and, 2. Whether the circumstances of his emi- gration and naturalization did not materially increase the risk of the insurers, and therefore ought to have been disclosed to them? With respect to the first question, it appears to me to be the settled doctrine of the most ap- proved writers on the law of nations, that emi- gration in time of war does not change the character of the emigrant in relation to the parties at war. (Vattel, bk. 1, ch. 19, sec. 220 to 223 ; bk. 2, ch. 27.) By the declaration of war he becomes a party to the contest between his government and the enemy. This situa- tion attaches to it certain duties and responsi- bilities, from which he cannot by his own mere act absolve himself. A contrary doctrine would be inconsistent with the soundest maxims of national policy, because it would encourage mercantile men, at the commencement of every war, to change their residence and character, in order to ex- empt themselves from the burdens and losses which are incident to a state of war. *I therefore concur in the opinion of [*477 the Supreme Court, that the plaintiff's emigra- tion and naturalization, flagrante betto, cannot, with respect to Great Britain, entitle him to the rights of an American citizen. But, independent of this question, I take it that this court has settled a principle in the case of Arnold & Ramsay v. The United In- surance Company (1 Johns. Cas., 363), which is equally decisive against the plaintiff upon the second question. In that case the property captured was also warranted to be American; but because Haw- ley, one of the partners, was resident and en- gaged in trade within the Spanish dominions, although an American in fact, it was held, that his national character was thereby rendered so far questionable in relation to the belligerents as to render the disclosure of those circum- stances necessary to render the policy valid. In the present case, the emigration of the plaintiff, flagrante betto, placed his national character, with respect to the enemies of France, in a questionable and suspicious light, and thereby the risk of the capture of his prop- erty at sea was materially increased. This circumstance was therefore necessary to be dis- closed to the insurers, and the omission to dis- close it avoided the policy. The conclusion upon both questions, in my opinion, is, that the judgment of the Supreme Court ought to be affirmed. . MR. GOLD, Senator. The first question arising from the consideration of the court in this cause is, whether the plaintiff has verified his warranty of American property in the goods insured. The determination of this point involves the important question whether the plaintiff is to be deemed, for the pur- poses 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 recognized ; while 583 478 COURT OF ERRORS, STATE OF NEW YORK. 1803-- 478*1 the course to which duty *prompts is plain and readily perceived ; yet so dif- ferent are the circumstances of different States, so various their policy, that the right of citizens to emigrate during war must, so far as respects the parent State, depend on the particular ordinances of each individual com- munity. What might not be inconsistent with good policy in a State possessed of an over- flowing population and but a scanty subsist- ence, would be quite different from that of a State with a thin population, requiring all her hands for defense and with sufficient bread for all her citizens. Was the condition of all nations alike in this respect; was the same rea- son 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 expressed in language too unequivocal to admit of a doubt at this period. If a State is assailed by external enemies, and requires for defense the united efforts of all its citizens, of all those to whom it has given birth, a prohibition against emigration, as we have witnessed in France, by the ordin- ances of 1704 and 1744, will attain all that is necessary in this respect to the safety and de- fense of the State. If such prohibition is not interposed the door is open to emigration. But is an emigration which is lawful in relation to the parent 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 resources, or aiding the enterprises of the State, emigrate to and take a stand in *a neu- tral country, in order to mask mercantile pro- jects under a neutral flag, there can be no hesi- tation in pronouncing such emigration fraudu- lent, and that an establishment, and residence, for such unwarrantable purposes, cannot ac- quire to the emigrant a neutral domicile ; 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. 479*] When such a case is brought *before the court, such a determination will be had as will preserve to the belligerent the full exer- cise of its rights over the property of its enemy. But because the right of emigration may be abused in time of war, it by no means fol- lows that such right does not exist; and though it may be difficult to detect and punish such abuses, the argument from thence against the right cannot prevail. As far as appears from the record in this cause, the emigration of the plaintiff pro- ceeded from a common principle of action that prevails more or less in all periods, and all countries ; /or the subsistence of himself and his family he removed to and acquired a domicile in this State. This domicile, upon general principles, confers to the purposes of commerce, the right of an American citizen. Native Englishmen domiciled in America, by a decision of Westminster 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 protec- tion. Upon the point of undue concealment, raised in the cause, after the foregoing opin- ion, it will be necessary only to add that if the faith of contracts should be deemed to have required of the plaintiff a disclosure of his condition, as affording a pretext for condemna- tion, undue concealment is a fraud, odious in law, and as such, not being found by the ver- dict, is not to be presumed. For the foregoing reasons the judgment of the Supreme Court ought to be corrected, and the judgment here should be as for a total loss. The majority of the court being of the same opinion, it was therefore ordered and ad- judged that the judgment of the Supreme Court be reversed, and the record remitted, &c. Judgment of reversal. 8. C., 1 Cai. Cas., 25. Reversing ante 360. Cited in 1 Johns., 11. *NICHOLAS GOIX. Plaintiff in [*48O- Error, v. NICHOLAS LOW, Defendant in Error. Marine Insurance Sentence " Lawful Priee " Evidence. In an action on a policy of insurance, the words " condemned as lawful prize," in the sentence of a court of admiralty, affords no necessary inference that the vessel was enemy's property ; and such sen- tences are not conclusive evidence of the fact. cause came before the court by writ of J- error from the Supreme Court. The facts contained in the special verdict were the same as those stated in the report of this case, and that of Goix v. Knox (1 Johns. Cas., p. 337, 341). After argument, the court reversed the judgment of the court below, on the ground that being condemned as lawful prize afforded no judicial inference of the vessel's being enemy's property, as there may be other just causes of condemnation ; and the sentence of the Court of Admiralty not being conclusive, there were no circumstances in the case authorizing a condemnation, nor showing a breach of warranty. Judgment of revei'sal. l Reversing 1 Johns. Cas., 341. 1. From the cases of Pollard v. Bell. Bird v.. Appleton, 8 Term Rep., 434, 562; Price v. Bell, 1 East, 663; and Fisher v. Ogle, 1 Campb. N. P. Cases, 418, it seems now to be the opinion of the English courts that where the sentence of the foreign court of admiralty condemns merely as good and lawful prize, without adverting to the question whether it is neutral or enemy's property, such sentence is not conclusive. NOTE. ^8 to judgment of foreign court, its effect,. 1. See Wilson v. Maryatt, 8 Term Rep., 31; Af- see Vandenheuvel v. United Insurance Co., ante 451,. firmed, in error, see 1 Bos. & Pull., 430. I and note. 584 JOHNSON'S CASES, 2. 1802 JAMES JOHNSTON AND ROBERT WEIR v. DANIEL LXJDLOW. 481*] *JAMES JOHNSTON AND ROBEET WEIR, Plaintiffs in Error, v. DANIEL LUDLOW, Defendant in Error. 1 . Marine Insurance Alien Domiciled in New York Trading Warranty Free from Charge Seizure or Detention Contraband of War. 2. Sentence of Admiralty Court Evi- dence . 3. Breach of Warranty To Consti- tute What Must Appear . A subject of Great Britain domiciled in New York, and engaged in trade from the United States, with the enemies of Great Britain, is considered as a citi- zen of the United States in regard to such trade, which is not within the clause in the policy of insur- ance by which the property is warranted by the assured free from any charge, &c., in consequence of a seizure or detention for or on account of any illicit or prohibited trade, &c. A sentence of a court of admiralty is only prima facie evidence of any fact, and will have no effect, if sufficient appears in the sentence to rebut the presumption of the exist- ence of such fact. To constitute a breach of the warranty by the assured against seizure or detention on account of illicit or prohibited trade, &c., there must be an illicit or prohibited trade, in fact, existing. It is not sufficient that there has been a condemnation under pretext of such a trade. Citation-1 Bos. & Pull., 430. THIS cause was brought before this court by writ of error from the Supreme Court. The plaintiffs in error, who were natives of Great Britain, residing and engaged in trade in New York, but not citizens of the United States, chartered the schooner Aurora of Peter Laing, for a voyage from New York to La Vera Cruz. A policy of insurance was effected on the cargo from New York to La Vera Cruz, with liberty to touch at the Havana. The assured knew at the time that the plaintiffs in error were not American citi- zens. The defendant in error also knew that the tin was on board, and consented to insert in the clause relative to illicit trade, and after the word " detention," the words " of the goods hereby insured," and which were inserted to save the assured in case the tin should be adjudged contraband. The other facts in the case were the same as those stated in the cases of Laing v. The United Insurance Co. , in the Supreme Court, reported ante, p. 174, 179. The sentence of the judge (Kelsall) of the Vice-Admiralty Court, at New Providence, pronounced August 2d, 1799, was as follows: " The Aurora is an American vessel, bound to La Vera Cruz, by way of the Havana, whither she is first to go, laden with property purchased and shipped in America. Under these circumstances only I cannot deem her an adopted vessel ; whatever she may become, she is not yet privileged. As to the presump- tion of the property being enemy's, I think 482*] there is some, and indeed *not a little obscurity in the whole transaction. The ves- sel is entitled to a register, and has it not, nor NOTE. Judgment of foreign court, its effect. See Vandenheuvel v. United Insurance Co., ante 451, and note. Nationality of insured. See Murray v. United Insurance Co., ante 168, and note. See another report of the above case, Johnston v. Ludlow and note. 1 Caines Cas., 29. JOHNSON'S CASES, 2. is any reason shown to account for the defi- ciency. The multiplicity of needless marks by which the packages are distinguished ; the many unnecessary invoices, none of which are signed, so contrary to the usages of comme rce and the practice of merchants ; the great amount of the charter-party, and the very large quantity of articles, the property of the captain; the caution with which Weir, the supercargo, swears as to the property, coupled with some part of the master's and mate's answers to the standing interrogatories; these, I say, are what might have induced me to decree further proof, were there not circum- stances in the case fully to warrant the decision I have come to on the subject. ' ' These are principally the contraband of war, which are on board, and the relation the parties who ship them stand in, as well with respect to this particular transaction, as gener- ally to their duty towards Great Britain. It appears that all the individuals concerned are natural-born British subjects, but assume the privilege of trading with the king's enemies, as being citizens of the United States of America. "1. Peter Laing, the master, swears that he has sailed out of America sixteen years past; is a citizen, and resides with his wife and family at New York. "2. Donald Denoon, the mate, swears he has been admitted a citizen of the United States about twelve months. "3. Patrick Weir, the supercargo, swears that he has resided in America four years, and considers himself a citizen of the United States, having made application to be admitted as such. ' ' 4. James Johnston, one of the owners of the cargo, Laing swears is an American citizen , to the best of his knowledge. *"5. Robert Weir, the other princi- [*483 pal owner of the cargo, is sworn by Laing to be also, to the best of his knowledge, a citizen, and he moreover swears he has known him five years. ' ' It therefore results from this evidence that Patrick Weir is a British subject, that Donald Denoon cannot, notwithstanding his admission as a citizen of America, be considered such, his case depending (as far as this court has any- thing to do with it) on Hughs' case already decided ; and that the right to be taken for, and deemed an American citizen, supposing the Treaty of Amity and Commerce to be so con- clusive as it is contended to be, is by no means shown or made out in the cases of James Johnston and Robert Weir. Laing 's case is of a different complexion ; he has resided in the American States since 1783 ; and as it may be expected from me, I do not hesitate to add that after maturely considering the relative situa- tion and connection between Great Britain and America, and after duly estimating the neces- sity imposed by the circumstances of the times on the officers of the admiralty courts to resist the increase of an evil already carried to an alarming excess, the emigration of British sub- jects, for the purpose of screening themselves from the general effects of the war their coun- try is engaged in, and of embarking in com- mercial enterprises, of whatever nature, with the enemy, under the protection of neutral 6*5. 488 COURT OF ERRORS, STATE OF NEW YORK. 1802 flags; I do not think that I ought to assume a period earlier than the commencement of the war with France, as the epocha from which the natural-born subjects of Great Britain, though naturalized and commorant in a neu- tral State, are to be viewed and considered with respect to their native country, in any other light than as those who remain at home. Those who have settled in America before that period I must leave in the possession of those rights which they appear, by the tacit consent 4 84*] of Great Britain, to have *hitherto exer- cised unmolested. It would have been on these principles, and on that of not being con- vinced as to the real ownership of this proper- ty, that I should have decreed further proof with respect to Weir and Johnston, had it not been for the contraband of war which they have shipped on board this vessel. ' ' Tin plates are assuredly contraband. They are indispensably necessary to the equipment of all armed vessels, and form a most essential article in ordnance and military stores. Now, though in this case the value of them is justly considerable six hundred pounds currency at the least ; yet I confess it appears to me so strange, that for the sake of the profits on this sum merchants would endanger a very valu- able cargo, that I am induced to think that Johnston and Weir were only complying with an order, or that Spain insists on a portion of every cargo being contraband, to entitle a ves- sel to entry in certain ports. Be it however as it may, I must do my duty; a duty in this in- stance especially incumbent on me rigidly to execute, from the situation those men stand in with respect to their native country, by en- forcing the strict law of nations, as laid down in Lee on Captures, a law which is not altered in any respect by the American Treaty, and is conformable to the practice of the High Court of Admiralty at home, as we know from the highest authoritiy. " I do, therefore, hereby dismiss the answer and claim, as far as respects the property of Patrick Weir, Donald Denoon, James John- ston and Robert Weir, and condemn the same as lawful prize to the captors. "I sentence the claimants in costs, and dis- miss the libel with respect to the vessel and property of Peter Laing." On the argument of the cause three ques- tions were raised for the consideration of the court. 1. Whether the trade, in regard to the 485*] characters of the plaintiffs, *was illicit? 2. Whether tin in blocks and plates is an article contraband of war? 3. Whether the warranty contained in the special clause in the policy, in regard to illicit or prohibited trade, or trade in articles contraband of war, extended to a seizure or detention, on the allegation of being engaged in such trade, when, in fact, there was no such trade? MR. GOLD, Senator : On the first point, the domicile of the plaintiffs being established here, without any fraudulent motive, but for fair purposes of commerce, this court ought not to sanction the right of Great Britain to seize and confiscate their effects, as has been done in this instance. The case of Maryatt v. Wilson, cited from 1 Bos. & Pull. Rep., p. 430, which arose under the article in our late treaty with England regulating our East India trade, is not inapposite. In that case the English court conceded to a native subject, domiciled in America, the right of an American citizen in relation to commerce with the Indies. On the second point, 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 pro- fesses to detail, not only the causes for con- demnation, but those on which 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 sen- tence, as prima facie evidence, avail the de- fendant here ; as the presumption of facts to warrant a condemnation is repelled by a de- tail of the precise grounds on which the sen- tence was pronounced. On the last point raised by the underwriter, that the warranty protects him against any loss by seizure or detention, for or on account of any illicit trade or contraband of war, nothing *in this [*486 provision is relevant to the case before the court. The clause literally extends only to partial losses occasioned by a seizure or tem- porary detention, not followed by a condem- nation; and if extended farther, it cannot have been the intention of the parties to the policy to throw upon the assurer 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 of" is not equivalent or convertible into the words " under pretence of," but may well be understood to mean " for the cause 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 contrary interpretation. The facts in the cause do not, as the law is now settled in Great Britain, bear out the conclusion of the Vice- Admiralty Court; nor can anything in the warranty of the assured protect the underwriter. I am of opinion that the judg- ment of the court below ought to be reversed. This being the opinion of a majority of the court, it was thereupon ordered and adjudged that the judgment of the Supreme Court be reversed ; and that the plaintiffs in error re- cover the sum assessed by the jury in the special verdict, as for a total loss ; and that the court below tax the costs for the plaintiffs in error as if judgment had been given for them as for a total loss ; and that the plaintiffs in error also recover interest on the judgment so found for a total loss, from the time of render- ing the judgment in the Supreme Court until the third Tuesday of April next, to be assessed and taxed by the clerk of this court, and that the record be remitted, &c. Judgment of reversal. Cited in 6 Cow., 425 ; 9 Bos., 387 ; 6 Allen, 394. JOHNSON'S CASES, 2 1802 PETER LAING v. THE UNITED INSURANCE COMPANY. 487 487*] *PETER LAING, Plaintiff in Error, v. THE UNITED INSURANCE COMPANY, Defendants in Error. THE SAME v. THE SAME. THE SAME v. THE SAME. rpHESE causes were also brought before the JL court by writs of error from the Supreme Court (see ante, p. 174, 179), and the same questions arising as in the preceding case of Johnston and Weir v. Ludlow, the judgments of the Supreme Court were reversed for the same reasons. Judgment of reversal. FREDERICK RHINELANDER, WM. KEN YON, ET. AL., Plaintiffs in Error. v. JOHN JUHEL, Defendant in Error. THIS cause came up on a writ of error from the Supreme Court (see ante, p. 121) ; and after argument, the court ordered and ad- judged that the judgment of the court below be affirmed, and the record remitted, &c. Judgment of affirmance. 488*] *STEPHEN HITCHCOCK, Plaintiff in Error, v. EFPY SABLE, Defendant in Error. THIS cause came before this court by writ of error from the Supreme Court (see ante, p. 79), and after argument, the court ordered and adjudged that the judgment of the Supreme Court be affirmed with costs, &c. Judgment of affirmance. JOHN R. LIVINGSTON, Plaintiff, in Error, v. WILLIAM ROGERS, Defendant in Error. 1. Letter of Attorney Lost Evidence of Con- tents. 2. Suspicion of Suppression Upon Trial Judges Duty in Charge. Parol evidence of the contents of a letter of at- torney, by the person to whom it was given, is ad- missible, if it is proved satisfactorily that such power has been lost. Citation 10 Co., 93 ; Jenk. Cent., 19 ; 1 Inst., 227 b.; 2 Atk., 71 ; Barn. Cha. Rep., 307 ; Amb., 247 ; 3 Term H., 151 ; 1 Esp. Rep., 337. THIS cause came before the court on a bill of exceptions to an opinion of a judge of the Supreme Court, at the circuit. NOTE. See another report of above case, Livings- ton v. Rogers, 1 Games' Cas.. 27. JOHNSON'S CASES, 2. The plaintiff here, who was also plaintiff below, commenced an action in the Supreme Court to recover from the defendant the dif- ference on a stock contract, dated the 19th March, 1792, by which the latter promised to receive from him twenty shares of the Bank of the United States, on the first of June, 1793, and to pay for them at the rate of 78 per cent, advance. The defendant pleaded non assumptdt. *On the trial the plaintiff, to estab- [*489 lish a tender of the stock, offered a witness, who proved "that on the 1st June, 1793, he attended, in person, at the banking-house of the United States, in the city of Philadelphia, at the request of the plaintiff, and, as his at- torney, to transfer twenty shares of the said bank stock to the defendant, pursuant to the agreement stated in the declaration ; that a few days previous to his attendance at the banking-house he received from John Wilkes, a notary public, residing in the city of New York, a letter of attorney, signed by the plaintiff, with whose handwriting he was well acquaint- ed, and the execution of which was attested by the said Wilkes, in his capacity of notary, and under his notarial seal ; that he attended with the said letter of attorney, and twenty shares of the bank stock, aforesaid, at the banking-house, on the said first day of June, and continued there during all the time when the said stock could be transferred, and offer- ed, by virtue of the said letter of attorney, to transfer the said twenty shares to the defend- ant, for and in behalf of the plaintiff. That he gave several days' notice to the defendant, by directions of the plaintiff, that he should attend at the said bank, on the said day, for the purpose aforesaid. "That no person appearing to receive or pay for the said stock, he left the said bank- ing-house without making an actual transfer thereof, and put the said letter of attorney into his iron chest, of which he alone kept the key. That he never delivered the said letter of at- torney to the plaintiff, and that the plaintiff never had or saw it after his offer to transfer as aforesaid. That he considered the said let- ter of attorney as belonging to himself, and that the plaintiff never gave him any direc- tions to keep or destroy it. That he did not know it would be of any use to produce the said letter of attorney on the present trial. That since the commencement of this action he has searched among his papers in the iron *chest and elsewhere, for the letter of [*4OO attorney, but cannot find it, and verily be- lieves he has destroyed the same, not thinking it of any utility to be preserved." Wilkes was also produced as a witness for the plaintiff, and deposed, "that he never de- livered a letter of attorney out of his office to transfer any species of stock, until the party making it had acknowledged the execution of it before him, although he had sometimes de- livered -letters of attorney which contained a blank for the attorney's name." The plaintiff's counsel then offered to give parol evidence of the contents of the letter of attorney, to which the defendant's counsel ob- jected. The judge allowed the objection, and determined that the plaintiff should not be permitted to eive parol proof of the contents 587 490 COURT OF ERRORS, STATE OP NEW YORK. 1802 of the letter of attorney. To this opinion of the judge the plaintiff's counsel tendered a bill of exceptions on which he brought a writ of error, returnable to this court. A verdict was taken for the defendant, and judgment given thereon. LANSING, Chancellor: The loss of the letter of attorney is not attributed, in this case, to inevitable accident, and the question to be de- cided is, whether this is a case in which parol proof of its former existence and import is admissible. That the exception to the strict rule of law, originally extended only to writings destroyed by inevitable accident, or withheld by the party opposed in interest to their introduction, is not contended. But on the part of the plaintiff, it is insisted, that an enlarged liber- ality has progressively obtained, and that to entitle the party to resort to parol proof of the contents of a deed, nothing more is necessary than to show that the incapacity to produce it is not attributable to his positive fault, so as to involve a mala fides. 491*J *The decisions of the English courts, since the period Lord Mansfield be- gan to preside in the Court of King's Bench, have assumed a degree of liberality in adapt- ing the ancient principles of jurisprudence, not only to the exigencies which the extent and activity of modern commercial specula- tions have rendered unavoidable, but to every object of commutative justice which can affect the interests of the members of a great and opulent community. In the general relaxation which has obtain- ed, the strictness of this rule of evidence has, however, as it appears to me, been completely preserved ; and if, in the multifarious com- plications incident to the state of property in Great Britain, its intrinsic worth has so effectu- ally resisted constructive innovations, it is a strong argument of its correctness and utility. That it has been so preserved, I think, must appear evident from a review of the cases which have been cited to induce this court to pronounce the present case within the exception to the rule. The general rule, as laid down in 10 Co. Rep., 93, is, that, as the best evidence the thing is capable of, the existence of the deed must be proved by its production. (Gilb. Law of Evid., 93.) " 1. To enable the court to determine on its legal operation. 2. To show that it is genuine and not facti- tious ; to which is added, 3. That it was not made on condition, as with power of revocation. But great and notorious extremities, as by casualty of fire, and that all evidences were burnt in the party's house, are deemed ex- ceptions. (10 Co., 93.) This doctrine is corroborated by some other cases (Jenk. Cent., 19; 1 Inst., 227. by, which leave no doubt that great and notorious ex- 492*] tremities only were admitted *as ex- ceptions ; thus, loss by burning of houses, by rebellion or robbery, are instanced. The case of VUliers v. Vittiers, cited in argu- ment, from 2 Atk., 71, lays it down generally that parol evidence of a "deed may be given, 688 and the' manner of its being lost, unless it hap- pens to be destroyed by fire, or lost by robbery or any other unavoidable accident which, it is added, are sufficient excuses of themselves. It could certainly never have been the in- tent of the reporter to make Lord Hardwicke say, that evidence of the manner of the loss might be given, unless it was destroyed by fire, &c., which, as it was a sufficient excuse, must necessarily render such proof useless, and yet such is obviously the scope of the ex- pression. How, then, were the court to dis- cover the manner of the loss, if it was a fact respecting which no evidence was to be ad- mitted? The case is silent as to the facts to which these observations applied ; but we find the case reported in Barnadiston's Chancery Re- ports, 307. There it appears, that deeds were alleged to be lost ; that the Lord Chancellor declared it "doubtful whether there were such deeds ;" but instead of directing an issue to determine whether the deeds had existed, and were so lost, as stated, which seem the points raised by him in discussing the case, he di- rected an issue to try the validity of those deeds. But the broad principle laid down in Atkyns is not even glanced at. This case is so loosely and inaccurately re- ported, that I think little reliance can be placed on either of the reports for the exposition of the rule. In the case of Saltern v. Melhuish (Ambl., 247), the precise point before the court was, whether the evidence of the destruction of the deed was sufficient? It is stated in that case that Roger Melhuish had burnt the deed of assignment of a term, which the plaintiff claimed under, and evi- dence was given of the contents ; *that [*493 the deed of settlement in pursuance of which the deed of assignment was made, was in cus- tody of Lady Berry, the surviving trustee therein named; that she had expressed appre- hensions, a few days before her death, that it would be taken away by Roger, with whom she then lived; that after her death search was made for it by her trustees, and that it was missing, and one of the witnesses said that she had often been present when Roger's wife quarreled with him for not destroying the deed. The Lord Chancellor observes that evidence of loss or destruction generally depends upon circumstances ; and it is very rare, even in case of destruction, that positive proof can be had. If it was necessary to lay down the general rule with greater latitude to comprehend this case, it must have been extremely strict, for it certainly presents a combination of strong cir- cumstances ; the deed was in possession of Lady Berry a few days before her death ; she lived with Roger Melhuish ; it was sought for in vain after her death ; Roger destroyed the assignment ; his wife quarreled with him be- cause he had not destroyed the deed of settle- ment, which of consequence showed that he had it in his possession. These circumstances established the most forcible presumptions against Roger that he had either destroyed or secured it ; and either being established, parol proof of the import of the deed was admissi- ble, on the ground of relief against spoliation. JOHNSON'S CASES, 2. 1802 JOHN R. LIVINGSTON v. WILLIAM ROGERS. 493 The case of Read v. Brookman (3 Term Rep., 151) merely proves that in the Court of King's Bench, in England, the form of declaring has been altered to obviate the difficulty of main- taining an action on a deed lost or destroyed. The new form was devised to get rid of a tech- nical nicety, and to permit the party, in case of loss and destruction, to prove the circum- stances of the loss and the import of the deed 494*] to the jury, instead of *stopping him At the threshold, by requiring its actual pro- duction at the time of filing the declaration. It cannot, therefore, bear upon the present case, even if it could be considered as au- thority. This court is now to determine a general rule of evidence ; if it is precisely defined and well understood, it becomes an authority by which .all the courts in the State are to regulate their -conduct Hence it becomes important to con- sider its tendency. In the cases cited, the instances to which the exceptions of the rule apply, are loss by fire, rebellion and robbery. All these involve cir- cumstances supposed to be beyond the control of the party; they are either the effect of inev- itable accident, or of the acts of others in vio- lation of law. None of them go the length of this case ; and as far as the general rule is ap- plied to particular cases there is no instance .among the cases adduced in argument, or any others which I have been able to discover, in which it has been extended beyond these nar- row limits. It is true analogies appear to have been con- templated, but they were strict, and from the application of the general expressions respect- ing them, they appear not to have been estab- lished with any degree of latitude. If a departure is permitted, in construing the extent of this exception, from cases of acci- dent not in the power of the party to control ; if it is assumed as a rule that the neglect of a party, or, as it is termed in legal phraseology, his laches, is to operate to make that evidence which originally was not so, a door is opened to every species of contrivance which the in- genuity of interested and wicked men can sug- gest. If a deed is defective, so as not to stand the test of legal investigation, secreting or de- stroying it will render it valid. If it is inca- pable of being proved in the ordinary mode, evidence of its existence and loss will supply the defect ; and if it contains a clause of revocation on condition, a similar operation will render it absolute. 495*] *It was the business of the plaintiff to preserve his evidence ; it was an inexcusable neglect, to leave it exposed to destruction from a want of care ; and that it was left in the hands of his attorney, who destroyed it as use- less, is no reason for permitting him to resort to a species of proof which would otherwise be incompetent. I have supposed in treating of this subject, that the destruction of the deed was fully proved ; that, however, is not the case ; it was put in an iron chest ; it was searched for there and elsewhere ; it was not found, and from these circumstances the witness believes he has destroyed it. Whatever his belief may be on JOHNSON'S CASES, 2. this occasion, this court, if they suffer his tes- timony to weigh in their decision, must, from the facts stated, be induced to believe with him. From those facts it is possible, nay it is probable, that the deed may not have been de- stroyed. I have not adverted to the observation made in argument that this is a stock contract which merits no peculiar indulgence. I think this consideration may be well admitted as a reason for not relaxing the rule of evidence in its favor. Upon the whole, I have no doubt but that the opinion of the judge who tried the cause was correct, and I am, therefore, for affirming the judgment. MR. GOLD, Senator : 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 let- ter of attorney to M'Evers, under the circum- stances detailed in the bill of exceptions, or must the instrument itself be produced? The ancient rule of the common law was highly rigid in this respect. It dispensed with the production of instruments, in a few select cases, and then only for peculiar and specific causes. But experience under that rule has, in the progressive improvements of Eng- lish jurisprudence, resulted in a relaxation *of the law on this subject. The non- [*49O production of instruments is now excused, for reasons more general, less specific, upon grounds more broad and liberal than were formerly admitted. In Bead v. Brookman (3 Term Rep., 151), a declaration on a deed was sustained, and the profert dispensed with, upon the general allegation of a loss by time and accident. In Beckford v. Jackson (1 Esp. Rep., 337), the plaintiff counted on a deed lost or mislaid ; upon which issue was taken, and the same was recognized, as warranted in law, by Lord Kenyon, who presided at the trial. Other cases are to be found in the English re- ports of similar import sanctioning the same principle. Upon the authority of those cases, and the reason of the thing, I am of opinion that parol evidence of the contents of the let- ter of attorney to Mr. M'Evers ought to have been received, and that, therefore, error has intervened in this respect. Upon the admis- sion of such testimony, should the trial dis- close evidence, or reasonable grounds of sus- picion of a suppression of the instrument, of mala, fides in the plaintiff, or should the evi- dence of its existence and legal efficacy not be clear and satisfactory, it will become the duty of the judge to direct and charge the jury for the defendant. A venire facias de now must, therefore, be awarded. A majority of the court being of the same opinion, it was thereupon ordered and ad- judged that the judgment below be reversed ; that the record be remitted, and that a venire facias de novo be awarded. Judgment of reversal. 8. C., 1 Cai. Gas., 27. Cited in 2 Cai., 367 ; 18 Johns., 74 ; 12 Wend., 175. 589 [END OP THE CASES IN ERROR.] REPORTS OF CASES ADJUDGED THE Supreme Court of Judicature OF THE From January Term, 1799, to January Term, 1803, Both Inclusive, TOGETHER WITH CASES DETERMINED IN THE COURT FOR THE CORRECTION OF ERRORS DURING THAT PERIOD. BY WILLIAM JOHNSON, Counselor at Law. Legum interpretes, judices : legum denique idcirco omnes servi sumus, ut liberi \ esse possumus. CICERO. V OLUME III. CONTAINING THE OASES FEOM JANUARY TERM, 1802, TO JANUARY TERM, 1803, INCLUSIVE ; WITH AN APPENDIX. N. Y. REP., BOOK 1. 38 NAMES JUDGES OF THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK DURING THE TIME OF THE THIRD VOLUME OF THESE REPORTS. MORGAN LEWIS, Esq., Chief Justice. JAMES KENT, Esq. JACOB RADCLIFF, Esq. BROCKHOLST LIVINGSTON, Esq. SMITH THOMPSON, Esq. JOSIAH OGDEN HOFFMAN, Esq., Attorney- General, resigned January 29, 1802. AMBROSE SPENCER, Esq., appointed February 3, 1802. CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OP THE STATE OF NEW YORK JA.NTJARY TERM, 18O2.* BKOCKHOLST LIVINGSTON, Esq., Counselor at laio, was appointed one of the judges of the court, in the last vacation, and took his seat on the 19th January. SMITH THOMPSON, Esq., Counselor at law, was also appointed one of the judges of this court, and took his seat on the 28th January. 1*] *THE NEW YORK INSURANCE COMPANY 0. THOMAS. 1. Marine Insurance Other Insurance Agree- ment to Return Premium Evidence of Un- derstanding and Intention. 2. Contracts Contradictions Controlling Language Am- biguitas Latens Parol Evidence. A policy of insurance was effected on goods from Philadelphia to Hamburg, dated the 29th May, 1798, at seventeen and one half per cent., " to return fifteen per cent, in case an insurance has been ef- fected in Europe." It also contained the following printed clause : " Provided that if the assured shall nave made any other assurance upon the premises prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior assurance may be deficient, &c., and shall return the premium on so much of the sum assured as they shall, by such prior assurance, be exoner- ated from. And in case of any insurance upon the premises, subsequent in date to this policy, the in- surer shall be answerable for the full sum sub- scribed, &c., and be entitled to retain the premium, in the same manner as if no such subsequent insur- ance had been made." . Insurance was also effected on the same goods at Hamburg, the 19th June, 1798. It was held, that according to the true construction of the written and printed clauses, the insured could not claim a return of premium on account of the insurance at Hamburg; and that parol evidence to show that it was the understanding and intention of the par- ties that the policy was to be void in case of a double insurance, was inadmissible. Citation Skin., 54. THIS was an action on a promissory note for $2,801.25, dated the 29th May, 1798, payable *in nine months, given to the plaint- [*2 iffs, for the premium on a policy of insurance on goods of Messrs. Notnagel, Montmollin & Co., of Philadelphia, laden on board the Dan- ish brig Peter, bound to Hamburg, at the *The Reporter regrets that the written opinions delivered by Mr. Chief Justice Lewis, and Mr. Justice Livingston, during the period of this volume, have been lost or destroyed, so that he can only express their concurrence with, or dissent from, the opinions of the other judges. Neither Mr. Justice Liv- ingston nor Mr. Justice Thompson took any part in the decision of the causes in this term, here reported, as they were argued before they took their seats on the bench. NOTE. Insurance Construction of policy. The general rules for construction of contracts ap- ply to that of insurance. The entire policy will be given effect if possible, according to the intention of the parties, and in case of doubt, greater effect will be allowed to written than to printed parts. Gilligan v. Com'l Ins. Co., 20 Hun., 93; 8. C., aff'd by Court of Appeals, 24 Alb. L. J., 480 ; Aurora Ins. Co. v. Eddy, 49 Ills., 106 ; Astor v. Union Ins. Co., 7 Conn., 202 ; Goss v. Citizens Ins. Co., 18 La. Ann.. 97 ; Mobile Ins. Co. v. McMillan, 27 Ala., 77 ; Na'tl. Ins. Co. v. Crane, 16 Md., 260 ; Moore v. Perpetual Ins. Co., 16 Mo., 98 ; Pbcenix Ins. Co. v. Taylor, 5 Min., 492 ; Hoffman v. ^Etna Ins. Co., 32 N. Y., 405 ; White v. Hudson River Ins. Co.. 15 How. Pr., 288 ; Cobb v. Ins. Co. N. A., 17 Kas., 492 ; Bradley v. Nashville Ins. Co., 3 La. Ann., 708; Barber v. F. M. Ins. Co., 16 W. Va., 658 ; Western Ins. Co. v. Cropper, 32 Pa. St., a51 ; Merrick v. Germania Ins. Co., 54, Id., 277 ; Bargett v. Orient Ins. Co., 3 Bos. (N. Y.), 385 ; Let- iner v. Granite Ins. Co., 5 Duer., 394 ; Ripley v. ;Etna Ins. Co., 30 N. Y., 135 ; Savage v. Howard Ins. Co., 52 N. Y., 504; Foot v. ^Etna Ins. Co., 61 N. Y., 571; Woodruff v. Imperial Fire Ins. Co., JOHNSON'S CASES, 3. 83 N. Y., 133; Crane v. City Ins. Co.. 3 Fed. Rep. 558. Construed against company when ambiguous or equivocal. Foot v. ^Etna Ins. Co., 61 N. Y., 571; Harrman v. Merchants' Ins. Co., 81 N. Y., 184 ; Rey- nolds v. Commerce Fire Ins. Co., 47 N. Y., 597 ; Morse v. Buffalo Fire Ins. Co., 30 Wis., 534 ; West- cheater Ins. Co. v. Earl, 33 Mich., 143 ; Aurora Ins. Co. v. Kranich., 36 Mich., 289. External evidence not admissible. The intention of the parties must be gathered from the contract. Home Ins. Co. v. Updegraff, 40 Pa. St., 311 ; Hough v. Peoples' Ins. Co., 36 Ind., 398 ; Pinder v. Resolute Ins. Co., 47 N. Y., 114 ; Lee v. Howard Ins. Co.. 3 Gray, 583 ; Savage v. Howard Ins. Co., 52 N. Y. 504 ; Mills v. Farmers' Ins. Co., 37 Iowa, 400 ; McCluskey v. Providence Ins. Co., 126 Mass., 306. Exceptions. When insured is misled by the agent of the company, or when the agent misde- scribes the property. Ga. Home Ins. Co. v. Ken- nier, 6 Ins. L. J., 497 ; Manhattan Ins. Co. v. Weill and Ullinan, 6 Ins. L. J., 521. See note to Bakewell v. United Ins. Co., 1 Johns. Cas., 246. 597 SUPREME COURT, STATE OP NEW YORK. 1802 rate of seventeen and one half per cent. The defendant admitted the note, but claimed a set-off of $2,436.75 for a return of premium. The policy contained these written words : " To return fifteen per cent, in case an insur- ance has been [here was an erasure] effected in Europe." It also contained the following printed stipulation: "Provided that if the assured shall have made any other assurance upon the premises pior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior assur- ance may be deficient, &c., and shall return the premium on so much of the sum assured as they should, by such prior assurance, be exonerated from. And in case of any insur- ance on the premises, subsequent in date to this policy, the insurers shall be answerable for the full sum subscribed, without right to claim contribution from such subsequent in- surers, and shall be entitled to retain the pre- mium in the same manner as if no such sub- sequent assurance had been made." The de- fendant proved that two letters written by Notnagel & Co. to the defendant were laid before the plaintiffs. The first was dated 21st May, 1798, in which they say : " We intend to send a consignment, &c., to Hamburg, at which place we have ordered insurance. We wish to insure here also, under condition of annulling the same in case of double insur- ance." The second letter, dated the 28th May, 1798, says: "Please to order insur- ance, &c. The above insurance to be made on a premium of seventeen and one half per cent., with condition to return fifteen per cent, in case the same should have been pre- viously effected conformably to orders given by sundry opportunities." The defendant further proved that the insurance was effected by virtue of these two letters, and that the word "previously" was, at first, inserted 3*] where the erasure has been *noted, and on the defendants objecting, it was struck out ; and that it was the intention of the parties that the insurance should be void in case of double insurance. On the 1st of May, 1798, Notnagel & Co. directed, by four differ- ent vessels, insurance to be made at Ham- burg. Insurance was effected at Hamburg; but not till the 19th June, 1798. The plaint- iffs underwrote the policy on the 29th May, 1798. The cause was argued at the last term, and two questions were raised for the considera- tion of the court : 1. Whether, by the true construction of the policy, the written clause must not be under- stood to refer as well to a subsequent as to a prior insurance at Hamburg. 2. If not, then whether there be sufficient legal testimony, collateral to the policy, which, in judgment of law, gives the contract that extention. Mr. B. Livingston for the plaintiffs. Mr. Hamilton, contra. Curia ad. vult. KENT, J., now delivered the opinion of the court : 1. By the true construction of the policy, any other insurance subsequent to the one in question was not to affect it. The language of the contract is plain and decisive. An in- surance prior in date was to exonerate the plaintiffs, and entitle the defendant to a return of premium. An insurance subsequent in date was to have no effect at all on the present policy. This is the amount of the printed stipulation, and whether a policy be printed or written, the construction upon it must be the same, as in both cases the contract is of equal validity. If there be any apparent contradiction in a contract, it is the business of the courts to en- deavor to reconcile the whole instrument; and the language, which is clear and explicit, must always control that which is obscure *or [*4 equivocal. But I do not perceive aay contra- diction between the written and the printed stipulation. By the former the plaintiffs were to return fifteen per cent, in case an insurance had been effected in Europe. The expression "had been effected" is perfectly consistent with the other expression, "provided any other insurance prior in date has been made," &c., and if there were any uncertainty in the one expression, it is wholly done away by the peremptory and decisive provisions in the printed stipulation. If the written clause be, therefore, taken in connection with the subse- quent printed clauses, as it ought to be, since they are but connected parts of the same con- tract, it cannot be understood to refer to a subsequent insurance. There is, at most, but a redundancy in the expressions. 2. The next point is, whether the parol proof be admissible to explain the contract, and if it be, what is the effect, in the present case, of such proof. I know no rule better established, than that parol evidence shall not be admitted to disan- nul or substantially vary or extend a written agreement. The admission of such testimony would be mischievous and inconvenient. Parol evidence is to be received in the case of an ambiguitas latent to ascertain the identity of a person or thing, but before the parol evi- dence is to be received in such case, the latent ambiguity must be made out and shown to the court. In the present instance, there is no ambigu- ity. The language of the contract, through- out, is consistent and explicit. This general rule of law has been particularly and emphat- ically applied to policies. (Skin., 54.) And except in the special instance of explanations resulting from the usage of trade, they have never been allowed to be contradicted by parol agreements. Without, therefore, giving any opinion, what would be the effect of the parol proof, if admissible, we think *it was inadmissible. [*5 So, on both points raised, the court are of opinion with the plaintiffs, and that the ver- dict ought to stand. Judgment for the plaintiffs. 1 Cited ln-5 Wend., 547 ; 15 Id., 562 ; 1 Mason, 146. 1. See Park, 6th edit., 1, 4, 546; Marsh., 2d edit., 345,706. JOHNSON'S CASES, 3. 1802 CRUGER v. ARMSTRONG AND BARNWALL. CRUGER V. ARMSTRONG AND BARN WALL. Bank Checks Action on Evidence. 2. Id. Holder prima facie Owner Presentment Time. 3. Id. Id. Time No presentment and Demand. Bank checks are considered as inland bills of ex- change, and may be declared on as such, or they may be given in evidence under the money counts. The holder of such a check or bill, is prima facie, the rightful owner, and is not bound to prove a con- sideration, unless circumstances of suspicion ap- pear. The holder of a check is bound to use due dili- g-ence in obtaining 1 the money of the bank, and must present it and demand payment within a rea- sonable time. Where a check was dated the 12th April, 1796, which was never presented to the bank for pay- ment, but a suit was brought about four years after, against the drawer, it was held that the plaint- iff was not entitled to recover. Citations-1 Salk., 383; Str., 735; Burr., 1516; 6 Term R., 123; Chitty. 190, 191, 197 ; Chitty, 51; Chit- ty, 16 ; 7 Term R., 424 ; Chitty, 16, 17, 109 et passim ; Bl. Rep., 485 ; 1 Ld. Raym., 743 ; 7 Id., 144 ; 1 Salk., 132. was an action of assumpsit. The dec- J- laration contained three counts: 1. For money had and received to the use of the plaintiff. 2. For money paid, &c. 3. On an insimul computassent. Plea, non assumpsit. The cause was tried at the circuit in New York the 23d December, 1800, before Mr. Justice Lewis. The counsel for the plaintiff produced and proved a check drawn by the defendants, in the handwriting of Armstrong, as follows: "Cashier of the bank of New York, pay to W. & J. C., or bearer, twenty- five hundred dollars. New York, the 12th April, 1796. (Signed) Armstrong and Barn- wall." The counsel for the defendants objected to the check, as evidence under the counts in the declaration ; that it was an inland bill, and ought to have been declared on as such, and insisted that, at all events, the plaintiff ought to be called upon to prove that payment of the check had been demanded at the bank. It was proved that on the day of the date of this check, checks of the defendants on the same bank, to the amount of $3,500, had been paid, and that, on the close of the bank busi- ness on that day, there remained $400 to the credit of the defendants; that the defendants were merchants of credit, and were in the daily practice of paying money into, and drawing it out of the bank, until the dissolu- tion of . their partnership, on the 2d July, <>*] 1798. It was also *proved that the defend- ants never had any consideration for the check, which was lent to Pfister & Macomb, for their accommodation, and had been passed by them, through a broker, to the plaintiff. The jury, under the direction of the judge, found a verdict for the plaintiff. A motion was made, at the last term, to set aside the verdict and for a new trial, which was argued by Mr. Hamilton for the defendants, and Mr. B. Livingston for the plaintiff. NOTE. Presentment of check for payment, effect of delay. See Conroy v. Warren, post, 359. JOHNSON'S CASES, 3. RADCLIFF, J. Three objections are made on the part of the defendants: 1. That the check could not be given in evidence under any of the counts in the dec- laration. 2. That it was incumbent on the plaintiff to show that he came lawfully into the posses- sion of it. 3. That the plaintiff ought to have present- ed the check and demanded payment at the bank. With respect to the first objection, consider- ing the check either as a bill of exchange or a draft of any other description, the plaintiff would be equally entitled to give it in evidence under the money counts. It appears to be settled in practice (1 Salk., 283; Str., 725; Burr.. 1516; 6 Term Rep., 123; Chitty, 190, 191, 197), that the payee of a promissory note or bill of exchange may, as against the maker or drawer, declare for money lent, and give the note or bill in evidence. In the present instance the bill or check was payable to bearer, and the plaintiff, whether the first or a subsequent bearer, stands in the same re- lation as the payee of any other bill. The second objection is also untenable. Whatever may formerly have been suppose to be the rule on this subject, I think the ne- cessity of showing that the possessor is law- fully entitled to the bill has been properlv *dispensed with. The holder must, prima [*t facie, be deemed to be the rightful owner (Chitty, 51 ; Burr., 1516), and it has, accord- ingly, been held that he need not prove a con- sideration, except where circumstances of sus- picion appear. The third objection appears to be more im- portant. A check, although generally received as cash, when given in payment, is, in form and in reality, a bill of exchange. It possesses all the requisites of a bill, and has been treat- ed as such. It has been held to be negotiable and may be declared upon as a bill of exchange. (Chitty, 16 ; 7 Term Rep., 423.) It is therefore necessary to be presented for payment, and is generally subject to the same rules. The draft itself implies that payment is to be de- manded of the drawees. The person who takes it receives it on that condition. It is not a direct promise to pay by the drawer, as by the maker of a promissory note ; but the drawer undertakes that the drawee shall ac- cept and pay, and is answerable only in case of his failure. It is accordingly consid- ered not as due from him, until such demand be made, and the drawee refuses payment. The cases on this subject, it is true, relate to checks drawn on private bankers ; but I see no difference, in principle, between the case of an individual banker and an associated cor- poration of bankers. The general reasons are the same, although the probability of a loss by the failure of the latter is more remote. On the evidence, there may be a doubt whether the defendants had sufficient funds in the bank on that day for the payment of the draft. The want of funds may excuse the want of notice of the nonpayment, but it cannot be a reason to dispense with the pre- sentment or demand of payment. The draw- ees, without funds, might have paid it for the honor of the drawers. A demand is still nec- 599 SUPREME COUKT, STATE OF NEW YORK. 1802 essary, and it is after the dishonor of the draft only that the holder can require payment from the drawer. It is unnecessary, in the present 8*] case, to decide within what *time such demand ought to be made, or what would be the effect of presenting the draft for payment, even at this day. If such had been the case, other circumstances might come into view, and present a question which it is not material now to examine. On the whole, I am of opinion that a new trial ought to be granted. KENT, J. Checks are, substantially, the same as inland bills, and are negotiable like inland bills payable to bearer. (Chitty, 16, 17, 109, et passim.) Lord Kenyon, in a late case (Boem et al. v. Sterling et al., 7 Term Rep., 423), said he was satisfied there was no dis- tinction between checks and bills ; and in that case the check was declared upon as a bill of exchange, and so it was, also, in the case of Grant v. Vaughan (3 Burr., 1516 ; 1 Bl. Rep., 485), in which it is called a cash note or bill. A check has all the requisites of a bill of ex- change. Coming within the general rule of bills, the holder of the check in question was bound to prove a demand, or due diligence to get the money of the bank on whom the check was drawn. The bank was first to be resorted to, and the drawers of the check were only to come in aid of the default of the bank. In the cases of Grant v. Vaughan, and Boem et al. v. Sterling et al. , to which I have already alluded, the holders of the checks first de- manded payment of the bankers on whom they were drawn, and then they resorted to the drawer. It seems to be admitted, on all hands, that a banker's check must be present- ed for payment in a reasonable time ; other- wise the holder takes upon himself the risk of the banker's responsibility ; and, then, says one of the cases (1 Ld. Raym., 743), if a bank- er will not pay it, it will charge him who gave the note. This universal admission seems to me pretty decisive, to show that it is the duty of the holder to present it for acceptance. Goldsmiths' or bankers' notes to which 9*] checks have *been likened, are seldom now used, but have been superseded by the introduction of checks, which, on account of their being payable on demand, are considered as cash, and, like bankers' checks, are trans- ferable by delivery, and are governed by the same laws and rules as bills of exchange. So long ago as the time of Lord Holt (7 Ld. Raym., 144; 1 Salk., 132,8. C.) ( goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be de- manded in a reasonable time, and not paid, it will charge him who gave the bill. A check is not due until demanded, and, even independent of authority, I consider this to be the import and nature of the agreement. The drawer undertakes specially that the money shall be paid by the person on whom the check is drawn, and the money is sup- posed to be appropriated for that purpose in the drawee's hands. It would be unreasonable, and contrary to the agreement, for the holder, instead of re- sorting to the fund in the hands of the drawee, to make his demand promptly, and, in the first 000 instance, of the drawer himself. The drawer may not have the means of payment, except from the fund pointed out, and that fund may be at a distance, and in the mean time his credit will suffer by drawing a check which he cannot instantly pay. He must not be un- derstood as promising to pay, except upon the default of the drawee, and, as Ch. J. Holt ob- served, in the case of Tassett and Lee v. Lewis (1 Ld. Raym., 743), if the payee does not like the check, or that mode of payment, he ought to refuse it; but having accepted it, it is at his peril. In the present case there is no such demand proved, nor is there anything so peculiar in this case as to take it out of the general rule. It cannot be considered as a check fraudulent- ly drawn without effects in the hands of the banker. The presumption is that the check would have been paid if diligently presented. At least, there *is not evidence sufficient [* 1O to justify a resort to the drawer, without hav- ing made the experiment. On the ground, therefore, of a want of proof of a demand akthe bank, I am of opinion the evidence did not warrant the verdict, and that it ought to be set aside, with costs to abide the event, it having arose from the misdirection of the judge. LEWIS, Ch. J., dissented. New trial granted. Criticised in 14 Wend., 590. Cited in 3 Johns. Cos., 264 ; 12 Johns., 95 ; 6 Cow., 491 ; 6 Wend., 445, 643 ; 7 Wend., 175 ; 13 Wend., 553 ; 21 Wend., 373, 505; 2 Hill, 427 ; 6 N. Y., 418 ; 8 Id., 348 ; 11 Hun., 485 ; 11 How., 472 ; 1 Abb., 149 ; 16 Abb., 147 : 4Duer, 334; 1 Hall, 80; 2 Hall, 463; 1 Saund., 67; 1 Sheld., 396; 3 E. D. Smith, 549; 2 McLean, 237; 2 Story, 513, 516, 517. PATRICK v. LUDLOW. 1. Marine Insurance "At and From" defined. 2. Deviation Protection of Convoy Storm Separation Continuance Without Convoy Capture. The words "at and from," in a policy on goods, means from the time the goods are laden on board the vessel. Insurance from Surinam to New York. The mas- ter of the vessel being informed that French priva- teers were cruising in the windward passage, and in the usual route from Surinam, determined to take the leeward passage, and touched at Demerara to take the protection of a British convoy then about to sail, but a few hours after anchoring there, was driven to sea in a gale of wind, and afterwards con- tinued her voyage, without convoy, and .was capt- ured by a French privateer. This was held not to be a deviation, the master having acted bona fide, and with the sole view to avoid danger, and to seek the safest course to New York. Citations Park, 409, or 410 (6th edition). T^HIS was an action on a policy of insurance 1 on goods on board the schooner Sally, at NOTE. Mart ne Insurance Deviation Deflnit ion of. A deviation is a voluntary departure, without ne- cessity or reasonable cause, from the regular and usual course of the voyage insured, or an unneces- sary or unreasonable delay before or after the com- mencement of the voyage insured. Coffin v. New- buryport Marine Ins. Co., 9 Mass., 436. General rule. A deviation avoids the policy. JOHNSON'S CASES. 3. 1802 PATKICK v. LUDLOW. 10 and from Surinam to Fredericksburgh in Vir- ginia, beginning the adventure from the lad- ing of the goods on board at Surinam. The policy was dated the 27th September, 1799. The cause was tried at the New York sittings, in June, 1801, before Mr. Justice Lewis. On the 26th August, 1799, the schooner sailed from Surinam on the voyage insured. About five days before she sailed, the master was in- formed by a Danish captain, that on his passage from St. Thomas's, he had met with French privateers, and the master accordingly, thought it unsafe to go to windward, as that would lead him in the track of the privateers, and hearing that there was an English convoy about sailing from Demerara, he thought it ad- visable to get under its protection, and so de- termined to touch at Demerara. On the 29th August the Sally arrived at Demerara, and anchored off the port. About four hours 1 1*] after she parted *her best bower cable, in a violent squall of wind, and was forced to sea without waiting for the convoy. On the 3d September, she was captured by a French privateer, and carried into Guadaloupe, where the vessel and cargo were condemned. The route the Sally took from Surinam homeward, and which the convoy would also have pur- sued, to wit, the leeward passage, and through the Sail Rock passage, was a route very fre- quently taken by American masters, on their return from Surinam to the United States ; and in particular situations of wind and cur- rents it is necessarily taken. The schooner left Fredericksburgh in April, 1799, and ar- rived at Surinam in June. The master, find- ing the markets low at Surinam, went, by di- rection of the supercargo, to Demerara, where the supercargo died, having sold the greater part of the cargo. The master received pay- ment for the cargo in specie, and returned to Surinam to obtain a homeward cargo. The passage from Surinam to Demerara and back occupied about six weeks. The schooner con- tinued at Surinam until the 29th August, when she sailed on her homeward voyage, as above mentiohed. About two days before the schoon- er left Demerara, there was a British sloop of war cruising off the coast, and sailed from thence with the few vessels there, to join a convoy at Martinique, for England. The mas- ter of the Sally did not know whether there was any armed vessel at Demerara when he ar- rived there the second time, to serve as con- voy. He intended to wait to be informed by boats without going up the river. There was no public notice at Surinam of any convoy being at Demerara when the Sally left Surin- am. The only information the master had was from the captain of a British schooner from Martinique. There was a British fleet at Surinam when the Sally left it, but no British merchantmen, except such as came with troops. To this evidence, on the part of the plaintiff, there was a demurrer ; and the question was, whether, in judgment *of law, it was [*12 sufficient to entitle the plaintiff to recover. The cause was argued at the last term, by Mr. B. Livingston for the plaintiff, and Messrs. Pendleton and Harison for the de- fendant. RADCLIFF, J. Two points are insisted on by the defendant: 1. That the policy commencing at and from Surinam reaches back to the first arrival of the schooner there, and attached before the intermediate voyage, which was manifestly a deviation, and that, therefore, the policy was discharged. 2. Admitting that the policy did not attach till the last departure of the schooner from Surinam, the voyage to the leeward, and par- ticularly, the touching and stay at the port of Demerara, were also deviations, and discharged the policy. 1. The first objection would only apply to a policy on the ship. A policy on goods, for any voyage, from the nature of the subject, cannot attach till they leave the shore to be laden on board. The risk on goods, ac- cording to the form of our policies, usually commences from the loading on board. In this instance the language of the policy, in one respect, is double. The insurance is expressed to be at and from Surinam, and yet, as in other policies, describes the adventure to begin from and immediately following the loading thereof on board. It, however, manifestly cannot apply to the period during which the intermediate voyage, with the outward-bound cargo to Demerara, was performed. That voy- age cannot therefore constitute a deviation. 2. It remains to be considered whether the route to the leeward, or the touching and stay at the port of Demerara, '*will amount [*13 to a deviation. In determining on a demur- rer to evidence, it was rightly admitted that the evidence, and its legal results, mu'st be re- ceived as true. From the testimony in this case there is nothing to impeach the motives of the captain. He appears to have acted bona fide, and for the security of all concerned. It is well known that those seas were infested with privateers at the time. The captain was informed by the master of a Danish vessel im- Martin v. Delaware Ins. Co., 2 W. C. C., 254 ; Glidden v. Manufacturers' Ins. Co., 1 Sum., 232 ; Buckley v. Protection Ins. Co., 2 Paine, 82 ; Hood v. Nesbitt, 1 Yeates (Pa.), 114 ; S. C.. 1 Ball., 137 ; Murray v. Co- lumbian Ins. Co., 4 Johns., 443 ; see, also, all cases cited in this note. Detention to save life is not a deviation. Other- wise, to save property. The Boston, 1 Sum., 328 ; The Henry Ewbank, 1 Sum., 401 ; Bond v. The Cortfc- 2 Wash. C. C., 80 ; Crocker v. Jackson, 1 Sprague, Mere intent. Intent to deviate, however deliber- ately formed, is not of itself a deviation, the under- writers being 1 discharged only from the time of the actual deviation. Coffin v. Newburyport Marine Ins. Co., 9 Mass., 436; Marine Ins. Co. v. Tucker, 3 JOHNSON'S CASES, 3. Cranch, 357; Fitzimmons v. Newport Ins. Co., 4 Cranch, 185; Lee v. Gray, 7 Mass., 349; Lawrence v. Ocean Ins. Co., 11 Johns., 241 ; Winter v. Delaware, 30 Pa. St., 334 ; McFee v. A. C. Ins. Co., 2 McCord (S. C.), 503; Hobart v. Norton, 8 Pick., 241. See, also, Gilfert v. Hallett, ante, 2 Johns. Cas., 296, and note. Delay, if unnecessary, is a deviation. Oliver v. Md. Ins. Co., 7 Cranch, 487 ; Md. Ins. Co. v. Le Roy 7 Cranch, 26; U. S. v. The Paul Sherman, Pet. C. C., 98 ; Whitney v. Haven, 13 Mass., 172 ; Colum- bian Ins. Co. v. Catlett, 12 Wheat., 384 ; Seaman v. Loring, 1 Mass., 137 ; Augusta, etc., Ins. Co. v. Ab- bott, 12 Md., 348. See Earl v. Shaw, ante, 1 Johns. Cas., 314, and note. 601 13 SUPREME COURT, STATE OF NEW YORK. 1802 mediately from St. Thomas that he had been twice boarded by French privateers in the windward passage, and saw them in possession of two American vessels. This information induced the master to take the leeward pass- age, which, it is proved, is very frequently taken by American vessels, and, at certain times, is necessarily taken. The resolution to take this passage, if not at all times proper, was, I think, under those circumstances, justi- fiable, to avoid danger, and ought not to be deemed a deviation. As to the touching and stay at Demerara, for the purpose of convoy, I think it also justifiable upon the evidence, if the captain had that object and no other in view. It is no deviation to depart from the usual course of a voyage, to meet with convoy, in case of real danger, or to seek the safest way home. If this position wanted authority, it is supported by Lord Mansfield, in the case of Enderby v. Fletcher (Park., 309, or 410, 6th ed.).. The in- quiry in such cases, therefore, ought to be, whether the captain acted bona fide and on reasonable grounds. In this instance, he did not know of there being a convoy at Deme- rara, but he was so informed by the captain of a British schooner from Martinique, who came down with the British fleet which took Sur- inam, and a brig had actually gone to Deme- rara .for convoy. It further appears that the expected convoy was to pursue the route in- tended by the captain. On this evidence, and considering the relative situation of Demerara, I think there was reasonable cause to stop there to look for convoy, and sufficient ground 14*] for the jury to believe *that in doing this, the captain acted with good faith and ex Justa cawa. If the jury would be authorized to make this conclusion, we must consider it as admitted by the demurrer, and, of course, there ought to be judgment for the plaintiff. KENT, J. The loss, in this case, was con- sidered as sufficiently established by the capt- ure. The only question is, whether the de- fendant was not discharged by reason of a de- viation, arising, first, from going to Demerara l>y direction of the supercargo to sell the out- ward cargo ; and, second, from going there, on the return voyage, to seek for convoy. 1. Ttie first charge of deviation is of no avail, because the policy had not then attached. The policy was on the homeward cargo, be- ginning from the lading of the goods on board at Surinam. As soon as the goods were on board, the policy attached, as well while the vessel was " at," as on her return " from," Surinam. But we cannot intend from the proofs, that the homeward cargo was laden on board until the return of the vessel from her first visit to Demerara, for she went there to sell her cargo, and the greater part was sold there, and the proceeds thereof received in cash, when she returned to Surinam to ob- tain a homeward cargo. The true rule on this subject is, that "at" and " from," when applied to a ship, includes the period of her stay in the port from the time of her arrival there. But " at " and " from," when applied to goods, means from the time those goods are put on board the vessel. 02 2. With respect to the other charge of devia- tion, the question is, was the going to Deme- rara to seek for convoy a departure, without necessity or any reasonable cause, from the regular and usual course of the voyage in- sured ? It is in proof that the master had reason to fear he should meet with French priva- teers, if he pursued the windward passage home, and that the leeward passage, *which he took, was very frequently [*I5 adopted by American vessels, on their return from Surinam, and in particular situations of wind and currents was necessarily taken. So far, I think, the jury might well have in- ferred that taking the leeward passage was no deviation. The touching at Demerara, which must be considered a small deviation from the regular course, was for the purpose of seeking the protection of an English con- voy, as the master had heard from the captain of a British schooner from Martinique, that such convoy was about sailing from Deme- rara. A deviation, if done to avoid an enemy, or to seek for a convoy, is justifiable. It is no deviation to go out of the way to avoid danger. It is in every such case a mat- ter of fact whether, the captain acted fairly and bona fide, according to the best of his judgment, and had no other motive or view but to come the safest way home, or to seek for convoy. I think the testimony offered led to this conclusion, and that the jury might well have made it from the testimony ; and on a demurrer to evidence, every such conclusion is to be admitted. I am of opinion, therefore, that judgment ought to be given for the plaintiff, for the damages assessed. LEWIS, Ch. J., was of the same opinion. Judgment for the, plaintiff. 1 Cited in 4 Denio, 362 ; 8 N. Y., 74 ; Olcott, 371 ; 1 Mason, 140. *COIT AND WOOLSEY SMITH. [*16 Marine Insurance On Horses " All Risks, In- cluding Death " Loss after Landing Condi- tion of Cargo wJien Landed. Insurance on horses from Liverpool to New York, " against all risks, including the risk of death, from any cause whatever, until they shall be safely land- ed." About three days before the arrival of the vessel at New York, she met with a violent gale of wind and heavy sea, which caused her to roll very much, by which means one of the horses was thrown down and bruised, in consequence of which he re- fused to eat, and died in three days after he was landed at New York. It was held that the horse received his death- wound by the perils of the sea, and that the plaint- iff was entitled to recover the full value of the horse. Citation 1 Term R., 252. pHIS was an action on a policy of insurance -L on horses, on board the ship Perseverance, 1. See Reave v. Commercial Insurance Company, 8 Johns. Rep., 252 ; 2 Emerigron, 58. 59, 60 ; Roccus, de Assec., 52, 93 ; Pothier des Assur., n. 61 ; Mar- shall, bk. 1, ch. 6, sec. 3, p. 211. JOHNSON'S CASES, 3. 1802 STEADFAST, EX DEM. W. NICOLL, ET. AL. v. H. NICOLL. 16 from Liverpool to New York, "against all risks, including the risk of death from any cause whatever ; until the goods shall be safely landed," &c. The value of the horses shipped on the voy- age was proved to be two thousand five hun- dred and forty-eight dollars. Three days be- fore the arrival of the vessel at New York it came on to blow a violent gale, the ship roll- ing very much and the sea running very high. During the gale, one of the horses was thrown off his legs, and was, with great difficulty, got up. Before the gale, the horse was in good condition, and more healthy than any other iorse on board the ship ; but by the fall, he was much injured, and refused to eat, and con- tinued to refuse to eat after he was landed, and died in three or four days after he was landed in New York. After his death, a farrier opened him, and found that his death was occasioned by violent bruises in his breast ; and the farrier, who saw the horse before he was landed, was of opinion that it was impossible for him to have recovered, from the state in which he then appeared to be. The declaration stated, that by the dangers and violence of the seas, &c. , the horse was so wounded, bruised, &c., that he then and there became of no value to the plaintiffs, and that although he was afterwards landed, yet ~by reason of the wounds, &c., aforesaid, he continued sick, lame, and languishing, until afterwards, &c., he died. A verdict was found for the plaintiffs, sub- ject to the opinion of the court on the above case, which was argued at the last term. 17*] *Mr. Hopkins for the plaintiffs. Mr. C. J. Bogert, contra. RADCLIFP, J. The question is, whether the defendant is liable for the damage sustained by the injury suffered by means of this accident? The injury is clearly within the risks expressed in the policy, and happened during the voyage insured. If the horse had been thus partially injured and continued to live, there could have been no doubt but the defendant would have been liable for the proportionate diminu- tion of its value. His subsequent death can- not alter the case. It is not, as has been sup- posed, the gravamen alleged, but merely evi- dence of the extent of the injury ; his death- wound being received during the voyage. The cause of action existed before, and the allegation of his death might have been wholly omitted In the plaintiff's declaration. As has been observed by the counsel for the plaintiffs, it is the common case of damaged goods, and the amount of the damages ascertained by sub- sequent evidence attending the subject. The horse appearing to be wholly lost, I think the plaintiffs are entitled to recover his value. KENT, J. I fully agree in the doctrine laid down in the .case of Lockyer et al. v. Offley (1 Term Rep., 252), that the insurer is not liable for losses happening after the term prescribed in the policy, although the subsequent loss be a consequence of a peril in the policy. What was the condition of the cargo when it was JOHNSON'S CASES, 3. landed, is the only question. In this case, one of the horses received a death-wound during the voyage, and by reason of the perils speci- fied in the policy. Surely the damages so received, as they existed at the termination of the voyage, are a proper subject of retribu- tion. The subsequent death of the horse is to be put wholly out of view. How much was he injured by the bruises, and how much dam- age *ought to have been assessed, at the [*18 time he was landed, are the proper subjects of inquiry. The subsequent death of the horse ought not to put the plaintiffs in a worse situ- ation than if he had survived the bruises. It ought not to go to the destruction of the plaintiffs' right of action. If the plaintiffs would have had a right of action for an injury to the horse, by which his value was lessened, had the horse survived, they, surely, must have that right of action, notwithstanding the sub- sequent increase of loss. We must say that the present policy was merely upon the exist- ence of the lives of the horses for the voyage, or the plaintiffs must recover an average loss. There is no alternative. I am of opinion they are entitled to recover, and to the full amount of the horse, for he was so disabled by the fall as that he could not eat before he landed, and died three or four days after. It was a total loss of the horse. LEWIS, C h. J., was of the same opinion. Judgment for the plaintiffs. Cited in 3 Keyes, 396 ; 1 Abb. App. Dec., 565 ; 19 How., 315; S. C., 5 Bosw., 378; 2 Trans. App., 131. STEADFAST, ex dem. W. NICOLL, ET AL. H. NICOLL. Devise Posthumous Ghildr- Remainders Suc- cessors in tail Contingent Remainders. N. in August, 1778, devised land to his son Will- iam, for life, remainder to W., the son of William, living at the time of the devise, for life, with remainder to the first and every other son of the first son of William successively, in tail male, with remainder to the second son of William (then in esse) with remainder to his first and every other son, suc- cessively, in tail male; with remainder to every other unborn son of William successively, in tail male ; remainder to the first and every other unborn daughter of William successively, in tail male; remainder to the testator's second son Samuel for life ; remainder to the first and every other son of Samuel, successively, in tail male ; with remainder to the testator's three daughters, in tail general, a s tenants in common; with remainder to the same three daughters in fee ; and devised to trustees to preserve contingent remainders. The testator died 1st March, 1780, leaving issue two sons, William and Samuel, and three daughters. William, the eldest son, entered under the will, and died seized, in April, 1796, leaving two sons, William and Henry ; and William, the grandson of the testa- tor, entered on the death of his father, under the will, and died seized, in June, 1799, leaving issue a daughter, and his wife privement enciente, who was delivered of a son, also named William, in October, 1799. It was held that the posthumous son took the estate in remainder, by the devise, in the same manner as if he had been born in the lifetime of his father. 603 18 SUPREME COURT. STATE OF NEW YORK. 1802 Citations 1 Co.. 86; 1 Ld. Raym., 203; 1 Eq. Cas. Abr., 184 ; 2 Burr., 1106 ; 1 P. Wins., 54, 601, 605 ; Salk., 236; 2 Vern., 2 Ld. Raym.. 1561; 2 Vern, 737; 3 Salk., 326 ; 1 P. Wms., 59 (note) ; Id., 755. 759, 760 ; 6 Bro. Parl. Cas., 222, 229; Jones, 114; 1 Ves., 146; Cro. Car., 363; Fearne (4th ed.), 97, 100, 101, 105, 109, 140, 141; 1 Salk., 228; Co. Litt., 298, note by Butler; 1 Term R., 634 ; lost. lib. 2, tit. 13, Domat, bk. 2, tit. 1, sec. 1, par. 6; Plowd., 375; 3 Co., 61; Hob., 222; Dyer., 106; STerm H., 59, 60; 2 Hen. Bl., 400; 2 Bl. Com., 174; 1 Black Rep., 190; 3 Ch. Cas., 1; 7 Term R., 102; 2 Vent., 311. 313; Garth., 154; 1 Co., 95 b; 2 Burr.. 1100, 1106; Palm.. 359; T. Raym., 315; 2 P. Wms., 476; 1 Salk., 228, 236; 1 Ld. Raym., 203; 1 Eq. Cas. Abr., 184, pi. 27; Laws, sess. 9, ch. 12, sec. 5; Wat- kins on Desc., 133, 134, 137, 138; 2 Bl. Com., 169; Stat. 10 & 11 Wm. III., ch. 16; Statute Laws, sess. 11, ch., 73, sec. 1; 1 Vesey, 86; 5 Term R., 49; 4 Vesey, Jun., 241, 242, 322, 325, 334. 335. was an action of ejectment. The -L cause was tried at the Suffolk Circuit, in 19*] June, 1800, before Mr. * Justice Benson, when the jury found a special verdict, in which the following facts were contained: William Nicoll, being seized in fee of the premises in question, made his will, on the 19th August, 1778, in which, among other things, he devised the premises in question to his son William for life, without impeachment of waste ; with remainder to trustees, and their heirs, during the life of his son William, to preserve the contingent remainders in his will, limited ; with remainder to the first son of his said son William, for life ; with remainder to the said trustees and their heirs during the life of his said grandson, to preserve the con- tingent remainders thereinafter limited, to wit, with remainder to the first and every other son and sons of the eldest son of his said son William, successively, according to the sen- iority, the elder to be preferred before the younger, to hold the same in tail male ; and in case of the death of the first son of his said son William, without such issue, then the testator gave the said lands, &c., to the second son (the defendant), and the issue male of such second son, in the same manner as above, with like devises to trustees for preserving the con- tingent remainders ; and declaring his inten- tion to be to give an estate for life only to such second son, in tail to his issue male suc- cessively, and so to every other son of his said son William, and the issue of such son suc- cessively upon the like contingencies ; and in default of issue male of his said son William, he devised the said remainder to the first or eldest daughter of his said son William, for life, without impeachment of waste ; with remainder, during the life of such first daughter, to the same trustees and their heirs, in trust, to preserve the contingent remainders thereinafter mentioned ; with remainder to the first and every other' son and sons of his said first or eldest daughter successively, according to their seniority, the eldest always to be pre- ferred to the younger, to hold the same in tail 2O*] male ; and in case of *the death of the first daughter of his said son William, with- out such issue, then he devised the same lands, &c., to the second daughter of his son Will- iam, and the issue male of such second daughter, in the same manner, with like devise to trustees to preserve contingent remainders, expressing his intention to give an estate for life to such second daughter, to her issue in tail male, successively ; and so to every other daughter of his said son William and their 604 male issue upon the like contingencies. In default of issue, male and female, of his son William, and their male issue, the lands were devised to the testator's son Samuel Benjamin, for life, without impeachment of waste ; with remainder to trustees to preserve contingent remainders ; with remainder to his son Samuel and his issue male, in the same manner as before devised to his son William ; and in default of issue male of his son Samuel Ben- jamin, he devised the same to his three daughters, and their issue male, equally to be divided between them, share and share alike ; and in default of their male issue, to their issue female, equally to be divided between them. And the testator added, "that his meaning might be the better understood, and to give a key for the more certain exposition of his will, he declared it to be his general intent to con- tinue the estate at Islip (the premises in ques- tion), first in the male descendants of his son William, then in the male issue of the daughters of his said son William, then in the male issue of his son Samuel, then in the male issue of the testator's three daughters in sev- erally, and upon the failure of such male issue, then to the issue female in severally, and that it should not be in the power of his descend- ants, before his great-grandchildren, to dock the entail." The other provisions and devises in the will, as well as a codicil made the 22d February, 1780, relating to different subjects, it is un- necessary to state them here. The testator died the 1st March, 1780, leav- ing issue *William, his eldest son, [*21 Samuel Benjamin, his younger son, and three daughters, named in the will. On the death of his father, William, the eldest son, entered and was seized under the will, and died so seized, on the 20th April, 1796, leaving issue William his eldest son, and Henry S., his second and younger son, both of whom and the three daughters of the testator, were living at the time of his death. William, the grandson of the testator, after the death of his father, entered and was seized under the will, and died so seized, the 5th June, 1799, leaving issue a daughter, Deborah, and his wife, privement enciente, and who, on the 26th October, 1799, was delivered of a male child, called William, who is now living, and is one of the lessors, being the lawful issue and only son of the last-mentioned William, and great- grandson of the testator. The other lessors, Selah Strong and Richard Udall, were ap- pointed, on the 9th November, 1799, by the Court of Chancery, guardians of his person and estate. The premises in question are part of the testator's lands at Islip. The cause was argued, at the last term, by Messrs. Hamilton and Golden for the plaint- iff, and Mr. Hanson for the defendant. RADCLIFP, J. It is unnecessary to go into a particular examination of the law relative to the operation of devises, like the present to William, the son, and William, the grandson, of the testator. The devises to them were, in express terms, devises of estate for life only, JOHNSON'S CASES, 3. 1802 STEADFAST, EX DEM. W. NICOLL, ET AL. v. H. NICOI,L. 21 and from the general plan of the will, evi- dently appear to have been so intended. The rule is settled (1 Co. , 86 ; Archer's case, 1 Ld. Raym., 203 ; 1 Eq. Cas. Abr., 184 ; Backhouse v. Wetts), and it was conceded on the argu- ment that an express estate for life, thus created, cannot be enlarged by implication, nor by any subsequent general words, unless 22*] it be necessary to effectuate the *intent of the will. This construction, in the present instance, so far from opposing that intent, is necessary to carry it into execution. (2 Burr., 1106; 1 P. Wms., 54, 601, 605; Salk., 236 ; 2 Vern.,S. C.; 2 Ld. Raym., 1561; 2 Vern., 737 ; 3 Salk., 336 ; 1 P. Wms., 59, in note; Ib. 755, 759, 760; 6 Bro. Parl. Cas., 222; Jones, 114; 1 Ves., 146: Cro. Car., 363; 4th ed. Fearne, 97, 100, 101, 105, 109, 140, 141.) It follows that William, the grandson, was seized of an estate for life only, with remainder to his eldest son in tail male, and for want of such issue, remainder to his brother, Henry S. Nicoll, the present defendant. William, the grandson, had no male issue, at the time of his death, but left his wife enceinte, of whom a posthumous son was born, named William Nicoll, one of the lessors of the plaintiff. Here it is objected, that the remainder being contingent, and William, the grandson, hav- ing no male issue, in esse, at the time of his death, it could not vest, eo instanti; that the particular estate determined, and, failing as to his issue, the remainder over to Henry, the defendant, immediately took effect. This de- .pends on the question whether posthumous children, by our law, are capable of taking in remainder, as if they had been born during the lifetime of their parents. By the strict principles of the feudal law, which always required an existing tenant to the prcecipe, it was formerly held that they could not. But although the law was thus deemed to be finally settled, the decision of the K. B. to that effect, in the case of Reeve v. Long (1 Salk. , 228), was reversed by the House of Lords, against the opinion of all the judges. That case arose on a will, and the lords dis- tinguished between a devise and a limitation of such remainder by deed. They resolved that the technical rule should yield to the plain intent of the will, and, for that purpose, construed the limitation in the nature of an executory devise, and allowed the freehold to vest in the person next in remainder, till the 23*] son, *who was intended to take, be born. Soon after this decision, the statute of 10 Wm. III. was passed, which provided, that where an estate, by any marriage or other settlement was limited in remainder, &c., posthumous children should be enabled to take, as if born during the life of their father. This statute did not expressly extend to such limitations by will ; and it is said that the House of Lords, in passing it, were unwilling to make any ex- press mention of limitations by will, lest it should appear to call in question the propriety of their determination. (Co. Litt., 298, note by Butler.) If the statute does not apply to wills, the decision of the House of Lords must be received as having settled the rule in En- gland, for either by virtue of that decision, or of the statute, it appears, thereafter, to have been uniformly adopted ; and in a late case of JOHNSON'S CASES, 3. Roe v. Quaitly (1 Term Rep., 634), to have been received as free from doubt. The author- ities on this subject, however, generally refer to the statute, as prescribing the rule in all cases, independent of the determination of the House of Lords ; and its terms, I think, are susceptible of that construction. The statute of William was also adopted in this State, while a colony, in the year 1774, but was re- pealed, by name, in 1788 ; and in the same ses- sion all the statutes of England were declared to be no longer in forceT The statute of William is, therefore, not a part of our present code, and no legislative provision has since been made, in favor of posthumous children, except in the single case of descents, in which it is declared that they shall inherit, as if born during the life of their parents. That provision being confined to the case of inheritance, cannot apply to the present. The will, in the present case, was made, and the testator died while the Colony Act was in force. He must be supposed to have acted under the influence of the existing law, and, we are to conclude, intended, as far as he con- templated the event of a posthumous child, that law *should govern. The question, [*24 then, remains, how far we can give effect to the intent of his will, or how far the deter- mination of the House of Lords, in the case of Reeve v. Long, shall be respected as settling the law in the case of wills, previous to the statute of William. On principles of natural justice, no reason can be assigned why an infant in venire sa mere should not be entitled to the same rights as a child previously born. The civil law (Just. lib. 2, tit. 13; Domat, bk. 2., tit. 1, sec. 1, par. 6), without discrimination, confers on him every beneficial interest ; and the common law generally regards him with the same in- dulgence. It entitles him to share under the statute of distributions. He might, at com- mon law, take by descent to the exclusion of the next heir ; and, according to Lord Coke, the estate was allowed to vest in such heir until his birth. (Plowd., 375 ; 3 Co., 61 ; Hob., 222 ; Dyer, 106.) In pursuance of the same doctrine, he might be vouched to warranty ; and an action for detainment of charters might be brought for him, as heir. In a modern case, also (5 Term Rep., 59, 60), the marriage of a testator subsequent to his will, and the birth of a posthumous child, was resolved to be a revocation of the will, and such child was allowed to take as heir. Indeed, with the aid of the statute of William, the rule appears in- variably established in the English law, and was so declared by Mr. Justice Butler, in the case of Doe v. Clack (2 Hen. Bl., 400), that whenever it would conduce to his interest, a child in ventre sa mere should be considered as absolutely born. After a train of decisions to this effect, the reason and equity of which equally apply to the present case, I should not be disposed to revive or enforce a technical rule founded on principles which have long ceased to operate, unless I found myself con- strained by authority. The decision of the House of Lords, in the case of Reeve v. Long, has been treated with much severity, and the puted to sensibility rather than a regard to im- existing law. Considering: *it as appli- [*25 605 25 SUPREME COURT, STATE OF NEW YORK. 180-3 cable to devises only, which have always re- ' ceived a more liberal construction than formal conveyances, perhaps it was not liable to all the censure that has been bestowed upon it. , But whatever are its merits, it was the deter- ! mination of the highest tribunal of the Eng- 1 lish law, in the last resort, and was soon there- j after indirectly sanctioned by the legislative i provision on the subject. Independent of the | statute of William, that determination must have been considered as prescribing the rule at common law, and as binding and conclusive on the English courts, and, therefore, equally so on the courts in this country. With this authority directly applicable to the case before us, which is supported by powerful considera- tions of natural justice, and the spirit of anal- ogous cases, I think we are authorized to dis- pense with the ancient rule, and maintain the right of a posthumous child to take, in re- mainder, by devise, although not in esxe at the instant the particular estate determined. / am, therefore, of opinion that the plaintiff ought to recover. KENT, J. The devises to William, the son, and William, the grandson, of the testator, are in express terms for life only. Both these devisees were living when the will was made. The remainder over, then, to the first son of the grandson, in tail male, was good, and within the established rule respecting exec- utory devises, that they are valid for a life or lives in being and 21 years afterwards ; and so far limitations are valid in a common law conveyance. .(2 Bl. Com., 174 ; 1 Black. Rep., 190 ; "bake of Norfolk's case, 3 Ch. Cas., 1 ; 7 Term Rep., 102; Longv. Blackatt.) There can be no doubt, also, but that the posthumous son of the grandson William, if he takes at all, must take as a purchaser. The son and grandson took only estates for life. 26*] *This seemed to be conceded upon the argument. The language and intent of the will are too unequivocal and express to admit of any other construction. (2 Vent., 311, 313 ; Carth., 154; 1 Co., 95, b; 2 Burr., 1100, 1106; Palm.. 359; T. Raym., 315: Archer's case., 1 Co., 86 ; 2 P. Wms., 476; 1 Salk., 228, 236 ; 1 Ld. Raym., 203; 1 Eq. Cas. Abr., 184, pi. 27 ; 1 P. Wms., 54, 605 ; 2 Ld. Raym., 1561 ; 2 Vern., 737 ; Cro. Car., 363 ; 6 Bro. Parl. Cas., 222-229 ; 1 Fearne, passim.) Will- iam, the grandson, was accordingly seized of an estate for life only, with remainder to his eldest son, in tail male, and for want of such issue, remainder to the defendant, &c. Will- iam, the grandson, had no male issue in esse at the time of his death. The estate could not then vest eo instanti in his male issue ; and it was contended, on the part of the defendant, that the remainder over to the defendant, the second grandson, immediately took effect. This will depend upon the true answer to the question into which the whole cause resolves itself, whether a posthumous child can take a remainder, as purchaser, as if born in the life- ! time of its father. Our statute relative to posthumous children 1 only applies to them in the character of heirs. ! They shall, in all cases whatever, inherit, as if born iu the lifetime of their respective fathers, i (Laws, sess. 9, ch. 12, sec. 5.) This was the only : statute provision in force at the time of the death of the father of the posthumous child. In England, the common law rule was under- stood to be, that a remainer to the first son of A, being a contingent remainder, must take effect during the particular estate of A, or eo instanti that it determined ; and that if A had no son in esse at the time of his death, the next remainder over took effect, as if A had died without issue (Watkins on Descents, 133, 134, 137, 138, and the authorities there cited ; 1 Salk., 228 ; 2 Bl. Com., 169) ; and if the per- son who so succeeded to the remainder, took by purchase, he could not be defeated by the *birth of a posthumous son to A. This [*2 7 was undoubtedly understood and received to be the rule of the common law. But, on the other hand, if the remainderman, in such case, had taken by descent, or per formam doni, in- stead of by purchase, then, by the common law, the posthumous son would have devested the estate. This rule, notwithstanding it ap- peared to be so well established, was, however, shaken by the House of Lords, on a writ of error, in the case of Reeve v. Long, in which they reversed the judgment of the K. B. on this very rule, and, as it is said, against the opinion of all the judges. This case gave oc- casion to the statute of 10 & 11 Wm. III., ch. 16, to enable posthumous children to take estates, as if born in the lifetime of their fathers. It recited, "that whereas it often happened that by marriage and other settle- ments, estates were limited in remainder to the use of sons and daughters, the issue of such marriage, with remainders over, &c. , by which means such sons and daughters, if they should be born after the decease of their father, were in danger to be defeated of their remainder," &c., and it enacted, that in case of estates then or thereafter so limited, the posthumous chil- dren should take by virtue of such settlement, in the same manner as if born in the lifetime of their father, &C. 1 This act was enacted by the Colony Legisla- ture in 1774, and repealed' in 1788. (Sess. 11, ch. 73, sec., 1.) It was, probably, supposed, at the time, that the provision in a former act, which I have mentioned, was comprehensive enough to reach every case. We are, therefore, still obliged to recur to the principles of the com- mon law, to determine whether the posthu- mous son can take as a purchaser in the ca.-e stated. The decision of the House of Lords, in the case of Reeve v. Long, a little prior to tlie *statute of William III. does, indeed, [*28 settle the question in favor of the posthumous son, if that decision is to be regarded as a con- clusive authority. I am satisfied that it was in opposition to the old technical rule, that a remainder must vest, either during the partic- ular estate, or else at the very instant of its determination. This rule was founded on feudal principles, and was intended to avoid the inconveniences which might arise by ad- mitting an interval when there should be no tenant of the freehold as well as to preserve 1. Lord Loughbprough says, that the object of this statute was not to affirm the case of Reeve v. Long, though it did by implication affirm it ; but it established that the same principle should govern where the limitation was by deed of settlement. (4 Ves., Jun.,342.) JOHNSON'S CASES, 3. 1802 JONES v. CASWELL, SURVIVOR, &c. 28 an uninterrupted possession between the par- ticular estate and that in remainder. The rea- son of the rule has, therefore, in a great degree, ceased ; and I should be very unwilling to re- vive it, unless I felt myself absolutely bound by authority, especially when it went to de- feat the claims of a posthumous son, merely because he was posthumous. On the other hand, the decision of the House of Lords, on a question of law brought regularly before them, by writ of error, must be regarded as of the highest authority. The circumstance of the lapse of a century since that decision was made, during which time it has stood un- changed, cannot but add to the force with which it presses upon the question before us. Since that time the rights of posthumous chil- dren have been constantly extending. An in- fant en venire sa mere has been considered, in- dependent of the statute of William III., as in actual existence, for many purposes, accord- ing to the maxim of the civil war, posthumous pro nato habetur. (1 Vesey, 86 ; 5 Term Rep., 49 ; 4 Vesey, Jun., 241, 242, 322, 325, 334, 335.) " I know of no argument," says one of the judges (Grose, J. , in Lancashire v. Lancashire), "founded on law or natural justice, in favor of the child who is born during his father's life, that does not equally extend to a posthu- mous child ; " and, in a late case (2 H. Black., 400), the court go so far as to say that it is now settled, that an infant en venire sa mere shall be considered, generally speaking, as 29*] born, for all purposes for *his own benefit. In that case Ch. J. Eyre observed, that an infant en ventre sa mere came clearly within the description of a child living at the time of his father's death. Since the decision of the English House of Lords has received such sanction, by the pro- gressive and liberal consideration of the situa- tion of posthumous children, I do not hesitate to conclude, that the posthumous son in the case before us was to be considered in esse at his father's death, so far as to be competent to take the remainder in tail ; and, consequently, that the lessor of the plaintiff is entitled to recover. LEWIS, Ch. J., was also of the same opinion. Judgment for t/ie plaintiff. 1 Cited in 13 Wend., 441 ; 2 Paige, 40. JONES v. CASWELL, Survivor, &c. Note Consideration Agreement not to Bid at Execution Sale Action on by Indorsee Note Void. The land of A was advertised for sale by the sheriff, on an execution against A, at the suit of B. C, who had purchased the land, without knowing of 1. It appears from the decision of K. B. in Long v. Blackall (7 Terra Rep., 103), and a note to that de- cision (p. 103), and from the opinions of the judges in 4 Vesey, Jun., 341, 343, 322 to 335, 334, 335, and 342, that an infant en venire sa mere is to be deemed ex- isting, for the purpose of executory devises, and that such infants are considered, in all respects, as in esse. Indeed, the Lord Chancellor (p. 342) seems to consider the decision of the House of Lords as a sound decision, and always acquiesced in, and that it was sanctioned by Lord SOmers. (See also 11 Vesey, Jun., 119, 120.) NOTE. As to promissory note, when consideration can be inquired into, see note to Thomson r. Davies, 13 Johns., 112. JOHNSON'S CASES, 3. the judgment and execution, agreed with B,, who attended the sale, that if he would not bid against him he would pay B the amount of his execution, and give him his note for the further sum of $150, and B acceded to the terms and desisted from bid- ding. In an action on the note against C, by the second indorsee, to whom it had been negotiated, after it became due, and with a knowledge of the circum- stances under which it was given, it was held that the consideration of the note might be inquired into ; and that the consideration being unconscien- tious, and against public policy, the note was void. Citations Powell on Cont., 344; 3 Burr... 1672; Cowp., 393 ; 6 Term Rep., 542 ; 8 Co., 97, o. THIS was an action on seven promissory notes made by the defendant and one Noble, to John Ward, who indorsed them in blank. They were dated the 9th March, 1798, and payable to Ward, or order, on the first of October following. The cause was tried at the Herkimer circuit, before Mr. Justice Radcliff . *Samuel Jones, . the father of the [*3O plaintiff, had obtained a judgment and execu- tion against one Egleston, whose lands were advertised for sale in March, 1798. The land* had been previously sold, for a valuable con- sideration, by Egleston to the defendant and Noble, but subsequently to the judgment, and without knowledge of it by them. Jones at- tended at the time of the proposed sale, and the defendant and Noble, in order to secure themselves, entered into negotiation with Jones, and to induce him to desist from bid- ding against them, offered to pay him the amount of the execution, and the further sum of $150, the amount of the notes in question. The terms were accepted, and Jones said, at the time, that he had a further debt against Egles- ton, and had been at considerable trouble and expense in obtaining the judgment. Jones did not bid, but the defendant and Noble pur- chased the land, at the sale, for the amount of the execution, which they paid to Jones ; and for the further sum of $150, John Ward, by agreement of the parties, gave his note to- Jones, and the defendant and Noble gave the present notes to Ward, as a counter security to- him. In April, 1798, Ward indorsed the pres- ent notes in blank to Jones, and the latter gave xip Ward's note in exchange. In May, 1799, the plaintiff obtained the notes from Jones, his father, knowing the consideration for which they were given, and the circumstances under which they were obtained. The question reserved, upon these facts, was, whether the consideration of the notes was valid, and the plaintiff entitled to recover. It was argued at the last term, by Mr. Griswold for the plaintiff, and Mr. Gold, contra. RADCLIFF, J. In this case several questions have been raised. *1. Whether there existed any consid- [*31 eration for the notes on which the action is brought, or whether the contract was a nudum pactum ? 2. Whether the consideration was lawful ? 3. Whether, if lawful in itself, an undue ad- vantage was not taken of the defendant's situa- tion, and the demand therefore \inconscien- tious ? 607 31 SUPREME COURT, STATE OP NEW YORK. 1802 If any one of these points be decided in favor of the defendant.there is no doubt but the plaint- iff ought to be affected by it, for Ward, the person to whom the notes were originally given, was a nominal party only. Samuel Jones, the father of the plaintiff, was the real party ; and the notes were received by the plaintiff from his father, when they were overdue, and with full notice of the consideration and the circum- stances under which they were given. The plaintiff is, therefore, to be deemed as standing in the same light with the original payee of the notes. As to the first question, I think the contract was not void, merely for the want of consid- eration. It is not essential that the considera- tion should import a certain gain or loss to either party. It is sufficient if the party in whose favor the contract is made, foregoes some advantage or benefit, or parts with a right which he might otherwise exert. (Pow. on Cont., 344; 3 Burr., 1672.) In the pres- ent case, Jones, the judgment creditor, had a right, in common with others, to bid at the in- tended sale of the property, and his bidding might probably have had a considerable influ- ence on the sale. He agreed to relinquish this right, in consideration of the money secured by the notes. This was, at least, a principal part of the consideration, and, if not illegal, was sufficient to support the contract. Whether the consideration was legal is a question of considerable moment. It is import- ant that sales at auction, and particularly on legal process, should be conducted with good faith, and without prejudice to any party. The forbearance of bidding was the leading, 32*] and, *in reality, the only consideration. It is true, Jones said he had a further debt against Egleston, and had been at considerable expense in obtaining this judgment. But those were not the claims for which the notes were given, and they were no incumbrance on the real estate of Egleston. If the defend- ant and Noble had sought relief in equity, they would have been entitled to a discharge, or an assignment of the judgment, on paying its amount ; and Jones could not have tacked these demands. The notes being no claim on the property in the hands of the defendant and Noble, if they were extorted from them, at the moment 01 the sale, it was an undue advantage taken of their situation, and ought not to succeed. The forbearance of bidding was, therefore, the real consideration, and I think it a consideration which ought not to be sanctioned in a court of justice. The law has regulated sales on execution with a jealous care, and enjoined such proceedings as are likely to promote a fair competition. A com- bination to prevent such competition is con- trary to morality and sound policy. It oper- ates as a fraud upon the debtor and his remaining creditors, by depriving the former of the opportunity which he ought to possess, of obtaining a full equivalent for the property which is devoted to the payment of his debts, and opens a door for oppressive speculation. On a similar principle, the bidding of puffers at auction, to enhance the price for the benefit of sellers, has been adjudged, in English courts, a fraud on real bidders, and the pur- chaser not held by his bid. (Cowp. , 395 ; 6 608 Term Rep., 542.) An attempt to silence bid- ders cannot be viewed in a more favorable light. I am, therefore, of opinion, that the consid- eration of the notes was illegal and void, and that judgment of nonsuit ought to be entered. KENT, J. As the notes were indorsed by Ward to Jones, with full knowledge in Jones of the circumstances under which they were given, he having been *the principal in [*33 the negotiation, and as the notes were indorsed by Jones to his son, after they were due, and with full knowledge, also, in the son, of the original negotiation, I consider the merits of the case between the parties the same as if the suit was in the name of the original payee. The defendant is entitled to go into the con- sideration of the notes. And, upon the facts stated, I am of opinion, that the notes were given without valid consideration. All that Samuel Jones could, or ought to have demand- ed, in consequence of his execution, was the amount of his judgment. That was paid him by the defendant, and to demand the further sum of $150, for desisting from bidding at the the sale, was an unconscientious demand. It was a consideration against public policy, which encourages bidding at sales on execu- tion. This was the language of the old law (8 Co., 97 a), and the same policy is pursued in our statute, which directs how long, and in how many places, notice of such sales shall be given by the sheriff. The defendants were at the auction, struggling, as innocent purchas- ers, to protect themselves from loss ; and ad- vantage was probably taken of their fears and their anxiety to preserve the estate. The suggestions of Jones, that he had a further debt against Egleston, and had been at trouble and expense in obtaining the judgment, do not appear to have formed any part of the consideration of the notes. They appear to have been thrown out, after the negotiation had been completed, and the contract made. We cannot take them to be anything more than mere suggestions, as they have not been supported by proof. The notes, therefore, resting wholly on the consideration that the plaintiff's father should desist from bidding at the sale, I think the consideration must be adjudged void, as against public policy, 1 and the interests of the original debtor, whose property is liable to be sacrificed by such combinations. *I am of opinion that judgment of non- [*3 suit must be entered, according to the stipulatu in the case. *34 tion LEWIS, Ch. J. , was of the same opinion. Judgment of nonsuit. Modified 15 How., 519 ; 21 Wall., 449 ; 1 Me Lean. 300 ; 2 Me Lean, 277, 300 ; 3 Wood. & M., 491. Distinguished 13 Johns., 114. Cited In 4 Cow., 732 ; 5 Wend., 601 : 4 Johns. Ch., 254 ; 1 False, 148 ; 3 N. Y., 130 : 4 N. Y., 455 ; 71 N. Y., 546 ; 5 Laus., 557; 6 Hun. 394 ; H. & D., 192. 1 See Doolln v. Ward, 6 Johns. Rep., 195. JOHNSON'S CASES. 3. 1802 STAGG AND SNELL v. THE UNITED INSURANCE COMPANY. 34 STAGG AND SNELL v. THE UNITED INSURANCE COMPANY. Marine Insurance On Vessel Disabled at Sea Total Loss. Insurance on a vessel, from New York to Cura- $oa. The vessel met with heavy gales, in conse- quence of which she sprung aleak, and was obliged to have her mainmast cut away ; and after much -difficulty arrived at Curafoa, but could not be re- paired for want of materials, and if repaired would not have been worth the expense ; it being admit- ted that she received her death-wound during the voyage, it was held that the insured were entitled 'to recover for a total loss. Citations 1 Term R., 1ST ; Id., 252. THIS was an action on a policy of insurance on the ship Mary Ann, from New York to Curacoa. She sailed the 25th February, 1800, on the voyage insured. On the 28th February she experienced a heavy gale of wind, and became leaky, so that she could not be kept free of water with both pumps. The next day the gale continued and the pumps became choked with corn, and the water gained to four feet in the hold. To secure the ship, part of the cargo was thrown over- board, and in consequence of a heavy sea, it became necessary to cut away the mainmast. When the gale abated, the ship had nine feet of water in the hold. She was with great la- bor enabled to reach Curacoa on the 28th March. For want of materials the ship could not be repaired there, nor if refitted would she have sold for enough to pay the expense of her repairs. It was admitted that she re- ceived her death-wound on the voyage to Cura- coa. The* plaintiffs abandoned* for a total loss. The question was, whether the plaintiffs were entitled to recover for a total, or for an average loss only. The cause was argued, at the last term, by Mr. B, Livingston for the plaintiffs, and Mr. Troup, contra. 35*] *Per Curiam. The plaintiffs are enti- tled to recover as for a total loss. The ship was not worth repairing at Curacoa. This want of value arose from injuries sustained during the voyage by the perils of the sea ; for it is admitted that the ship received her death- wound on the voyage. In the case of Cazelet v. St. Barbe (1 Term Rep., 187), when the ship arrived at her port of destination she was not worth repairing, but it was also found by the jury that the damages sustained by the ship during the voyage did not exceed forty-eight per cent. The court accordingly held them- selves concluded, by the finding of the jury, from saying there was a total loss. The jury said the loss from the voyage was only forty - eight per cent. The age of the ship might have rendered her not worth repairing. Mr. Justice Ashhurst observed, that it was not stated in that case that the ship received her death- wound in the course of the voyage. But in this case it is expressly so stated, and we, ac- cordingly, must intend that the loss became technically a total loss, by reason of the loss of -JOHNSON'S CASES, 3. N. Y. REP., 1 the voyage. The case of Lockyer et al. v. Of- fley (1 Term Rep. , 252) is not applicable to the the present, for there the ship was sound, and in safety, after having been moored for twen- ty-four hours, at the port of destination. And being so sound, the underwriters were not to be responsible for subsequent damages, al- though the cause of them might be traced up to the voyage. Here the ship was not in safe- ty or sound when moored. She was disabled by the sea, so as not to be worth refitting. The court are, accordingly, of opinion that the plaintiffs are entitled to recover for a total loss. Judgment for the plaintiffs. *RUNDLE ET AJ,. V. MOORE AND POLLOCK. [*36 Marine Insurance Abandoment Adjustment By Agent of Insured Through Miatake or Negligence Agent's Liability. Where the insured employed a factor or agent to settle with the insurers for a total loss,and an aban- donment was duly made, and the agent, after- wards, through mistake or misapprehension of a let- ter of the insured, or from negligence, adjusted the claim with the insurers, as an average loss, at 20 per cent., and cancelled the policy; it was held that the agent was responsible for the whole amount, being considered as substituted in the place of the insur- ers. was an action of assumpsit. The dec- J- laration recited a policy of insurance, in the name of the plaintiffs, on goods, on board the ship Peggy, at and from Bordeaux to Phila- delphia. The whole cargo was valued at $65,000 and was insured by Church and others, to $16,- 000 with the usual printed clauses concerning prior insurances. The ship sailed on the voy- age, and was wrecked, and the goods lost, of which the usual notice and proof were ex- hibited. The plaintiffs employed the defendants, as factors, to settle with the underwriters, as for a total loss, which they promised to do, or re- turn the policy uncancelled. But the defend- ants, contrary to their promise and duty, ad- justed the loss at twenty per cent, and can- celled the policy, 7 ; Alsop v. Com. Ins. Co., 1 Sum., 451 ; Fosdick v. Nor- wich Ins. Co., 3 Day (Conn.), 108; Locke v. N. A. Ins. Co., 13 Mass., 61 ; Putnam v. Mercantile lus. Co., 5 Mete., 386 ; Griswold v. N. Y. Ins. Co., 1 Johns., 205 ; 3 Id., 321 ; Barclay v. Cousins, 2 East, 544 ; Sal- tus v. Ocean Ins. Co., 12 Johns., 107 ; 14 Id.. 138 ; Hen- rickson v. Margetoon, 2 East, 549 ; Hodgson v. Glov- JOHNSON'S CASES, 3.. 1802 ABBOTT v. SEBOK, ETC. Citations 2 Johns. Cas., 36; 1 Johns. Cas., 377; Park, 267; Millar, 261; Park, 259; Millar, 226; 3 Term H., 13. THE first of these causes was an action on a policy on profits, upon goods, on board the ship Mary, from Batavia to New York, with liberty to touch at the usual places of refreshment. The policy was dated the 23d November, 1798, and the goods valued at $12,- 000, on profits. No loss was to be paid under five per cent, unless in case of general aver- age. At the trial, the plaintiff proved the policy, and interest in the cargo, to one eighth thereof, and an abandonment made on the 5th April, 4O*] 1799. The captain testified,* that, while off the Cape of Good Hope, on the voyage, the ship met with heavy gales of wind, and worked and labored much/ that in the latitude of Ber- muda they met with violent gales, during three weeks, in which the ship labored much and leaked much in her upper works, and suf- fered considerable damage. Her crosstrees were sprung, her seams open, masts sprung, rigging and sails injured, and her rudder near- ly off, &c., and the seamen all sick. Finding that he could not get into New York, the cap- tain, on the 28th December, 1798, bore away, and arrived at St. Kitts on the 7th January following. After two surveys the ship was condemned as not worth repairing, and the cargo was landed and stored ; and the ship and cargo were sold at auction, under the direction of William S. Robinson, the supercargo, who was also part owner of the ship and cargo, and purchased the ship at the sale, for $4,700, the 30th January, 1799, on account of the owners. She was afterwards repaired, so as to bring a light cargo to New York ; but the captain did not think it would have been safe to come in her, at that season, with her former cargo, | which consisted of sugar, tea and coffee ; the last article forming the principal part. Her cargo from St. Kitts was 226 hogsheads of rum and seventy-three hogsheads of molasses. She drew five feet more water on her arrival at St. Kitts than when she sailed from that place. By the laws of St. Kitts, the cargo could not have been sold there, unless the ship had been previously condemned, as unfit to proceed on the voyage ; and after being landed, the cargo could not be exported, on account of owners, in any other ship than the one which brought it. The captain was of opinion that the ship could not have been completely repaired at St. Kitts, for want of materials and workmen. The repairs at St. Kitts were done by the ship's carpenter. The owners sold the ship in New York, after her arrival, at auction, for $10,100, 41*] *which was about her cost before she sailed for Batavia, besides her outfits. The I price of coffee was higher at St. Kitts than at I New York. The carpenter of the ship, after stating the particular damages she sustained off the Cape of Good Hope, and in the latitude of Bermuda, said that he would not have gone in her, with the cargo, for half the value. And he was of opinion she could not have been repaired at St. Kitts so as to have brought on her cargo. He repaired the ship himself, not being able to fet any assistance, except one person for a few ays. He was one of the surveyors, and the two surveys were made under oath. He proved the facts in the two reports, and the judge allowed him to refer to the copies to refresh his memory. The proceedings in the admiralty at St. Kitts, on the surveys, were offered in evidence, and their admission was objected to, but the objec- tion was overruled. They stated, in substance, the appointment of surveyors, on the petition of the master ; that the surveyors reported the ship to be totally unfit to proceed on her voy- age, and that the cargo must be unladen. After the cargo was partly unladen, a second survey was ordered, and the report thereon was, that the ship could not be repaired there, for her full value when repaired ; that it would be dangerous to reload her and proceed on the voyage, and to repair her would be highly detrimental to the interest of the owners of the ship and cargo. The court then, on the prayer *of the master, ordered the cargo and ship to be sold. On the part of the defendant, it was proved, by one of the wardens of the port of New York, that he, with others, surveyed the ship on her arrival, and that he thought her suffi- cient to have brought her cargo of coffee and sugar to New York. The deposition of the warden and three other very competent persons annexed to the case, stated particularly* the survey made at [*42 New York, the 16th May, 1799, and which was in favor of the ability of the ship. The deposition of William S. Robinson, taken in New York the 25th November, 1800, though objected to, was read in evidence. He was on board during the voyage, and 'confirmed the captain's testimony as to the voyage, the damage, the surveys 'at St. Kitts, &c. He further stated, that a great proportion of the cargo was damaged and perishing, and that it was prudent to sell it at St. Kitts ; that the sale of the ship and cargo was open and fair, and he purchased the ship at $4,700, on account of the owners ; that the repairs to the ship at St. Kitts cost $750. The cargo at St. Kitts was taken on account of the owners, and the rum was purchased with part of the pro- ceeds of the Batavia cargo. The ship was sold at New York by the owners. The plaint- iff was owner of one eighth of ship and cargo and concurred in the sale of the ship, and approved of what was done at St. Kitts. The cargo brought to New York was divided among the several owners, according to their interest. It appeared, also, from the depositions of several witnesses, taken at St. Kitts, one of Avhom was a surveyor of the ship, that, in their opinion the ship was seaworthy when she left er, 6 East, 316 ; Eyre v. Glover, 16 East, 218 ; Mum- ford v. Hallett, 1 Johns., 439; Loomis v. Shaw, 2 Johns. Cas., 36. Profits sinTc with the cargo and the loss of the one is prima facie evidence of the loss of the other, and throws onus on the defendant. JOHNSON'S CASES, 3. Patapsco Ins. Co. v. Coulter, 3 Peters, 222. See this case for full dis- cussion, on this point, of English and American authorities. See, also, McGaw v. Ocean Ins. Co., 15 Mass., 341; Coolidge v. Gloucester Ins. Co., 23 Pick., 405. Gil SUPREME COURT, STATE OF NEW YORK. 1802 Batavia. The examination of the ship was not very thorough, and it was generally under- stood that the high prices at St. Kitts was the cause of the sale of the cargo. The judge, in his charge to the jury, said he considered the policy in the light of a wager ; that the plaintiff was entitled to recover, unless there was an absolute loss of the subject. There could be no average ; it must be a total loss or nothing. That on an abandonment, the insurer on the goods, not the insurer on the profits, would be entitled to the amount of the sales at St. Kitts. That if the captain acted bonafide, and for the best interest of those concerned, the plaintiff ought to recover. 43*] *A verdict was, accordingly, found for the plaintiff, as for a total loss. In the second cause, also, which was an ac- tion on the policy on the ship, for the same voy- age, a verdict was found for the plaintiff for a total loss. The third cause was an action on the policy on the commissions of the plaintiff, who was supercargo, during the same voyage, and a verdict was found for the plaintiff. The causes were argued by Messrs. Pendleton and Harwon for the defendants, and , Messrs. Troup and Hamilton for the plaint- iffs. KENT, J. A motion is made, on the part of the defendants, for a new trial, on the follow- ing grounds : 1. That the plaintiff could not recover, with- out a total destruction of the subject from which freight was to arise. 2. That if it was to be considered as an in- terest policy, the plaintiff ought only to re- cover an average loss. 1. A policy on profits is a valid policy. The point has never been directly decided by this court, and' it may, therefore, not be improper to bestow a few observations upon it. In the case of Loomis & Tillinghast v. Shaw (2 Johns. Cases, 36), which was a policy on profits, the only point submitted was, how much the plaintiff ought to recover. The court decided, that, admitting the plaintiffs were entitled to recover, they were entitled to an average of three eighths only. In the case of Tlie United Insurance Company v. Len- nox (1 Johns. Casdi, 377), the court seemed to consider it as a point granted, that freight, which is the expected profit on a ship, and, therefore, extremely analogous to profits aris- ing from any other subject, was insurable. The English law appears to be settled. In 44*] the case *of Grant v. Parkinson (Mich. Term, 22 Geo. III., Park, 267; Millar, 261), which was an insurance on profits to arise on a cargo of molasses, Lord Mansfield, at the trial, and the Court of K. B. afterwards, on a motion to set aside the verdict, held that the plaintiff had an insurable interest, and the policy was not to be considered in the light of a wager. This doctrine received more decisive confirmation in the case of Le Crafts v. Hughes (Easter Term, 22 Geo. III., Park, 269 ; Millar, 226), in which it was held that profits which one had reason to expect from a subject in possession was an insurable interest. The 012 case of Crawford et al. v. Hunter (3 Term Rep. , 13) settled the question in a still more formal and explicit manner. These insurances on freight, on profits, on commissions, &c., are said to be founded on the course and interests of trade, and are greatly conducive to its prosperity. The doctrine, however, that runs through all the cases is, that the assured must have an interest in the subject matter from which the profits are to proceed, in order to prevent the policy from being considered a wager. I do not mean to be understood that a policy without interest is not valid at common law. One of the cases I have cited is pretty conclusive to prove that wager policies were valid before the statute of George II. This, however, is not the point before us. Policies on profits, or freight, if the assured be owner of the sub- ject which is to create them, are not wagers, but policies on a real and substantial interest ; and, in this light, we are to examine the policy in the present case. 2. The question, then, in this case is, whether the plaintiff is entitled to recover a total, or an average loss only. The policy engages that the ship shall per- form the voyage, with the goods on board ; and, if prevented, by any of the enumerated perils, the plaintiff shall be indemnified *for [*45 such a profit on the goods. What combina- tion of facts will constitute a loss of the voyage, and justify the assured to abandon the thing insured, depends on the special cir- cumstances of each particular case. In the present instance, they are considerably com- plex, and the testimony somewhat variant, and some parts of it susceptible of different con- clusions. The ship, in the course of her voyage, was injured by the perils of the sea, and forced into St. Kitts. She there underwent two sur veys, under the direction of the admiralty. The cargo was landed, and from the injury that both ship and cargo had received, the difficulty of repairing the ship, the impedi- ments resulting from the laws of the place, and the result of the surveys, the captain con- sidered the voyage as broken up, and acted ac- cordingly. The ship was sold and purchased by the supercargo, who was part owner of the ship and cargo. He purchased her, in behalf of the owners ; and, on her return to New York, the owners affirmed the purchase, and sold the ship for their own benefit. This was a waiver of any claim for a total loss on the ship. It is like the case of Saidler & Craig v. Church, decided in July Term, 1799, in which it was held, that if the insured, after abandon- ment, affirm the purchase of the vessel by the captain, he waives his abandonment, and is entitled only to an average loss, on the princi- ples that omnis ratihabilio mandato cequipara- tur. With respect to .the cargo at St. Kitts, that was taken in on account of the owners, and the rum was purchased with part of the pro- ceeds of the East India cargo. The plaintiff, as part owner of the ship and cargo, approved, in general, of what the supercargo had done at St. Kitts ; and the cargo brought to New York was divided among the several proprietors, ac- cording to their respective interests therein. JOHNSON'S CASES, 3. 1802 MURRAY ET AL. v. ALSOP AND POMEKOY. 4o I cannot perceive, however, that any act of the plaintiff is to be considered as a waiver of his claim for a total loss on the profits ; and the question, in respect to the policy on pro- 4G*] fits, is, whether the evidence *will war- rant a finding, for a total, or only an average loss. Considering this as an interest policy, 1 think it follows that there may be an average loss. The court allowed one in the case I have cited, of Loomis & Tillinghast v. Shaw. In this tespect there was a misdirection of the jury. They were told there must be a total loss or nothing ; and found accordingly. What shall be the criterion of an average or total loss, in respect to profits, I cannot, at present, with clearness, decide. Perhaps the estab- lished rule in respect to ship and cargo of a loss of more or less than half the subject in value, may be applicable. If so, the question here will be, whether the more profitable half of the cargo might not have been brought in the same ship to New York. I suggest this, as a rule that may, perhaps, apply ; but with- out giving any opinion upon it, I think the jury were misdirected, and the subject was not left to them in that latitude in which the law required. I am of opinion, therefore, that owing to this misdirection, to the complex nature of the case, its importance, its novelty, and the uncertainty whether justice has or has not really been done, there are sufficient rea sons why this case should be re-examined by a jury. In a common case I would let such a verdict rest. But this has peculiar claims to our interference, from the extent of the de- mand, and the novelty of some of the points discussed. There was a question raised on the admissi- bility of the admiralty surveys, which it may be proper to notice. The question is not very important, in the present instance, because the substance of the facts contained in those sur- veys was proved by witnesses. But, as the ques- tion may arise again, on the trial, I mean to be understood that I hold them inadmissible to prove the facts they recite. 1 To admit them so far would contravene the established rules of legal evidence. A party would be con- cluded by the testimony of persons whom he 47*] had no opportunity *to cross-examine. It is altogether ex-parte evidence, and must be rejected. The testimony of the supercargo was also objected to, but I think his testimony competent, because he is not interested in the event of the suit. The verdict cannot be given in evidence for or against him. My opinion, accordingly, is, that a new trial ought to be awarded in this case, and in the cause on the policy on commissions, and also in the cause on the ship, with this opinion, in the last case, that the plaintiff cannot re- cover beyond an average loss. RADCLJFK, J., and LEWIS, C h. J., were of the same opinion. New trials granted, on payment of coxtnt. Explained 3 Peters, 240. Cited in 2 Cai., 286 ; 10 Johns., 179, 490 ; 2 Rob., 550 ; 2 E. D. Smith, 297 ; 3 Peters, 240. 1. See Wright v. Barnard, 2Esp. N. P. Cas., 70. JOHNSON'S CASES, 3. MURRAY ET AI.. v. ALSOP AND POMEROY. Marine Insurance On Vessel Represented to Carry Certain Papers Capture Paper* on Board Not Found or Produced Not a Co r m- pliance icith Representation No Recovery. A ship was insured from Nantz, in France, to the United States. The insured, in the order for insur- ance, represented that the ship was French built, and owned by American citizens, and would have on board the original bill of sale, or an attested copy of it, and also a certificate of the American consul. During- the voyage she was captured by a British cruiser, and carried into Halifax, and con- demned as French property. The captain, in his answers to the standing Inter- rogatories, in the Admiralty Court, denied all knowl- edge of the bill of sale, and stated that the certifi- cate of ownership and log-book were the only papers on board when the ship left Nantz, and that no papers had been destroyed or secured by him, and that no papers were delivered by him, except the certificate, which he gave up to the captors. It appeared that the bill of sale was, in fact, on board, and afterwards delivered to the assured, by the master, on his arrival at New York. It was held, that merely having the bill of sale on board, was not a substantial compliance with the represen- tation of the assured, unless it was produced, or capable of being produced, when occasion required ; and that it was a material document, essential to the protection of the vessel, and necessary to be on board, and that the insured were, therefore, not entitled to recover. Citations 1 Johns. Cas., 363 ; 1 Rob. Adm. Rep., 103, 106. S was an action on a policy of insurance J- on the ship Elizabeth, at and from Nantz, to the United States, valued at $10,000. The cause was tried at the New York Circuit, iu November, 1800, before Mr. Justice Lewis. The order for the insurance was dated the llth November, 1795, in which the ship is de- scribed as French built, and warranted safe on the 3d of September, preceding. It *also [*48 stated that she was owned by American citi- zens, but that no warranty thereof would be given ; that she would have an original bill of sale, or an attested copy of it on board, and also a certificate of the American consul ; and that the plaintiffs wished to be covered against all risks. The ship was captured on the voyage, and condemned at Halifax as French property ; and the captain, in his answer in the admiralty, to the standing interrogatories, said, "he knew nothing of any bill of sale, and never heard of any. That the ship had her log-book and cer- tificate of ownership, and these were all the books and papers that were on board from the time the ship left Nantz to her capture. That there were no papers burnt, torn, or thrown overboard, secreted or destroyed in any man- ner or way whatever. That he knew of no pjfper whatever that respected the ship, except the certificate aforesaid, and that no papers were delivered out of the ship, except the cer- tificate he gave up to the captors." It was further proved on the trial, by Colvin Ellis, that an original bill of sale of the ship, re- corded in Nautz, conformably to the laws and NOTE. Marine Insurant e, national character. See Murray v. United Ins. Co., 2 Johns. Cos., and note. 613 48 SUPREME COURT, STATE OP NEW YORK. 1802 customs of the French republic, was by him delivered to the captain previous to his sailing on the voyage, which bill of sale fully transT- f erred the ship from one citizen Reurdet, mer- chant, and resident at Nantz, to John B. Da- bery, George W. Murray, the plaintiff, and Robert Lyle. It was further proved, by the affidavit of the captain, "that all the papers which he delivered to Robert Murray, one of the plaintiffs, on his arrival at New York, from Halifax, were on board the ship when she was captured ; and that he kept them in his possession from the time of the capture until he delivered them to Murray, and that, at the trial, at Halifax, those papers were not con- sidered by him as being connected, in any de- free, with the fate of the ship, and he did not now that there was any copy of, or original bill of sale, for the ship, among the papers." It further appeared that the bill of sale had 49*] been sent from *the United States to France, to be proved, and that Dabery and Lyle, two of the vendees in the bill of sale, were citizens of the United States, and in France at the time of the sale. Upon these facts, the judge charged the jury, that the bill of sale was a material docu- ment, and ought, under the representation, to have been on board the ship, and so on board as to have been in a situation to be read and shown by the captain, as occasion required, for her protection. The jury found a verdict for the defendants. A motion was made for a new trial, which was argued by Mr. Hamilton for the plaintiffs, and Messrs. Hopkins and B. Livingston for the defendants. RADCLIFF, J. The insurance, in this case, was against all risks. The plaintiffs, how- ever, represented the ship as belonging to American citizens, but they would not war- rant that fact. Still they represented to the underwriters that the ship would have an original bill of sale, or an attested copy of it on board. It appears to have been on board, but not to the knowledge of the master, or in a situation to be used for the protection of the ship. It was, then, on board for no valuable purpose, and might as well not have existed. If it was a material document, the representa- tion was not complied with. The materiality of this paper is the only question in the cause. Its object was to prove" the fact that the ship was American. Although the plaintiffs would not warrant that fact, yet they undertook that this evidence of it should accompany the ship. Without it, she would undeniably -"appear to be French, she being French built. The plaintiffs represented her so, and it was also so proved by the captain on her trial at Hali- oO*] fax. Without *this bill of sale, oian attested copy of it, it was, therefore, impossi- ble to maintain that she warf American. If the bill had appeared, that fact, in the first instance, would have been proved, for the vendees were Americans. To this it was answered, that although Americans, two of them, it was admitted in the case, were resi- dents in France, and that by the law of nations they would have been deemed Frenchmen, in respect to their commercial concerns and 614 property, connected with that country, and that the bill of sale was, therefore, not mate- rial. The admission is not strictly so. It is merely that they were in France at the time of the sale. I do not know that their being in : France alone, by any rule of the law of nations, 1 would subject them, in regard to their property, ! to be treated as Frenchmen. If carried to so i rigorous an extent, it would deprive neutrals j of some of their most essential rights, and j tend to cut off alj commercial intercourse be- I tween them and the belligerent parties. If the i vendees had been resident there, and made ! France the seat of their commercial operations, the objection might have applied, and would have been supported by the decision in the case of Arnold & Ramsay v. The United Insur- ance Company (1 Johns. Cases, 363). But the vendees being in France only, ought not to be so considered ; and it appears, in fact, not to be so considered by the courts of the nation who were the captors in this instance. In another view this document was also ma- terial. The actual condemnation, or the law to warrant it, is not the only consideration. The insufficiency of papers is a common ground of seizure and detention, and particu-, larly so where property appears originally to have belonged to the enemy of the captors. In that case a bill of sale, or other satisfactory evidence of the transfer, is indispensable, and the want of it a reasonable cause of seizure. The underwriters were, therefore, exposed to a greater risk, as the ship was clearly liable to seizure and detention, at least, for the want of this paper. *I therefore think that in every light [*5 1 it was material that the charge of the judge was right, and that the verdict ought not be disturbed. KENT, J. A motion is made for a new trial on two grounds : 1. That the bill of sale was on board, and that was sufficient. 2. That the bill of sale was not a material paper, and did not affect the insurance. I am satisfied that merely having the bill of sale on board the ship was not a substantial compliance with the representation, if it was not capable of being produced when the occa- sion for it arose. The object of the plaintiffs, in representing to the defendants that it would be on board, was to exhibit to them a material item in the calculation of risk. It must have been considered as auxiliary to the protection of the ship. It was evidence of her title. This was the reason of representing it as on board, and the defendants, we are to presume, placed some reliance on the efficacy of this representation. But it would be absurd to suppose that having the bill of sale on board, in a concealed situation, and never to be shown, fulfilled the intent of the parties. If S it was really on board, of which I think there j can be but little doubt, the captain had either ; wholly forgotten" that< he had it in his posses- j sion, or he willfully concealed it. It was not ; produced at the capture, and on his examina- tion in the admiralty the captain attested that he knew nothing of any sale, and never heard of anj r . For any object within the meaning of the representation, the bill of sale is to be considered as not being on board. JORXSON'S CASKS. 3. 1803 THE PEOPLE v. BYKON. The only question, then, is, whether the bill of sale is to be considered as a material paper, and requisite to have been on board? It was considered as a material paper by the plaintiffs, or why did they state, in their order for insur- .ance, that it should be on board? It was con- sidered as a material paper in the Admiralty -5i*] Court, *at Halifax, or the captain would not have been called upon to answer to the question respecting the bill of sale. It was, undoubtedly, a material document, and essen- tial to the protection of the ship. It is stated b3* the plaintiffs that the ship was French built, and originally owned by a French citizen, at Nantz. The bill of sale, then, was essential to prove the property of the ship vested in an American citizen. Sending the ship abroad without the bill of sale, or due proof thereof, was sending her abroad without the evidence of title, and exposed the ship to seizure, and to be carried in for adjudication. I do not say that the bill of sale would have been a suffi- cient security to the ship, if it had been on board and produced. That would have depend- ed on other circumstances, of which the Prize Court must have been the competent judge. In case of a purchase in an enemy's country, Sir W. Scott observes (1 Rob. Adm. Rep., 103, 108), it must be under very special circum- stances that a bill of sale would be deemed suffi- cient proof ; but, where there is no bill of sale, that alone, according to the constant habits of the court, founds a demand for further proof. In another place (p. Ill) he calls the bill of sale a documentary evidence ; and, indeed, if the other circumstances be fair and consistent, the bill of sale will be full proof, for it is per- mitted to neutrals to purchase ships in the 'enemy's country. I have no doubt, therefore, that the bill of sale was a material paper, con- ducive to the safety of the ship ; and not being on board, so as to be produced and ! shown to the captors, there was a failure of a substantial compliance with the representation. The verdict was, accordingly, right, and the plaintiffs must take nothing by their motion. LEWIS, Ch. J., was of the same opinion. Motion denied. Cited In 9 Allen, 549. Citations 2 P. Wins.. 121, 122; Vauirh.. 182 : 1 Inst , 112, 113; 1 Atk., 537: 2 Vern., 514; Cases temp. Talb., 121, 127 : 3 Wils., 530. 4>3*] *THE PEOPLE r. BYRON. 1. Action on bond Surety Two Guardians j Death of One Trust Survives Liability of\ Surety. 2. Demurrer Rule of Pleading i First Error Fatal. 3. Guardian Interest in Ward's Estate General Powers. In an action of debt on a bond, against the surety for two guardians, appointed by the Court of Chjm- cery, conditioned for the faithful performance of then- trusts, where one of the g-uardians died, it was held that the trusts survived, and that the surety , was responsible for the acts of the surviving 1 guard- ; ian ; the bond being co-extensive with the trusts. was an action of debt on a bond, bear- JL ing date the 8th May, 1789, executed by Sarah Byvanck, Thomas Sanders, and the de- fendant, by which they bound themselves, jointly and severally, in the penalty of f 10,- 000. The bond was conditioned that Sarah Byvanck and Thomas Sanders, two of the obligors and joint guardians of the person and estate of Peter Byvanck, an infant, should faithfully execute the trusts respectively re- posed in them, according to the terms of the order in chancery appointing them, and render a true and faithful account thereof when re- quired. The defendant pleaded three pleas : 1. Non estfactum. 2. Reciting the order in chancery, mentioned in the condition of the bond appointing the two obligors, guardians as aforesaid, and that they should enter into a bond with one surety, conditioned to be void if the guardians should faithfully execute the trusts reposed in them, as such, and render a true account of the same when required ; the plea then averred that the two guardians did faithfully execute their trusts, according to the terms of the said order, and render a true and faithful account there- of, &c. 2. The third plea stated that after the ap- pointment aforesaid, to wit, on the 14th June, 1795, Thomas Sanders died, and that, until his death, the two guardians did faithfully exe- cute their trusts, and that the said Sarah, after the death of Sanders, did render a true and faithful account of the trust. Replication to the second plea, stating that on the 2d May, 1793, Sarah Byvanck married John Stoddard, and on the 14th June, 1795, Thomas Sanders died, and that it was ordered by the Court of Chancery, on the 12th of March, 1798, that the appointment of Thomas Sanders and Sarah Byvanck, as guardians, should be revoked, and that at the same time William Alexander was appointed *guard-[*o4 dian, with authority to possess himself of the estate, and faithfully manage the same, and bring all requisite suits for the infant, whereof the defendant had notice. That on the 24th July, 1798, it was ordered by the Court of Chancery, that the said John Stoddard and his wife deposit on oath, with one of the masters, all books of accounts, vouchers, &c., relating to the 'said infant, or his estate, and account with the new guardian, on oath, for the rents and profits of the estate, and the disbursements and payments made, and that the master re- port the proceedings had thereon, of which order the defendant had notice. That on the 1st July, 1799, in pursuance of the last order, Stoddard and his wife accounted before the master ; and that $2,991.33 was the amount of the balance found against them, after allowing all proper discharges, which balance reported by the master was, by the Court of Chancery, on the 10th December, 1799, ordered to be NOTE. Death of one of tioo or more co-trustees sur- rtval of trust. " Trust property is generally limited to trustees as joint tenants ; and if by the terms of the gift it is doubtful whether the trustees take as joint tenants JOHNSON'S CASES, 3. or tenants in common, courts will construe a joint tenancy if possible on account of the inconvenience of trustees holding as tenants in common ; and. where statutes have abolished joint tenancy, an exception is generally made in the case of trustees. And courts 615 SUPBEMK COURT, STATK OF NEW YORK. 1802- amended, by striking out $288.08, being the sum allowed for interest ; and the report, as to the residue, was confirmed ; and in case the sum so confirmed was not paid by the 1st January, 1800, the bond aforesaid was directed to be prosecuted at law, by the said William Alexander, of which last order Stoddart and his wife and the defendant had notice. That the sum so allowed and ordered to be oaid was, afterwards, regularly demanded of Stodd- art and his wife and the defendant, and by them severally refused to be paid ; therefore, &c. There was a second replication to the 3d plea, which was the same as to the second plea. The rejoinder to the first replication stated that the account rendered and taken before the master was not an account solely and exclu- sively concerning the trusts reposed in Sanders and Sarah Byvanck, the joint guardians afore- said, or concerning the rents and profits of the infant's estate, received by either of them in the lifetime of Sanders, but that such account included charges for the receipt of moneys .55*] arising from such *rents and profits by the said guardiaas, jointly and severally, as well before the commencement as during the continuance, and after the determination of the trusts, and especially for the receipt of moneys by Sarah, arising as'aforesaid, as well in capac- ity of one of the guardians as in her private and personal capacity. To the second replication there was a special demurrer, and the causes of demurrer were that the replication did not contain a direct or sufficient answer to the plea. That it was not shown thereby that the account taken before the master in any manner related to the execution of the trusts reposed in San- ders and Sarah Byvanck, the joint guardians, nor related to the rents and profits of the in- fant's estate, received by either of the said guardians, by virtue of the trust, and that it was not shown whether any and what part of the moneys in arrear and due from Stoddart and his wife were due on account of the re- ceipt of any such rents and profits received by either of them during the continuance of the trusts in the two guardians jointly, before or after the existence thereof ; and that it was not shown to what amount (if any) Sarah Byvanck, or Sanders, or either of them, were in arrear, on account of the guardianship aforesaid. Joinder in demurrer. There was a surrejoinder to the rejoinder to the first replication, stating that the account rendered and taken before the master was an account solely and exclusively of and concern- ing the trusts reposed in Sanders and Sarah Byvanck, as guardians aforesaid, and an issue thereon to the contrary. Mr. Hamilton, in support of the demurrer.. Messrs. Troup and Hanson, contra. RADCLIPF, J. On these pleadings I think it unnecessary to examine the merits of the replication which is demurred to, and, of course, the causes assigned for the demurrer. At the same time, I do not hesitate to express *my opinion that I think it materially [*5O defective. It is an established rule of plead- ing that on a demurrer of either party the first error is fatal. If, therefore, the defendant's plea be insufficient, our judgment must be- given thereon for the plaintiff, whatever may be the defects in the plaintiff's replication. It is the second plea of the defendant which is brought into view by this demurrer. It states that after the appointment of Sarah Byvanck and Thomas Sanders, as joint guard- ians of the infant, to wit, on the 14th June, 1795, Thomas Sanders died, and that until the time of his death the said Thomas and Sarah did faithfully execute the trust reposed in them, according to the terms in the said order, and that the said Sarah, after the death of the said Thomas, did render a true and faithful account of and concerning the said trusts, ac- cording to the condition of the said bond. This plea presents the only material questions between the parties, which are, 1. Whether the guardianship survived to Sarah Byvanck after the death of Thomas Sanders. 2. Wheth- er, if it did not survive, the security by this bond extends to the faithful execution by the surviving guardian. If these points are de- cided in favor of the plaintiffs, the plea must be adjudged insufficient, being confined to the due execution of the trust in the lifetime of Sanders, and to Sarah Byvanck the surviving guardians, accounting for their joint execution of the trust only. It is generally settled, and particularly in the instance of testamentary guardians, in the case of TJie Countess of Shaftesbury (2 P. Wms., 121. 122; Vaugh., 182), in which this question was fully considered, and I think it results from the nature of the thing that this appointment creates not merely a naked power, but a power coupled with an interest, and therefore must survive. (1 Inst., 112, 113.) I see no difference will not allow a process for the partition of a trust estate. Therefore, upon the death of one of the original trustees, the whole estate, whether real or personal, devolves upon the survivors, and so on to the last survivor ; and upon the death of the last survivor, if he has made no disposition of the estate by will or otherwise, it devolves upon his heirs, if real estate, and upon his executors or administrators if it is personal estate. The title in the surviving: trustee is complete, and no breaches of trust after the death of his co-trustees can be charged upon their estate ; nor can the representatives in his co- trustees interfere with his management of the trust state, even if he is insolvent or unfit for the trust. The cextuiffue trust alone can interfere or apply to the court for redress or relief. So all rigrhte of action are in the surviving trustee ; and he may sue in his own name.or as survivor, according: as the cause of action accrued before or after the death of his co-trustees, and in case of his death his executor or administra- 616 tor may continue the action. The rule is that actions- must be brought in the names of the parties to the contract." Perry on Trusts, sec. 343, citing Baldwin v. Humphrey, 44 N. Y., 609; Whiting v. Whiting, 4 Grav, 236; Moses v. Murgatroyd, 1 Johns. Ch., 119; De Peyster v. Ferrers, 11 Paige, 13 ; Shook v. Shook, 19 Barb., 653 i Shortz v. Unang-st, 3 Wutts & S., 45; Gray v. Lynch, 8 Gill, 404 ; Mauldin v. Armistead, 14 Ala., 702; Powell v. Knox, 16 Ala., 364; Kichcson v. Ryan, 15 111., 13 ; Stewart v. Pettus, 10 Mo., 755 ; Jenks v. Backhouse, 1 Binn., 91 ; King v. Leach, 2 Hare., 57: Watkins v. .Specht, 7 Coldw., 585 ; Webster v. Vandeventer, 6 Gray., 428 ; Wheatley v. Boyd, 7 Exch.,20; Nichols v. Campbell, 10 Gratt., 561; Rob- bins v. Dishon, 19 Ind., 204; King v. Lawrence, 14 Wis., 238 ; Farrelly v. Ladd, 10 Allen, 127 ; Childs v. Jordon, 106 Mass.,' 323 ; Brazier v. Clark, 5 Pick., 96; Town v. Ammidown, 20 Pick., 535. See, also, Perry on Trusts, sec. 426. JOHNSON'S CASES, .'k 1802 THE PEOPLE v. BYRON. between testamentary guardians and guardians by chancery appointment. In either case, such o7*] guardian has a vested *interest in the estate of his ward. He may bring actions relative thereto, and make avowry in his own name, and may also make leases during the minority of the infant. He has, in all respects, the dominion, pro ternpwe, of the infant's estate, and possesses more than a naked authority. His trust has been compared to that of an exec- utor and administrator, but I think it more like that of an administrator. An executor may continue the trust by transmitting it to his own executor, but an administrator cannot. It is so far personal, and terminates with his death. (1 Atk., 537 ; 2 Vern., 514 ; Cas. temp. Talb., 127.) Yet the trusts in both these cases are held to survive. I am, therefore, clearly of opinion, that the guardianship in this case survived to Sarah Byvanck. 2. With respect to the extent of this security. The bond is joint and several, and is expressed in general terms. It is conditioned that both the guardians shall faithfully execute the trust reposed in them according to the terms of the order, and as a right they may. The trust, of right, survived, and the security must be con- sidered as concurrent with the right, as pursu- ing the nature of the trust, and commensurate with it. The Court of Chancery ought not, and I am persuaded would not have committed the trust without a security co-extensive in its opera- tion. If a special, or limited security had been intended, it ought to have been so expressed, and it would then have been in the power of the Chancellor to have directed such further security as the occasion might require, or to have refused the guardianship on such terms. Administration bonds are expressed in the same manner, and, I believe, have never been doubted to extend to the faithful execution of the trust by the surviving administrator. The bond, in this case, therefore, being general, for the faithful performance of a joint trust, which, from its nature, survives, I think the security must be deemed to be equally extensive, and that it applies to the surviving guardianship o8*J of *Sarah, as well as to the period of her joint guardianship with Sanders. If the de- fendant did not wish to continue as her surety, he ought to have applied to the Chancellor for relief, who, on the death of Sanders, woxild, no doubt, have released the present, and re- quired other security, or have revoked the guardianship. Not having taken any measure to exonerate himself, he remains liable, and, I think, on the merits of this plea, without ex- amining the subsequent proceedings, the plaint- iff must have judgment. KENT, J. The question raised by the demur- rer is as to the validity of the second replication, which goes to make the defendant responsible for the acts of Sarah, as surviving guardian. The demurrer to the second replication assigns special causes, and I think it was well taken ; for the replication is, at least, deficient in the requisite precision, and certainly in point of form. But as it is a rule on demurrer to recur to the first fault in pleading, it is un- necessary to dwell particularly on the defects of the replication, if the third plea, to which it relates, be substantially bad. JOHNSON'S CASES, 1. That plea states that until the death of Sanders the two guardians did faithfully exe- cute their trusts, and that Sarah, after the death of Sanders, did render a true and faithful ac- count, &c. It does not state that she contin- ued, in the language of the bond, faithfully to execute the trust reposed in her. She may have rendered a true account of her receipts and expenditures, and yet have not continued a faithful guardian. She may have been guilty of numerous acts of omission, by which the estate of the infant was wasted. This brings us, therefore, to consider the material question, in this cause, viz., whether the guardianship survived, and if it did, whether the bond inured as a security for her acts as surviving guardian. Guardianship is a trust coupled with an interest, and *when two guardians are [*o9 appointed, and one of them dies, it follows, from the nature of the trust, that it must sur- vive. Guardians are, in this respect, analogous to administrators. In the case of Eyre v. Tlie Countess of SJiaftesbury (2 P. Wms., 103), it was very solemnly decided by Lord Ch. Maccles- field, and, afterwards, by the three lords com- missioners, that a testamentary guardian sur- vived ; and the principles of that decision were applied equally to a guardian in socage (of which the chancery guardian has now become the substitute); and several cases applicable to- guardians in socage were cited, to show that guardianship was not a naked authority which did not survive, but was an authority coupled with an interest which did survive. Guard- ianship was compared, by one of the com- missioners, to the case of an administration granted to two which did survive. * The sur- vivorship of an administration granted to two, was maintained by Lord Ch. Talbot (Cases temp. Talbot, 121) on the same ground of an authority coupled with an interest. This is the reason of the rule, and it applies equally to the socage or chancery guardian as to a guardian by will, and to all of them, as well as to executors, administrators and other trustees. The surety was responsible for the separate acts of each separate guardian during their joint lives. Were it otherwise, the provision of taking security might have been wholly evaded, and it would have been of little use.. Nor do I perceive why the security should not be responsible for the acts of the surviving guardian. It could not have been the inten- tion of the Court of Chancery, in requiring the security, that it should cease on the death of one of the guardians, so long as the trust sur- vived, since the necessity of security would equally exist. This would not, as was stated in the 'case of Wright v. Ru$sel(3 Wilson, 530), be extending the responsibility of the security. There is here no new person assumed as a partner whose acts are to be protected by the bond. The responsibility is still confined to the acts *of Sarah, one of the guardians, [*(>O and for her acts the bond was always a secu- rity. In order to give the security its full efficacy, and to make it attain the end in view, the construction must be that the defendant became responsible for the execution of the trusts respectively reposed in them so long as those trusts shall remain in force ; and if it be- once settled that the trusts continued in the 617 SUPKEME Cocnr, STATE OF NEW YORK. 1802 survivor, the security will be equally .co-ex- tensive. The idea that her acts in the one case were under the circumspection of her co-guardian, and in the other case were without such check, does no appear to be of force sufficient to control the other consideration that the bond must, on sound principles, be deemed, where there is no special limitation otherwise, to be as comprehensive as the subject matter to which it was to apply ut res magis vateal quam p?reat. I am of opinion, accordingly, that the third plea is bad, in substance, and that judg- ment ought, upon that plea, to be rendered for the plaintiff ; unless the defendant should wish to amend, on the usual terms. LEWIS, Ch. J., dissented. Judgment for the plaintiff '. BALLARD v. WALKER. 1. Contracts Specialty or Parol Written Not Seeded are Parol. 2. Written Agree- inent Setting forth the Sale of Land Promise to Deliver Deed, on Receipt of Mortgage Statute of Frauds. 3. I^apse of Time Evi- dence liescisnion All contracts are by specialty or parol; and if written, and not sealed, they are parol agreements. A signed a written agreement, reciting 1 that, whereas, he had sold to B a lot of land who had agreed to pay him 300 by a certain day, and to execute a bond and mortgage to secure the pay- ment ; A, therefore, promised and agreed to deliver to B a good and sufficient deed for the land, on delivery of the bond and mortgage by B. In an action brought by B against A on this agree- ment, it was held, that this being a mutual agree- ment for the sale and purchase, there was a valid consideration ; and that being a writing signed by the party to be charged, it was sufficient under the statute of frauds; but four years having elapsed from the date of the agreement before B gave notice to A that he should insist on the agreement, and five years before he tendered a performance on his part, it was presumed that the parties had rescinded the contract; and though A nad, within a year after the contract, sold and conveyed the land to C so as to incapacitate himself to perform his agreement with B, yet that circumstance was not held sufficient to control the legal presumption that the contract was rescinded. Citations Eq. Cas. Abr., 21, pi. 10; 1 Pow. on Cont., 2*j; 1 Fonb., 165, 166; 2 P. Wms., 82; 9 Mod., 2 ; Term R., 350. THIS was an action on a written agreement for the sale of land, dated at New York, the 23d November, 1793, signed by the defend- ant, which recited that, whereas, he had on that day sold to the plaintiff lot No. 62, in the C>1 *] *township of Homer, in the military tract, for which the plaintiff had ajrreed to pay the sum of 300, in two equal installments, to wit, on the 23d November, 1798, and 23d November, 1799, with interest ; and to execute a bond and mortgage therefor, he did, there- fore, promise and obligate himself to deliver to the plaintiff a good and sufficient warranty deed of the land, on delivery of the bond and mortgage aforesaid, properly executed and recorded. The cause was tried at the Oneida Circuit in June, 1880, before Mr. Jmtice Had- On the trial, the agreement being admitted, the plaintiff proved that in October, 1797, Joseph Kirkland, his attorney, presented the agreement to the defendant, "at the request of a person to whom the plaintiff had sold it, and informed him, that although not authorized then to demand performance, yet he was directed to inform the defendant that the plaintiff would get good security to pay the money by the time stipulated. It was also proved that the defendant then said he would not perform on his part, for he had sold the land long before. It was further proved that in October, 1798, Kirkland again called on the defendant with the agreement, and a power of attorney from the plaintiff, together with a bond and mortgage executed by the plaintiff and his wife, and demanded the deed of the defendant ; that the defendant made the same reply as before, and added that a jury must determine the damages. It appeared further, that the mortgage so executed was not recorded, nor was the power of attorney ; and that the defendant had executed a deed of the same lot to Aaron Burr on the 17th October, 1794. The power of attorney was proved by an acknowledgment only indorsed, and taken before a judge of Onondaga County. It was proved, on the part of the defendant, by the certificate of one of the clerks of the Supreme Court, that judgments were obtained against the plaintiff, after the date of the agree- ment, and before the application *fpr [62 a performance, amounting to upwards of 1,- 000, and which appeared to be unsatisfied. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case contain- ing the above facts. The case was argued by the Attorney-General for the plaintiff, and Mr. Emott for the defendant. RADCLIPF, J. On the argument, the counsel for the defendant contended 1. That the contract was invalid for want of consideration, and for want of being reduced to writing, and signed by the parties, as required by the statute against frauds. 2. That if valid, it was rescinded before the suit was commenced. 3. That the existing incumbrances against the plaintiff were such as to justify a refusal on the part of the defendant. The first objection, as far as it rests on the want of consideration, appears to me inap- plicable to the case. If the agreement would be valid, as a contract by parol merely, there would certainly be an ample consideration. The defendant agreed to convey lands to the plaintiff, for a stipulated price, and the plaint- iff, in consideration of such conveyance, agreed to pay the price to the defendant. Here were mutual and valid considerations. If the agreement was not sufficiently reduced to writing, or signed by the parties, agreeably to the statute of frauds, it is void by force of that I statute, but not for the want of consideration, i The objection founded on the statute proceeds j on the idea that an agreement is not sufficient in i writing, unless it be signed by both the parties. In the present case it was signed by the defend- ant only, who undertook to convey. The words of the statute, as far as they apply to the sub- JOHNSON'S CASES, 3. 1803 BALI.AUD v. WALKER. ject, are, that no action shall be maintained upon any contract or sale of lands, &c. , unless <53*] *the agreement upon which such action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith." The language of the statute itself, therefore, supposes that the writing may be signed by one ~bf the parties only, and such was the construction it received soon after it passed, in the case of Jfattonv. &ray(Eq. Cas.Abr., 21, pi. 10), in chan- cery, where it was held that a contract signed by one of these parties was sufficient to take it out of the statute, and that both the parties were bound. The same rule appears to have been adopted in later cases (1 Pow. on Cont., 286 ; 1 Fonb., 165, 166) in that court, and I think it consistent with the object and intent of the statute. The present case is certainly within the terms "signed by the party to be charged therewith," for the defendant, who signed the contract, was possessed of the interest, and was the party who made the sale which was the subject of this regulation. The inter- pertation of the statute, at law and in equity, must, in relation to this question, be the same, and, of course, the plaintiff, on this ground, cannot be deprived of a recovery. The second objection is founded on the length of time which elapsed before a perform- ance was demanded, or an offer to perform was made to the plaintiff. The contract bears date the 23d November, 1793. It remained open and in a situation to be carried into effect by both parties near a year, to wit, till the 17th October, 1794, when the defendant conveyed the premises to Mr. Burr. It does not appear that the parties, during this period, had agreed, or either of them had done any positive act to rescind the contact. The first notice which the defendant afterwards received of the plaint- iff's insisting on the contract, was in October, 1797, near four years subsequent to the making of it, and the first offer to perform on the part of the plaintiff was in October, 1798, near five years subsequent thereto. Under such cir- cumstances a court of equity would presume 64*J (3 P. Wms., 82; 9 Mod., 2), *and I think a court of law ought equally to presume, that the contract had been rescinded by the consent of parties, or discharged by some com- position between them. Great inconveniences would ensue if stale contracts were allowed to be set up, at any distance of time, and I think it a just and salutary rule that they shall be deemed to be abandoned, unless enforced within a reasonable time, or the delay satis- factorily accounted for. The circumstance that the defendant, in this instance, incapacitated himself to perform the contract within a year, Is not inconsistent with this presumption, and merely controls its application to that period. Neither do I think that his answer to the attorney for the plaintiff operates against it. He, at first, said that he could not perform the agreement, for he had conveyed the land long before, and, afterwards, added that he con- sidered the contract to have been abandoned, and that a jury must determine the damages. The last expression implies no more than, if liable, he must submit to a legal decision. I am, therefore, of opinion that we must consider the contract to have been rescinded JOHNSON'S CASES, 3. by both parties, and, of course, that the plaint- iff has no right to recover. It is unnecessary to examine the third objection, or to notice several other questions which might arise on the testimony relative to the points which I have assumed in giving this opinion. KENT, J. The points raised are, 1. That the contract was without consideration and void ; 2. If valid, that it was at an end, and dis- charged before suit brought ; and, 3. That the defendant was justified in his nonperformance by the judgment against the plaintiff. The circumstance of this agreement being in writing does not, of itself, remove the objec- tion to its being without consideration. It was lately settled in England *by all the [*65 judges, upon a reference to them by the House of Lords, in the case of the Executors of Hughtx v. Hughes (7 Term Rep., 350), that all con- tracts are, by the laws of England, distin- guished into agreements by specialty and agree- ments by parol ; and that if an agreement be merely written, and no specialty, it is an agree- ment by parol, and a consideration must be proved. The decision of the House of Lords was in conformity to this opinion of the judges, and it must be considered as the true rule of the common law. But this contract is valid as far as a consid- eration is in question. One agrees to sell and the other to convey. It is sufficient if the writing be signed by one party only and ac- cepted by the other. This takes the case out of the statute of frauds. (1 Eq. Cas. Abr., 21, pi. 10; 1 Pow. on Cont., 286; 1 Fonb., 165, 166.) The present agreement is signed by the party to be charged therewith. The construc- tion of the statute, in law and equity, must be the same. But from the lapse of near four years, before the plaintiff gave notice that he insisted on the contract, and near five years before he offered to perform, we must presume the contract to have been rescinded. (2 P. Wms., 82 ; 9 Mod. , 2.) Public convenience requires this construc- tion. The circumstance that the defendant incapacitated himself, does not control the presumption. 1 On this ground, the defendant is entitled to judgment. LEWIS, Ch. J., was of the same opinion. Judgment for the defendant. Distinguished 42 N. Y., 533. Cited in 3 Johns., 214 ; 14 Johns., 487 ; 6 Cow., 448 ; 7 Cow., 49 ; 9 Cow., 50 ; 4 Denio, 535 ; Clarke, 405 ; 5 X. Y., 244 ; 24 X. Y., 59 ; 1 Lans., 211 ; 1 Barb., 130 : 4 Barb., 359; 26 Barb., 298; 14 How., 333; 30 How., 440; 2 Abb., 267 ; 8 Abb., N. 8., 424 ; 10 Leg. Obs., 43 ; 2 Rob., 354; 5 Sand., 105; 1 Sweeny, 657; 4 McLean, 359. 1. By the French law, though the mere lapse of time within which a contract or condition is to be performed, is sufficient, on principles of natural justice, to dissolve an engagement; yet, by the usages of France, the party must be summoned be- ! fore a magistrate, who, in default of his appear- ance, or performance, will declare the agreement void ; and such a summons and order of a judge seems necessary, according to the same usage, even where no time is limited, before there can be an ex- tinguishment or rescission of the contract. But though no such sentence or order is obtained, yet, if a considerable time has elapsed, a presumption will arise that the contract has been extinguished or rescinded by the tacit consent of the parties. (Pothier, Trait, dee Oblig.. No. 636 : Trait, du Contrat de Vente, No. 480.) tiltt 68 SUPREME COURT, STATE OF NEW YORK. 180* 6*J *WILKIE r. ROOSEVELT. Action on Note Accommodation Indorsement Usury. Where A made a note payable to B, who indorsed it, merely for the accommodation of A, who passed the note to C to raise money on it by having the same discounted in the market, and C discounted the note at a premium of three and one fourth per cent, per month, and after deducting the discount applied the proceeds to the payment of moneys lent by him to A, and afterwards in the course of his business passed the note to D, who brought an action against B, the first indorser, it was held that the note, though indorsed by B for the accommo- dation of A, passed immediately from A to C, and that the transaction in its inception was usurious, and the note, therefore, void. Citation 2 Johns. Gas., 60. THIS was an action of aawmpsit, brought against the defendant, on a promissory note, made by Jacob Mark & Co., for $1,- 366.66, dated 3d June, 1799, and payable in ninety days, to the defendant or his order. At the trial of the cause, it was proved by C. W. Goodrich that he had been in the prac- tice of receiving notes from Mark & Co., for the purpose of raising money, by discounting them in the market. That on receiving them he credited them at the nominal sum, and afterwards accounted for the amount, deduct- ing the discount. That he was limited as to the amount of the discount to be paid by Mark & Co. That, under a general agreement to this effect, he received, on or about the 3d June, 1799, a note from them for that pur- pose, corresponding in every particular with the present note, and which was indorsed by the defendant ; that he could not positively say that the note in question was the same note he so received ; but he had not, to his knowl- edge, received from them any other note, drawn and indorsed by the same parties, and of the same date and sum, and therefore fully believed it was the same ; that this note was to be discounted, and the proceeds applied to the payment of moneys which had been lent by him to Mark & Co., and that, deducting the excess beyond legal interest on their money transactions, there would still remain some balance due to him. A memorandum or account of the note was then offered in evi- dence, which the witness Goodrich acknowl- edged he had delivered to Mark fc Co., in which the proceeds of a note corresponding precisely with the present, were stated to be $1,244, and must, therefore, have been at- tended with the discount of about three and 67*] one quarter per cent, per *month. Shortly after receiving the note, Goodrich de- livered it to the plaintiff, at the instance, and in presence, of one Peck, together with sev- eral other notes, in payment of the considera- tion money for the purchase of a vessel which the plaintiff had sold to Peck. The amount of the note was settled in account between Goodrich and Peck. It was also proved by one Raymond, a clerk of Mark & Co., that they were in the habit of delivering notes to Goodrich to raise money, NOTE. Accommodation, paper, usury. See Jones v. Hake, 2 Johns. Cas., 60, and note. 020 and that he did not know or believe that any note was ever delivered to him by them for any other purpose, excepting a note of $300. This was the substance of the evidence 011 which the judge charged the jury that the ne- gotiation of the note, in the manner disclosed by the testimony, rendered it usurious and void ; and that if they believed the note in question to be the same mentioned by the witness Goodrich, and referred to in the memo- randum, they ought to find for the defend- ant. The jury, however, found a verdict for the plaintiff. Mr. S. Jone#, Jun. , for the plaintiff. Mr. Morton, contra. RADCLIFF, J. From the manner in which, the testimony of Goodrich is stated in the case, it is obvious that he was a reluctant witness. There can, however, be no doubt, upon the evidence, of the identity of the note. The i witness, at the time, received precisely such a i note, drawn and indorsed by the same" parties, J bearing the same date, for the same sum, j payable at the same time, and he knew of no- other of that description, and fully believed it to be the same. Although he seems cautiously to have repeated that he was not positive of the fact, he went as far as any witness could do to identify the instrument. The verdict was, therefore, clearly against *evidence, [*68- and against the law, as directed by the judge, and if that direction was right, the verdict ought not to prevail. I consider this as a transaction existing im- mediately between Mark & Co. and the wit- ness Goodrich. The defendant, who indorsed the note, was a collateral security merely for the accommodation of Mark & Co. He neither paid nor received any value or consideration for the note. It passed immediately to Good- rich, for the purpose of being discounted at usurious interest, and to be applied to the payment of his own debt against Mark & Co. Receiving the note for his own benefit, he might elect to become the holder, and make the discount himself, or dispose of it to others. He chose the former mode, and in the char- acter of holder, negotiated it, through Peck, to the plaintiff. He accordingly charged Mark & Co. with the discount, under color, indeed, of its being made by another, but, in fact, made by himself. He, therefore, must be considered" the lender, and Mark & Co. as the borrowers, at a usurious interest. The only remaining question, then, is, whether the form of the transaction shall protect the parties against the effect of a usurious con- tract. If that were allowed, the statute, on every occasion, might be avoided, and would become a dead letter. The necessity of the case requires a different rule, and it has, ac- cordingly, been uniformly held that no such contrivance or shift can elude the statute. The case of Jones v. Hake (see 2 Johns. Cases 60) in this court, was determined on the same ground. One Watkins there made a note to Hake, which was indorsed to him and others, without any consideration, and for the accom- modation of Watkins merely. It was then delivered to Hake, as a broker, who procured it to be discounted by Herriman, at an usurious JOHNSON'S CASES. 3. 1802 DUSENBUKY V. ELLIS. interest, and it afterwards came to Jones, an innocent holder. We decided that although Watkins and Herriman were unknown to each other, it was to be considered as a contract 69*] immediately between them. *So here, notwithstanding the note was made payable to Roosevelt, and indorsed by him, it was essen- tially an original contract between Mark & Co. on the one part, and Goodrich on the other ; .and, as between them, was clearly founded on usury, and therefore void. For these reasons I am of opinion that the direction of the judge was right, and that the verdict ought to be set aside. KENT, J. There can be no doubt, on this evidence, of the identity of the note. Though the witness Goodrich speaks with apparent caution and reluctance, the evidence appears to me to be irresistible that the note he nego- tiated and the note in question were the same ; and if the direction of the judge was right, the verdict is clearly against law and evidence, .and ought to be set aside. The Defendant, who indorsed the note, must be considered merely as security, and as hav- ing lent his name for the accommodation of Mark & Co. He neither paid nor received .any consideration for the note. It passed im- mediately from Mark & Co. to Goodrich, for the purpose of being discounted, at a usu- rious interest, and to be applied to the payment of his own demand against Mark & Co. He received the note for his own benefit, and credited Mark & Co. with the proceeds, after making a usurious discoimt. Goodrich is, therefore, to be considered as the lender of the money. He took to himself the usurious discount. He passed the note to Peck, as the real holder, and for the amount of it. The transaction was, therefore, originally and in its inception usurious between Mark & Co. 41 nd Goodrich. The evidence of usury appears to me to be decisive and unequivocal, as be- tween them. The account rendered by Good- rich to Mark & Co. in pursuance of their agreement shows the rate of the discount. When a case appears as strongly marked as 7O*] this, we have nothing to do with *the policy of the defense. It is our duty to give effect to the statute, to cause it to be observed, sind to suffer no contrivance or covin of the parties to evade it. My opinion, therefore, is, that the verdict was against law and evidence, and ought to be set aside on payment of costs. LEWIS, Ch. J,, dissented. New trial granted. Cited in 15 Johns., 55 ; 7 Wend., 601 ; 72 N. Y.. Ill ; 7 Peters, 107 : 2 Cranch C. C., 206 ; 2 McLean, 245 ; 3 AVood. & M., 187, 189. DUSENBURY v. ELLIS. Note Signed by One as Attorney Without Autliority Personal Liability. A person who signs a note in the name of another, as his attorney, without any authority for that pur- pose, is personally liable on the note to the party who accepts the note under such mistake or impo- sition. JOHNSON'S CASES, 3. IN error on certioi'a/ri from a justice's court. Ellis sued Dusenbury, before the justice, on a promissory note for $19.77, given by Dusenbury to Levi Fish or order, and by him indorsed in blank. The note was signed by the defendant below in this manner : " For Peter Sharpe, Gabriel Dusenbury, attorney." The note was, otherwise, in the usual form, and began with the words " I promise," &c. It was contended that the defendant was not liable, having signed the note merely as attor- ney for Sharpe, and he produced his letter of attorney, which, however, appeared to be nothing more than the usual power to collect debts, and contained no authority to give notes, or bind the principal, in that way. The justice gave judgment for the plaintiff below. Mr. Van Antwerp for the plaintiff in error. Mr. Emott, contra. Per Curiam. There can be no question bu t that Dusenbury signed the note, without hav- ing any authority *for that purpose. [*71 The letter of attorney could not bind the prin- cipal beyond the plain import of it. An authority to collect debts cannot, by any pos- sible construction, be an authority to give notes. The only question, then, is, whether Du- senbury was not personally responsible as for his own note. On this point we are of opin- ion that if a person, under pretense of author- ity from another, executes a note in his name, he is bound, and the name of the person for whom he assumed to act will be rejected as surplusage. The party who accepts of a note, under such mistake or imposition, ought to have -the same remedy against the attorney who imposes on him as he would have had against the pretended principal, if he had been really bound. Judgment of affirmance. Criticised 16 Minn., 393. Reviewed 26 N. Y., 123. Cited in 19 Johns., 565 ; 1 Cow., 536 ; 8 Cow., 560, 585; 1 Denio, 480; 9 N. Y.,586; 52 N. Y.. 499; 35 Barb., 205 ; 26 How., 483 ; 7 W. Dig., 575. HERRING ID. J. SANGER, who was Impleaded with Z. SANGER. 1. Note Acceptance from One for Debt of Two Receipt no Ej-tinfjuinhment of Debt. 2. Id. Payable at Bank Demand of Maker Per- sonally. A took a promissory note of B for a debt due from B and C, as partners, after the partnership was dissolved, and gave a receipt for the note, when paid, to be in full of the debt. In an action against C on the original debt, it was held that the accept- ing the note was no payment of the precedent debt, and that C was liable. Where a note was made payable at the Bank of Albany, and a demand of payment was made of the maker personally in Albany, but not at the bank, and no objection made at the time, the demand was held sufficient. NOTE A promissory note of itself does not dis- charge the original cause of action. Mooring v. (J21 71 SUPREME COURT, STATE OF NEW YORK. 1802 Citations 1 Salk., 12i; 7 Term R., 66; 1 Esp. | Cases, 3, 4, 5, 6 ; 1 Term R., 655. rpHIS was an action of assumpsit for goods J- sold and delivered. At the trial of the cause a verdict was given for the plaintiff, subject to the opinion of the court on the fol- lowing case : Jedediah Sanger and Zedekiah Sanger, being partners in trade, became indebted to the plaintiff in the amount for which this action is brought. After they had dissolved their partnership, and after advertisement of such dissolution, the plaintiff's agent called on Z. Sanger, one of the defendants, for a settle- 72*] ment, and received for the *balance a promissory note signed by Zedekiah Sanger, payable at the Bank of Albany, and dated the llth March, 1799. The plaintiff's agent gave a receipt for the note, stating that when paid it should be in full of J. & Z. Sanger's ac- count. Payment of the note had been demanded of the drawer, when in New York, and also in Albany, but it did not appear that it had ever j been demanded at the Bank of Albany, or that the drawer was ready, or had offered, to pay it there. And the note was still unpaid. Mr. 8. Jones, Jun., for the plaintiff. Mr. Hopkins, contra. KENT, J., delivered the opinion of the court : It is a settled rule of law that accepting a note for a debt due is no payment of the debt, un- less it be specially so agreed, or unless the creditor negotiates the note. It can only post- pone the time of payment of the debt until a default in the payment of the note. (1 Salk. , 134; 7 Term Rep., 66; 1 Esp. Cases, 3, 4, 5, 6 ; 1 Term Rep. , 655.) In this case, it is stated, that by the express agreement of the parties, the note was not intended to discharge the pre- existent debt, and the receipt of the plaint- iff's agent was given with the express view and intent of holding the defendant still liable. The only question that could be made in this case was, whether the plaintiff had used due diligence in making a demand of payment of the note. Admitting this to be like the case of a creditor accepting a bill for a prior debt, and that he is bound to use diligence to get the money, and to give notice of nonpay- ment ; yet the plaintiff has done all that was requisite for him to do. He demanded the money of the drawer in person at Albany, and no objection being made to the place of demand, it excused the plaintiff from the neces- 73*] sity of making the *demand at the Albany bank. No injury could possibly have arisen to the drawer of the note from the plaintiff's omission to go to the bank. The per- sonal demand, in this instance, at Albany, without any objection, was a waiver of any further demand, and I am satisfied that the justice of the case, as well as the law, is with the plaintiff. Judgment for the plaintiff .* Distinguished 11 Johns., 413. Cited in 9 Johns., 311 ; 1 Cow., 334; 11 Wend., 15; 26 N. Y., 406; 10 Hun., 38; 47 Barb., 36; 4 Wash., 274. 276; 2 Cranch C. C., 471. HOLMES ET AL. e. LANSING, Sheriff, &c. 1. Escape Action for Finding on Record Voluntary. 2. U. ft. Constitution Art. 1, Section 10 Extent of To States Jail Liber- ties. 3. Bond to Sheriff Jail Liberties Waiver Escape Statute. In an action against a sheriff for an escape, if it be averred, or found on the record, that the sheriff permitted the prisoner to escape, it is equivalent to a finding of a voluntary escape. The prohibition in the 10th section of the first article of the Constitution of the United States does not extend to the municipal regulations of the present States, which modify the process and pro- ceedings relative to the recovery of debts, as es- tablishing jail liberties, &c. The act (sess. 24, ch. 91), as to jail liberties, is im- perative on the sheriff, who is bound to grant the liberties to the prisoner on his tendering a sufficient bond; but as this bond is intended only for the sheriff's indemnity, he may waive it, and grant the liberties without taking the bond ; and he will not, therefore, be liable for an escape. Citations Carter, 212 ; 2 Leon., 118 ; Cro. Jac., 657 ; Rev. Laws, Vol. I., p. 350, sess. 24, ch. 91 ; 2 Johns. Cas.. 205 : Act of March 30th. 1799. was an action against the defendant, J- as sheriff of the City and County of New York, for an escape. It was found, by the special verdict, that the defendant, as sheriff of New York, did, "without any compensation or promise there- for, permit John Evers, who was charged in execution at the suit of the plaintiffs, to go at large without the walls of the prison, but with- in the limits of the liberties thereof, and that he so permitted him, at sundry times, in the months of September, October, and Novem- 1. See Rogers & Meritt v. Clapp, 2 Caines, 117 ; Holmes & Drake v. D'Camp, 1 Johns. Rep., 35 ; Markles v. Hatfield, 2 Johns. Rep., 455 ; People v. Howell. 4 Johns. Rep., 296; Tobey v. Barber, 5 Johns. Rep., 68. NOTE. Escape, Voluntary. See Lansing v. Fleet, 2 Johns. Cas., 3, and note. Marine Dock and Mutual Ins. Co., 37 Ala., 254 ; Bill v. Porter, 9 Conn., 23 ; Mines v. McDowell, 4 Ga., 182; Lord v. Bigelow,126 Mass., 185; Miller v.Lums- den, 16 111.. 161 ; Jones v. Ransom, 3 Ind., 327 ; Au- burn City Bank v. Hunsiker, 72 N. Y., 252 ; Logan v. Attix, 7 Iowa, 77 ; Tobey v. Barber, 5 Johns., 68 ; Johnson v. Weed, 9 Johns., 310 ; Hoan v. Clute, 15 Johns., 224 ; Burdick v. Green, 15 Id., 247 ; Thayer v. Peck, 93 111., 357; Jennison v. Parker, 7 Mich., 355; Merrick v. Boury, 4 Ohio St., 60 ; Mclntyre v. Ken- nedy, 29 Pa. St., 448; Clark v. Young, 1 Cranch, 181 ; Case v. Sears, 44 Mich., 195 ; Mussen v. Price, 4 East, 147 ; Mardis v. Kennedy, 23 Ka., n 408 ; Hickling v. Hardey, 7 Taunt., 312 ; Little v. American, etc., Co., 67 Ind., fft ; Wallace v. Agry, 4 Mason, 336. 622 A note ffiren and received for thai, purpose dis- charges prior debt. Shacfty v. Mandeville, 6 Cranch , 253 ; Miller v. Lumsden, 16 'ills., 161 ; Holmes v. De- Camp, 1 Johns., 34; Burden v. Halton, 4 Bing., 454; Smith v. Bettger, 68 Ind., 254; Ames, etc., Co. v. Tucker, 8 Mo. App., 95 ; Teal v. Spangler, 72 Ind., 380 ; Swett v. Southworth, 125 Mass., 417 ; Meyer v. Lathrop, 73 N. Y., 315 ; Hunter v. Weteell, 17 Hup.. 135. See Murray v. Gouverneur, 1 Johns. Cas., 438, and note. For a fun discussion of Paj/ment b?/ negotiable bftt or note, see Parsons on Contracts, Vol. II., chap. 7, and authorities there cited. JOHNSON'S CASKS, 3. 1802 PATRICK v. HALLKTT AND BOWNE. ber. 1798. That he took no bond from the said John Evers, as is mentioned or required in the act for regulating the liberties of jails. That the said John Evers voluntarily returned within the walls before the commencement of the suit against the defendant, which was on the 18th February, 1799." The question was, whether the defendant was responsible to the plaintiffs as for an es- cape. 74*] *KENT, /., delivered the opinion of the court: 1. If it is found that the sheriff permitted a person to go at large, it is equivalent to finding that he voluntarily suffered him. The distinc- tion that runs through all the books is between voluntary and negligent escapes, and not between voluntary and permissive escapes. In the case of Vintner v. Allen (Carter, 212) there was a scire facias brought on a judg- ment, and the defendant pleaded that he was in prison, in custody of the warden of the Fleet, and that the warden permMt ilium ire ad largum. On demurrer to this plea, and argument, it was contended, on one side, that by permission must be understood negligent, and on the other side, that it must be understood voluntary. Two of the judges appeared, in the first instance, to differ on the import of the word permisit, but at last the court concluded it to be a plea of a voluntary escape, and decided upon it as such. In the case of Philips v. Stone(2 Leon., 118) the court said, if a prisoner, being in execution, escape with the permission of the jailer, the execu- tion is utterly extinguished, and the prisoner discharged, which was only, at common law, in cases of voluntary escapes. So in the case of Whiting v. Sir G. Reynal(Cro. Jac., 657), which was an action of debt against the mar- shal for an escape, the declaration stated that he suffered the prisoner to go at large, and the court held this equivalent to a voluntary permission. It might be easy to multiply cases where the word "voluntary" has been used, but those I have referred to, artd the general language of all the books, are sufficient to show that if it be averred or found on the record that the sheriff permitted a man to escape, the court must understand it to be an escape by consent. 2. I have no doubt that the Act of the 5th April, 1798 (Rev. Laws, Vol. I., p. 350, sess. 24, ch. 91), regulating the liberties of jails was a valid act, and not within the prohibition of the Constitution of the United States, that no State 75*] should pass laws impairing *the obliga- tion of contracts. This law was not intended to impair the remedy of the creditor by con- finement of the debtor's body. We need not give any opinion whether taking away the remedy by a ca. sa. on pre-existent contracts would infringe the provision in the Constitu- tion, since that question does not arise on this act. It is only a regulation concerning the jails, and rendering them more convenient and healthy. The remedy still exists in force and effect. That general prohibition cannot be understood to apply to all the detail of mu- nicipal regulations, rendering more easy, or less inconvenient, the process and proceedings for the recovery of debts. The manner of ar- JOHNSON'S CASES, 3. resting and holding to bail ; the proceedings in a suit to judgment ; the time and mode of taking out execution ; the regulation of sales on execution ; the discharge of persons in exe- cution, after thirty days or after three months, on terms ; the establishment and regulation of the liberties of jails, are provisions which have most of them been made or amended since the Constitution of the United Spates ; and are all, more or less, liable to the same ob- jection. The Constitution could not have an eye to such details, so long as contracts were submitted without legislative interference to- the ordinary and regular course of justice, and the existing remedies were preserved in sub- stance, and with integrity. As to the interpretation of this act, I remain of the opinion which was given by the late Chief Justice in the case of Dole, Sheriff, &c. v. Moulton et al. (2 Johns. Cases, 205), that on tender of the bond prescribed it was made the sheriff's duty to grant the prisoner the liberties ; that the words "shall permit," &c., "pro- vided," &c., are imperative, on the condition being performed, and that by the sound con- struction of the act, the bonds to be taken were only for the sheriff's indemnity. If this be the true construction of the act, it must fol- low that the sheriff might waive his indemnity and grant the liberties without such bond. The jails were to be considered as *en- [*7<> larged from the four walls of the ancient law to the assigned limits ; and so long as the prisoner was within those limits, so long was he to be considered, in judgment of law, as in prison. The Act of 30th March, 1799, has put this construction beyond doubt by a declara- tory section. The court are, therefore, of opinion that judgment must be for defendant. Judgment fo-r the defendant. 1 Cited in 31 Wend., 289 ; 11 N. Y., 287 ; 15 N. Y., 663 ; 84 N. Y., 416; 20 Barb., 197; 11 How., 321; 26 How., 85; 57 How., 115; 5 Abb. N. C.,367; 4 Bosw., 404; 2 Park, 342; 4 Wheat., 696 ; 2 Mason, 524. PATRICK 0. HALLETT AND BOWNE. Marine Insurance Seaworthiness Sudden Leak Evidence Latent Defect. Where a vessel was seaworthy at the time she sailed, and on the morning of the next day, suddenly sprung- a leak and was lost, without any stress of weather, or other visible cause, to which the leak could be ascribed, it was held that the loss was to be imputed to some latent and inherent defect in the vessel, which rendered her unseaworthy, and for which the insurer was not liable. THIS was an action on a policy of insurance, dated the 31 t December, 1796, on the ves- sel called the Peggy, at and from Turk's Island to New York. The cause was tried at the New York Circuit, the 8th April, 1801, 1. See 4 Johns. Rep., 45; 5 Johns. Rep., 89, 182: 6 Johns. Rep., 121 ; 7 Johns. Rep., 165, 168, 175, 289. NOTE. Marine insurance teaunnrtMness. See Silva v. Low, 1 Johns. Cas., 184; Goold v. Shaw, Id., 293; Warren v. United Ins. Co., 2 Johns. Cas., 231, and notes. 828 76 SUPREME COURT, STATE OF NEW YORK. 1802 before Mr. Justice Kent, when the jury, with- out going from the bar, found a verdict for the plaintiff. The deposition of Joseph Millett, mate of the Peggy, taken at Baltimore under a com- mission, was read in evidence. He deposed that the Peggy arrived at Turk's Island on the 8th November, 1796, and remained there till the 12th, when she went to sea, tight, staunch and strong, and competent, in point of strength and ability, to perform the voyage, and hav- ing on board a full cargo of salt, bound to New York ; that in the evening of the same day, the Severn, a British ship of war, pressed three of the crew. The master of the Peggy waited till 8 o'clock in the evening, to en- deavor to get back his men, but they not re- turning, and the Severn having made sail, the Peggy put about in order to return to Turk's Island to obtain three seamen to supply the places of those that had been taken out, which 7 7*] was a measure absolutely *necessary, as the remainder of the crew were not sufficient for the navigation of the vessel. About one o'clock the same night the man at the helm called out to the witness that the Peggy was waterlogged, and he went on deck and sounded, and found that she had three and half feet of water in her hold, which she must have made after 12 o'clock, at which time the pumps were tried, and the vessel was found tight. They tried, but could not keep her free, and, the next day, being in sight of Turk's Island, they quitted her in the boat, and she was wrecked on one of the islands. The witness further deposed that the loss of the Peggy was occa- sioned by the sudden springing of a leak, in the manner before mentioned, and not by any storms, violent winds, currents or accidents of the sea. That he himself, the captain and some of the crew made a protest concerning the manner of the loss of the Peggy on Turk's Island, which had been lost in Baltimore, in Julylast.with his pocket-book, but which pro- test was substantially the same with what the witness stated in his'deposition. Christopher Miller, a sea-captain, testified that he thought a vessel might be lost by many ways within a day or two after she sailed, and j T et be seaworthy, and mentioned several in- stances in which it might happen, such as where the fluke of an anchor strikes in the ship's bottom, or a stone is forced in, while the ship lies aground in a dry-dock. He knew an instance of a fish having twice forced its horn through a vessel's bottom, which made her leak ; but in that case the ship's crew lightly felt the shock. That at Turk's Island the water was seven fathoms deep, and there were no dry-docks. Hugh Stocker, a sea-captain, also sworn as a witness for the plaintiff, was of opinion that a vessel might spring a leak and be lost imme- diately after her sailing and yet be seaworthy, and mentioned nearly the same instances as Miller, the other witness ; but being asked whether such a case as this could happen, un- 78*] less it was owing *to some defect in the timbers or plank of the vessel, both witnesses answered that it might have happened from a butt starting, which had not been well fast- tened, or from some such trifling defect. Both witnesses declared that new vessels, perfectly 624 seaworthy, and on their first voyages, some- times foundered at sea from causes not visible or known. Four out of six of the underwrit- ers on the policy had settled the loss on the first production of the protest and other papers. The judge stated the law to be, that if the vessel was not seaworthy, whether the assured knew it or not, the policy was void. The cause was argued by Mr. Pendleton for the defendant, and Messrs. Troup and Hamilton for plaintiff. the Per Curiam. On the facts stated in the case, we are of opinion that the law will in- tend a want of seaworthiness, because no visible or rational cause, other than a latent and inherent defect in the vessel, can be assigned for the loss ; and insurers do not in- sure against latent defects. The verdict was, therefore, against the conclusion legally to be drawn from the facts, and there ought to be a new trial, on payment of costs. New trial granted. ' Cited in-32 N. Y., 437 ; 8 Bosw., 54. See 1 Johns., 341. *THE PEOPLE, ex relatione PHILIP [*79 I. ARCULARIUS AND JAMES DRAKE, THE MAYOR, ALDERMEN, AND COM- MONALTY OF THE CITY OF NEW YORK. Person in Office Under Color of Right Man- damus Quo Warranto. Where a person is already in office by color of right, the court will not grant a mandamus to ad- mit another person, who claims to have been duly elected. The proper remedy is by an information, in the nature of a quo ivarranto*i MR. RIKER, in behalf of therelators, moved for a mandamus to the mayor, &c. , of the city of New York, commanding them to ad- mit and swear the relators, as .alderman and assistant alderman of the 5th ward, on an affidavit that they had been duly elected, &c. 1. This cause, after a second trial, came before the court again on a demurrer to the evidence, which was substantially the same as stated in this case, and Mr. Justice Livingston, in delivering the opinion of the court (Kent, Ch. J., dissenting), laid down the docti-ine that if the vessel be seaworthy at the time of her sailing, and afterwards suddenly spring a leak and founder, without any stress of weather or apparent cause, it is a loss by the perils of the sea, and the plaintiff was entitled to recover. 1 Johns., Rep., 211. But in Talcot v. The Com- mercial Insurance Company (2 Johns. Rep., 124), the court adhered to the doctrine laid down in the above case, and by Marshall, Park, Valin, Emerigon. and other foreign writers on insurance, "that if the ship becomes innavigable, the presumption shall be, that it proceeded from the age and rotten- ness, or other defect of the ship, unless it be made to appear to have been occasioned by sea damage or some unforeseen accident" (Marshall, 2d edit., 156 ; Pothier, Trait desAss. n.,66; Emerig., Vol. I., p. 575, 577, 580) ; and Mr. Justice Spencer, in delivering the opinion of the court in that case, considered that this legal presumption was countervailed by pecul- iar circumstances in the case of Patrick v. Hallett & Bowno, which distinguished that case from the one then before the court. See, also, Barnewell v. I Church, 1 Caines' Rep., 217, 245, 246; 1 Binney, 692. JOHNSON'S CASES, 3. 1802 WARD v. HAIGHT. 79 He asked for a mandamus, 1. To the corpora- tion generally, to admit the relators ; 2. To the mayor and recorder, to swear them ; 3. To James Roosevelt, who had been admitted ;and sworn as alderman of the 5th ward ; and John P. Ritter, the assistant, commanding them to desist from executing their offices, or show cause to the contrary. |! (jThe application was afterwards made, for rules to show cause why writs of mandamus should not issue. Messrs. Biggs, and Hanson contra. Per Curiam. Where the office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person ; be- cause the corporation, being a third party, may admit or not, at pleasure, and the rights of the party in office may be injured, without his having an opportunity to make a defense. 8O*] The proper remedy in the first *instance, is by an information in the nature of a quo warranw, by which the rights of the parties .may be tried. Motion denied. l Cited in-4 Cow., 333 ; 22 Wend., 595 ; 3 Den., 396 ; -5 Hill, 638 ; 27 N. Y., 386 ; 68 N. Y., 472 ; 20 Barb., 305 ; -S. C., 12 How., 128 ; 19 How., 173; 11 Abb., 20. WARD v. HAIGHT. Inquisition Intention of Setting Aside Im- proper Evidence. An inquest of office is to inform the conscience of the court ; and an inquisition will not be set aside on the ground of the admission of improper evidence, unless it appears that injustice has been done. MR. RIGGS, for the plaintiff, moved to set aside the inquest as taken in this cause, before the sheriff of New York, on a writ of inquiry of damages, on the ground that the plaintiff had admitted improper evidence on the part of the defendant, so as to diminish the damages to which the plaintiff was entitled. Mr. Hopkins, contra. Per Curiam. An inquest of office is in- tended to inform the conscience of the court, -and they will not interfere, unless it appears that injustice has been done. The plaintiff does not show that his damages were lessened by the admission of the evidence ; and it is questionable whether it was not proper testi- mony. Where the inquisition is substantially right, we will not nicely examine the legality of the evidence. A new inquisition would not, probably, vary the cause ; nor do the ends of justice require our interference. Motion denied. 1. See 1 East, 38 ; King v. Clarke. JOHNSON'S CASES, 3. X. Y. REP., BOOK 1. *DISBOROUGH ET AL. NEILSON ET AL. [*81 1. Contract for Future Delivery Tender Re- fusal. 2. Id. Optional an to One and Obligatory as to OtJier. Where A agreed to deliver to B by the first of May, from 700 to 1,000 barrels of meal, for which B agreed to pay on delivery, at the rate of six dollars per barrel, and A delivered 700 barrels, and also before the day tendered to B 300 barrels more to make up the 1,000 barrels, which B refused ; it was held that B was bound to receive and pay for the whole 1,000 barrels ; the delivery of any quantity between 700 and 1,000 barrels, being at the option of A only, and for his benefit. A contract may be optional as to one party, and obligatory on the other. Citations Doug., 23; 1 Term. R., 132, 133; Cowp., 218; 2 Johns. Cas., 252. THIS was an action of assumpsit. The par- ties on the 22d January, 1801, entered into a written agreement, by which the plaint- iffs agreed to deliver to the defendants, from the 15th of March to the 1st of May, then next, from 700 to 1,000 barrels of kiln dried Indian meal, in merchantable order, at six dollars per barrel ; and the defendants agreed to pay to the plaintiffs two thousand dollars by the loth March, if it should be called for, and the remainder of the money on the delivery of the meal. The plaintiffs delivered to the defendants between the month of Feb- ruary and the 28th April, seven hundred barrels of meal, in good order, which were accepted by the defendants ; and, on the same 28th April tendered to the defendants three hundred barrels more, in good order, to make up the 1,000 barrels, but the defendants refused to accept the three hundred barrels, alleging that they were not bound, by the con- tract, to receive and pay for more than seven hundred barrels. The only question was, whether the defend- ants were bound to receive and pav for the three hundred barrels, so tendered by the plaintiffs, to make up 1,000 barrels. Mr. Riggs for the plaintiff. Mr. Troup, contra. Per Curiam. By the special agreement in this case, the defendants were bound to re- ceive the whole 1,000 barrels of meal, if ten- dered, within the time specified. It was at the option of the plaintiffs only to deliver any quantity, from 700 to 1,000 barrels, and the stipulation in that respect was for their bene- fit. It does not follow that the contract was not mutual. There was a sufficient consider- ation *on both sides ; and a contract may [*82 be optional with one of the parties, in part or in whole, and obligatory on the other. (Doug., 23 ; 1 Term Rep., 132, 133 ; Cowp., 218 ; Gile* v. Bradley, 2 Johns. Cases, 252.) The plaintiffs are, therefore, entitled to judgment. Judgment for the plaintiffs. Cited in 70 N. Y.,205; 6 Barb., 181 ; 19 Barb., 424 ; 9 Boa., 111. 40 625 SUPREME COURT, STATE OF NEW YORK. 1802 VAN NUYS v. TERHUNE. 1. Trespass Quare Clausum Fregit Justifi- cation Right of Freehold Witness Compe- tency. 2. Competency of Witness General Rule Objection Interest in the Question. In an action of trespass quare clausum freyit, the defendant justified under right of freehold ; and it was held that a person who had conveyed the prem- ises in question to the plaintiff, with covenants of warranty, was a competent witness to prove the trespass. The general rule is, that if a witness cannot gain or lose by the event of a suit, or if the verdict can- not be given in evidence, for or against him, in an- other suit, the objection goes to his credit and not to his competency. An interest in the question only does not disqual- ify a witness, but the objection goes to his credit only. THIS was an action of trespass quare claus- um fregit, and for cutting and carrying away wood, &c. The defendant pleaded the general issue, and justified under a right of freehold. The cause was tried, at the King's Circuit, in June, 1801, before Mr. Justice Lewis. At the trial the brother of the plaintiff was offered as a witness to prove the trespass, but it appearing that he had sold the premises in question to the plaintiff, and, by his deed, had covenanted to warrant and defend the premi- ses to the plaintiff, he was objected to as in- competent, on the ground of interest ; but the judge determined that as long as the plaintiff relied on his possession only to enable him to sustain the action, the warranty given by the witness could not affect his testimony. The witness was accordingly admitted, and a ver- dict taken for the plaintiff, subject to the opin- ion of the court, as to the admissibility of the evidence. Mr. Hopkins for the plaintiff. Mr. Riggs, contra. Per Curiam. Although the title may come in question in this action, and then the wit- ness may be interested in supporting the 83*] plaintiff's title, yet so long *as the par- ties rely on the actual possession only, as in this case, the witness has no interest. His warrant} 7 did not extend to indemnify the plaintiff against any trespass which might be committed on the premises. He is not re- sponsible on his covenant, unless the plaintiff has been evicted on an older or better title ; for unless it is so averred the eviction may be intended to be by a title derived from the grantee himself. The plea of liberum tene- mentum did not, therefore, necessarily affect the interest of the witness. He had not even an interest in the question put, so long as it related to the possession merely. The rule by which a witness is excluded, on the ground of interest, seems to have fluctu- ated, at different periods, but on a careful ex- amination of all the authorities, ancient and modern, the general rule will be found to be, that if a witness will not gain or lose by the event of the cause, or if the verdict cannot be, given in evidence for or against him, in an- other suit, the objection goes to his credit only, and not to his competency. Generally, there- fore, an interest in the question alone will not disqualify the witness, but the objection goes- to his credit only. We do not mean to say but that there may be some technical excep- tions to the rule, but the rule, in its general application, is correct, and is the one adopted by the court. We are, therefore, of opinion that the witness was competent, and that the plaintiff must have judgment. 1 Judgment for the plaintiff. Cited in Post., 190, 237; 10 Johns., 22; 14 Johns. r 81 ; 4 Wend., 297 ; 7 Wend., 236 ; 18 Wend., 497 ; Hall, 633 ; How. Cas., 624. *HESS t>. MORGAN. [*84 Justice's Judgment Body Execution Impris- onment Action Liability of Justice. Where judgment was recovered before a justice,, who asked the defendant if execution should issue,, and the defendant said he did not care how soon, and did not state that he was a freeholder and had a family, or claim any exemption from imprison- ment; and the justice thereupon, without any di- rections from the plaintiff, who was not present, issued an execution against the body of the defend- ant, on which he was imprisoned thirty days; in an action brought by him against the justice, for as- sault and battery and false imprisonment, it was- held that the justice was not liable. Citation 2 Johns. Cas., 49. was an action of assault and battery -L and false imprisonment. The cause was- tried at the Herkimer Circuit, before Mr. Jus- tice Radcliff . The defendant was a justice of the peace. In a suit before him, brought by Jonas Ooth- out and others against the plaintiff, a judg- ment was entered, on confession, against Hess, and on the same day an execution was issued against his body, on which he was taken and imprisoned for thirty days. It appeared that the plaintiffs in that suit were not present when the judgment was ren- dered, having sent the demand to the justice ; and they gave no particular directions con- cerning it, except that the debt should be col- lected as soon as possible. After judgment was given, the justice asked Hess whether execution should issue, and he answered he cared not how soon it issued ; the sooner the better, for he had put his property out of his hands. The execution was then is- sued, and delivered by the justice to a con- stable. Hess said, in presence of the justice, that he was not a freeholder, but whether he made this declaration before or after the execution had issued the witness was not certain. A verdict was taken for the plaintiff, sub- ject to the opinion of the court, on a case con- taining the above facts. If the court should be of opinion that the plaintiff was not enti- tled to recover, a judgment of nonsuit was to be entered, otherwise the verdict was to stand, and judgment be entered thereon. Messrs. Hildreth and Emott for the plaintiff. Mr. Gritswold, contra. 1 See Gilb. Law of Ev., 122. 123 ; 1 Term Rep., 300 : 3 Term Rep., 24, 308 ; 7 Term Rep., 62, 63, 601, 612; 2 Esp. Cases, 488; Peake's Law of Ev., 144. 3d ed. JOHNSON'S CASKF, 3. 1802 JACKSON, EX DEM. WOODWORTH, v. LINDSEY. 85*] *RADCLIFF, J., delivered the opin- ion o the court : This case has been supposed to be governed by the decision in the case of Percival v. Jones (2 Johns. Cases, 49), but I think it is distin- guishable from it. In that case, in order to give effect to the right of the defendant before the justice, it was necessary to adopt the construction that the execution generally issued at the suit of the party who demanded it, that the justice in relation to this process must be considered as a ministerial, and not a judicial officer, as the clerk and not as the judge. But still, if he issued it, as the agent of the plaintiff, without any direction or authority for that purpose, the innocent plaintiff ought not to be affected by his improper conduct, and it must be con- sidered as issued at his peril. In that case, too, the party claimed his exemption from im- prisonment, and alleged the facts necessary to entitle him to it, and the justice, disregarding them, voluntarily issued the execution without any request or direction from the plaintiff. It was, therefore, held that the plaintiff was not liable, and that the justice alone was answer- able. But in the present case it does not ap- pear that the party claimed an exemption from the process, but, on the contrary, he invited it, and said he did not care how soon it issued, and the sooner the better. He did not even assert the facts which entitled him to the ex- emption. It is true he said he was not a free- holder, but there is some doubt on the evi- dence whether this was alleged before or after the execution issued ; and another fact, equal- ly necessary to protect him against the process, to wit, his having a family, was not at all al- leged. Although, as was held in the case of Percival v. Jones, it was not incumbent on him to prove these facts, since no mode of proof was directed or authorized by the act, still he ought, at least, to have asserted his claim to the exemption, and if he. did not, neither the plaintiff nor the justice would be liable. It is 86*] *not, of course, to be presumed that a person sued before a justice is no freeholder, and that he has a family. The general pre- sumption would be otherwise, and it was nec- essary that the party should, at least, assert these facts and claim his exemption, to put the justice and plaintiff on their guard with respect to the nature of the execution to be issued. He ought to have stated that he came within the particular description of the act. His silence on this head, and especially his declarations to the justice on the occasion, amount to an aquiescence or submission to the process, and a waiver of his right to be ex- empted from it. Neither the justice, nor the plaintiff before him, under such circumstances, ought to be considered as a trespasser, or lia- ble to this action. This opinion is not at variance with the case of Percival v. Jones, and the reasoning in that case implies the excep- tion now made. We are, therefore, of opinion, that judg- ment of nonsuit must be entered. Judgment of nonsuit. Cited in 8 Wend., 615. JOHNSON'S CASES, 3. JACKSON, ex dem. WOODWORTH, v. LINDSEY. Kayaderosseras Patent Construction. The commissioners who divided Kayaderosseras patent, in 1770, adopted the true construction of the patent, as to the northwestmost head of the Kay- aderosseras Creek ; and in running a line due north, to the object, where the course mentioned in the patent was northerly. rPHIS was an action of ejectment. The cause JL was tried at the last Washington Circuit, when a verdict was taken for the plaintiff, subject to the opinion of the court, on a case agreed upon. The patent, under which the plaintiff claimed title, was called the Kayaderosseras patent, granted November 2, 1708. Part of the descr'p- tion of the land granted was as follows : ' 'then^ e northerly to the northwestmost head of a creek called Kayaderosseras, about fourteen miles, more or less ; thence eight miles, more north.- erly; thence *easterly or northeasterly, [*87 to the third falls on Albany River, about twenty miles, more or less." The patent had been divided by certain commissioners, in 1770, who ran a boundary line from the head of the Kayaderosseras, eight miles due north, and from thence to the third falls, which they judged to be the construction of the grant. The only question was, whether the con- struction adopted by the commissioners, and the lines run by them, as laid down on their map of partition, were correct. Messrs. Emott and Harison for the plaintiff. Mr. Van Vechten, contra. Per Curiam. The construction adopted by the commissioners has been too long settled to be now shaken. It is the ancient and original construction, and it corresponds with the other i courses and distances, as laid down on the map, and which we deem to be correct. The plaintiff is, therefore, entitled to judgment. Judgment for the plaintiff. 1 Cited in 13 Johns., 495. BAZEN x. ROGET. Lost Note Bond of Indemnity Payment Sec- ond Payment Voluntary Action on Bond. A note was lost or mislaid, and A, the maker, hav- ing paid the amount to B, the holder, took his bond of indemnity against the note, &c., and afterwards A, having a demand against B'f or money, B refused to pay, without first deducting the amount of the note, to which A consented and took the balance, and a receipt from B for the amount of the note as due, and afterwards brought an action against B, on his bond of indemnity. It was held that the sec- ond payment being voluntary on the part of A and no fraud alleged on the part of B, no action could be maintained against him on the bond. was an action of debt on an indemnifi- -L cation bond, dated the 31st March, 1797. 1. See Jackson, ex dem. Walton, v. Ogden, I Johns. Rep., 156. 88 SUPREME COURT, STATE OF NEW YORK. 1802 88*] The condition recited *that the plaintiff had given the defendant two promissory notes, one of which was dated the 30th August, 1796, for $74.28, and the other for $1,181.76, which notes had been lost or mislaid, and that the amount of them had been paid by the plaintiff to the defendant, who released the plaintiff from the same, and engaged to indemnify him, &c., against the said notes, and all actions, &c. It appeared that the plaintiff afterwards called on the defendant for money in his hands, belonging to the plaintiff, who refused to pay it over, without detaining out of it the sum of $74.28, on a note due to him from the plaintiff, and which was one of the notes referred to in the bond ; and the plaintiff consented to receive the balance, with that deduction, and the defend- ant paid the balance and gave a receipt, as fol- lows: "Received, New York, 26th July, 1797, of Thomas Bazen, $74 (which I have detained upon money due him), on account of a note dated 30th August, 1796, for $74.28, due me." A verdict was found for the plaintiff ; and a motion was now made to set aside the verdict, and for a new trial. Mr. Riggs for the defendant. Mr. Hiker, contra. Per Curiam. If the case rested on the bond alone, no doubt the plaintiff ought to have been indemnified against the payment of the note of $74, whether demanded by the defend- ant or any other person, to whose hands the note might have come ; but the plaintiff con- sented voluntarily, and after a full opportunity for consideration to allow the deduction of this note from the money due to him in the hands of the defendant, and at the same time 8O*] signed a receipt for the balance, *ac- knowledging the note, so deducted, to be due to the defendant. These were deliberate acts, and it does not appear that he made any pre- tension, at the time, that this note was not due to the defendant, nor of any advantage being taken by the defendant, on account of his sit- uation. These acts, without a more satisfac- tory explanation of the conduct of the parties on that occasion, ought to conclude the plaint- iff, and prevent a recovery on the bond in question. As no fraud is shown we cannot intend any. By paying the note a secdnd time, we must intend that the first payment was either a mistake, or that some composition took place between the parties. The last pay- ment was voluntary ; and the maxim is, wlenti non fit injuria. The verdict must be set aside, and a new trial granted. Motion granted. MORGAN v. WOOD WORTH. Promissory Note Demand of Second Indorser Notice to Prior Indorser Time. The second indoreer of a promissory note, when called upon by the holder to pay, in default of the maker, is bound to take up the note and give notice NOTE. Promissory note, notice of nonpayment, when to he given. See Bryden v. Bryden, 11 Johns., 187, and note in this edition. 628 immediately to the first indorser, and if he fails to give such notice as soon as he receives it from the Bolder, the preceding indorser is not liable to him. THIS was an action of assumpsit brought by the first indorsee against the first indorser of a promissory note. The note was drawn by Marvell Ellis, payable to the defendant or order, who indorsed it to the plaintiff. At the trial it appeared that the plaintiff had indorsed the note to John Atkinson before it became due, and that regular notice of non- payment was given to the plaintiff, as indorser, and the plaintiff was afterwards sued by At- kinson, and obliged to pay him the amount of the note. The plaintiff resided in Lansing- burgh, the defendant in Troy, and Atkinson in New York. Atkinson sent the note, which became due the 7th October, to his agent in Lansingburgh, some time before, who em- ployed a notary to demand payment of the note, and give the requisite notice to the indorsers, and the agent *as well as the [*9O plaintiff, supposed that due notice had been given by the notary, until informed by the defendant to the contrary, about the 20th October. The judge nonsuited the plaintiff, at the trial, with liberty to move the court to set aside the nonsuit, and for a new trial. Mr. Van Vechten for the plaintiff. Messrs. Hoffman and Hamilton, contra. Per Curiam. When the plaintiff, as second indorser, was called on to pay the note, after default of the maker, he ought to have taken up the note immediately, and have given im- mediate notice over to the defendant, the first indorser. By delaying until he was sued, he must suffer for his neglect. The defendant ought not to suffer for his laches or default. It is a settled rule that a notice is necessary to the first from the last indorser, as soon as he himself receives notice ; because he ought instantly to take up the note, and then he becomes the real holder. The motion must be denied. Motion denied. 1 Cited in 6 Cow., 309; 34 N. Y., 132 ; 25 Barb., 140. THOMAS t>. STRIKER. Discharge in Insolvency Judgment of Non Pros Prior thereto Costs Debt Liquidated. Where a judgment of non pros on a certiorari from a justice's court was obtained in October Term, and the plaintiff in error was afterwards, the 7th No- vember, discharged, under the Insolvent Act, it was held that the judgment for costs, in October Term, constituted a debt liquidated, or capable of liquida- tion, at that time, and was discharged by the cer- tificate. MR. WHITING moved to set aside a fieri facias, on an affidavit, stating that on the 7th November, 1801, the defendant was duly discharged under the Insolvent Act. *It [*t)l 1. See Morgan v. Van Ingen, 2 Johns. Rep., 204 ; Buyley on Bills, 83 Chitty, 3d edit., 16, 167 ; Kyd., 186 ; Pothier, Trait, du Change, 79, 153. JOHNSON'S CASES, 3. 1802 RUSSELL v. BALL. 91 appeared that a judgment of non pros had been given on a certiorari from the judgment of the justice's court, in October Term, prior to the 7th November, 1801 ; and the only question was, whether the plaintiff was entitled to a fieri facias for the costs arising on the judgment of iion pros entered at the last October Term. Mr. 8. Jones, Jun., contra. Per Curiam. It is enough if the debt was liquidated, or capable of being liquidated, at the time of the assignment, and before the dis- charge. Here the judgment was in October Term, and the costs capable of liquidation at that time. We must intend that the assign- ment was cotemporaneous with the discharge. Motion granted. 1 RUSSEL . BALL. Change of Venue Amended Declaration Plea to Time. Where the twenty days for pleading are expired, | when the venue is changed the defendant must j plead instanter to the amended declaration ; and if the twenty days are not out, he ia entitled only to the remaining days within which to plead to the new declaration. MR. WHITING, for the defendant, moved to set aside the default and judgment entered in this cause, for irregularity. 1. But see Cone v. Whitaker, 3 Johns. Cases, 380, I 381, and note. See also Warne v. Constant, 5 Johns. Rep., 3*5. JOHNSON'S CASES, 3. It appeared that the plaintiff filed his dec- laration, and delivered a copy thereof to the defendant's attorney, in January Term, 1840. In April Term following, on motion of the defendant, the venue was changed from West- Chester to Columbia County. On the 28th July, 1801, the plaintiff filed a new declaration, with the alteration of the venue only, and served a copy on the defendant's attorney ; and on the first of August entered a default for want of a plea. The defendant's attorney swore *that he did not know of the subsequent [*9U proceedings until this term ; that he supposed the defendant was entitled to twenty days to plead to the amended declaration, and that the defendant had a defense on the merits. Mr. Woodworth, contra. Per Curiam. The defendant's attorney was guilty of a laches, in not pleading instanter to the new declaration ; for if the rule for plead- ing has expired when the venue is changed, then the defendant must plead forthwith to the amended declaration. If the twenty days are not out, he has only the remaining days within which to plead. But as in this case the attor- ney acted under a mistake as to the practice, and swears to merits, we grant the motion, on payment of costs. Motion granted.* 1. See Burrows v. Hillhouse, 6 Johns. Rep., 133. 629 [END OP JANUARY TERM.] CASES ADJUDftED SUPREME COURT OF JUDICATURE OF THE STATE OF NEW YORK APRIL TKRM, 18O2. 93*] *HERBERT r>. HALLETT. 1. Marine Insurance On Freight Stranding Return Unlading Loss of Freight Neg- ligence Right to Recover. 2. Id. Injury Repair Continuation of Voyage. 3. Engage- ment* of Insurer of Freight. Insurance on freight from New York to Havana. "The vessel, in a gale of wind, was stranded at Sandy Hook, but in three or four days returned to New York, and the cargo, which was unladen and con- -siderably damaged, was also brought back to New York, and delivered to the different shippers. The vessel was repaired in a fortnight, at the expense of about $120, and the plaintiff soon after sent her on -a different voyage. It was held that the insured had no right to recover, as he ought to have insisted on carrying on the goods, so as to entitle himself to the freight; and having lost the freight by his negligence or folly, the insurers were not liable. If the ship be injured by the perils of the sea, but capable of being repaired in a reasonable time, the owner ought to repair her and continue the voyage, so as to claim his freight. If the ship be in a ca- pacity to proceed on her voyage, and the goods are damaged, the owner will be entitled to his freight, if he offers to carry them on, unless the goods are physically destroyed. Citation 2 Burr., 887. THIS was an action on a policy of insurance on freight of goods on board the brig Eliza, from New York to tjie Havana. The freight was valued at $2,200. The Eliza sailed on the voyage about the 20th of January, 1800, and having anchored in a small bay near Sandy Hook, was driven on shore, in a gale of wind. The cargo was taken out by the plaint- iff and brought back to New York. The brig was also brought back, about the third or fourth day after the accident. About two or three weeks from the time she first sailed, she was sent to a ship yard to be repaired ; and, in about two weeks after, she was repaired, at the expense of 44 16s, but 94*] *a much larger sum would not have been sufficient to put the hull and spars in as good repair as when she sailed. The plaintiff soon after proceeded in the vessel, on a different voyage. There was no proof of an abandon- ment by the plaintiff. The vesssel was fully laden when she sailed. NOTE. Marine insurance on freight. See note to Abbott v. Sebor, supra, 39. JOHNSON'S CASES, 3. Four bills of lading were produced at the trial: 1. For the plaintiff's own property, contain- ing, among other things, 22,000 feet of lumber, some provisions, wine, 12 casks of porter, shocks, 35 casks of herrings, and 40 casks of bread. There was no invoice, or proof of the value of the articles, or what became of them, nor what was the proportion of the freight of them. It was, however, proved that the casks of porter were stove and some bottles broke, and that the shocks were broken. 2. For John Hughes's shipment of articles of different kinds (fish, wine, and raisins), the invoice of which was about $900, and the freight marked on it was $345. It was proved that great part of the fish and raisins were spoiled and destroyed, and that part of the cargo belonging to Hughes was abandoned to the underwriters and sold at auction, for their benefit, for about $300. 3. For 14 barrels of pork ; but there was no account of the value, nor what became of them, nor of the amount of the freight. 4. For onions to the value of $70, which on their return to New York were not worth the cartage. It was the opinion of the shipper of the onions, who was acquainted with the cargo before the brig sailed, and who received the goods into his store on their return, that most of the cargo was much damaged, and the voy- age so broken up as not to be worth pursuing. On these facts, the jury found a verdict for the defendant. A motion was made for a new trial, on the ground that *the plaintiff was entitled to [*95 recover either a total or an average loss. Mr. Hopkins for the plaintiff. Messrs. Pendleton and Hamilton, contra. RADCMFF, J. A motion has been made for a new trial, and the general question is, Whether the plaintiff be entitled to recover any, and what part of the freight insured. An insurer on freight engages that it shall be in the power of the insured to earn his freight, that is that the subjects necessary to the earning of freight, the ship and cargo, shall not be injured by any of the perils in- sured against, so that no freight can be earned 631 95 SUPREME COURT, STATE OP NEW YORK. 1802" If the ship and cargo both remain in a state to continue the voyage, it is in his power to earn freight, and he ought to proceed. If by any injuries, either to the ship or cargo, the voy- age be so broken up that no freight can be earned, the plaintiff ought to recover a total or partial loss, as he may or may not have earned freight, pro rata itineris. If the injury be confined to the ship, and that can be repaired in a reasonable time, it is the duty of the owner to make such repairs, and to continue the voyage and earn his freight. On the other hand, if the injury be sustained by the goods alone, and the ship be in a capacity to proceed, the owner of the ship will still be entitled to perform the voyage and recover his freight, unless the goods be physi- cally destroyed. if these principles be correct, the first in- quiry in the present case is, whether the ship was in a capacity to proceed, or whether the injury was such as might have been repaired in a reasonable time, in relation to the intended voyage, and at a reasonable expense. The circumstance of the ship being obliged to re- turn to the port from whence she sailed, does not 96*] alter the application of *this rule. The voyage had actually commenced on which the right to freight attached, and the return to New York was the same as if she had been driven into any other port. It appears that she was, in fact, repaired at a moderate ex- pense within a fortnight, and proceeded on another voyage. If the goods were in a con- dition to be reshipped, a detention for that period would not, in my opinion, be sufficient to justify an abandonment of the voyage. It was still incumbent on the owner to use due diligence in endeavoring to repair her, instead of which it appears that he suffered the vessel to remain two or three weeks without taking any measure for that purpose, and, for aught we know, without any wish or idea of pursu- ing the voyage. On account of the ship, there- fore, I think there was not such an impediment as would authorize an abandonment of the voyage, and prevent her from earning freight. 2. With regard to the cargo its total value, or the degree of injury it received, cannot be ascertained from anything stated in the case. The lumber could not have been injured, but all the other articles were perishable in their nature, and probably so much damaged as, according to one of the witnesses, to render the voyage, on their account, not worth pur- suing. Still they physically remained, and were either retained by the shippers, or aban-' doned to the underwriters and sold for their benefit. As between the owner of the ship and the proprietor of the goods, there was not, therefore, a total loss. Between them no loss is total where the property remains, or any part is saved, and taken by the owner to his own use. It requires an absolute destruction of the subject to render the loss, in this re- spect, total. That not being the case, with regard to any of the property, in this instance, and the ship being in a condition to be repair- ed, and the plaintiff having a right so to do, and to perform the voyage, he ought to have proceeded, and the owners had no right to 97*] demand of him the restoration of *the goods without payment of the freight. By j delivering up the property to them he relin- I quished his title to freight, as against the de- fendants, and cannot call on them for it. It is, therefore, unnecessary to decide wheth- er an abandonment of the freight, under the circumstances of the present case, was req- uisite. It is equally unnecessary to examine whether any freight was earned, pro rata itin- eris. The latter is now a question between the plaintiff and the shippers only. If any part j was earned and has not been relinquished, he has his remedy against them. It is not a claim against the underwriters, who, in either case, are not liable for it. I am, however, inclined to think that although the right to freight is deemed to commence from the loading of the goods on board, it is a defeasible right, de- pending on the success of the voyage; and that, in this case, no part of the iter "being per- formed, to any beneficial purpose, no freight was earned, whether we regard the distance or the price as determining the rule. Deciding the case on these principles, the correctness of the judge's charge at the trial is not material to be further considered.^; It was more favorable to the plaintiff than the result of my opinion, and the jury having found for the defendant, I think their verdict ought not to be disturbed. KENT, J. I am of opinion that the plaintiff" has not shown himself entitled to a total loss, or facts sufficient to disturb the verdict. He must show that he was prevented, by one of the perils insured against, from completing his contract for carrying the cargo from New York to the Havana. But he has not sufficiently shown this. He lost the freight of the voyage- more by his own negligence or folly than by the perils of the sea. The brig was not so dis- abled but that, with a moderate repair, she could have performed the voyage. The plaint- iff *delayed a fortnight before he sent [*98- her to be repaired. She was then repaired, in a fortnight, for 44 11, and soon proceeded on a different voyage. If a freighted ship becomes disabledjluring her voyage by a peril insured against, the master has his option of two things ; either to- refit, in a reasonable time, or to hire another ship to carry the goods ; and if he does this, or if the shipper will not consent to it, he will be entitled to the whole freight. If be does neither, he can, at best, recover only his freight pro rata of the owner of the cargo. This was. a point settled in the case of Lvke v. Lydc (2' Burr., 887), and by the authorities there cited. What is convenient time to refit must de- pend upon the particular voyage to be perform- ed, and the time and place of the accident. No definite time is prescribed, nor does the matter appear to be susceptible of any definite rule. Under the circumstances of the present case I cannot undertake to say that two weeks was an unreasonable time, and that the verdict ought, for that reason, to be set aside. If the plaintiff neglected to refit, in order to entitle himself to full freight against the shipper of the goods, he ought not to recover it of the insurer. The vessel might have earned the freight, notwithstanding the acci- dent at the Hook, if the plaintiff had made use of due diligence in repairing her. The JOHNSON'S CASES, 3. 1802 JACKSON, EX DEM. JONES ET AL., v. BRINCKERHOFF. 98" vessel was refitted at a small expense, and in condition to go to sea on another voyage. We must presume she might have gone upon the voyage insured with the same facility and probably with much greater promptness. If the plaintiff, with so slight an injury to his vessel, and after having equipped and dis- patched her so soon on another voyage, could recover his full freight in this case, his vessel would be earning the freight of two voyages, nearly in as short a time as she could really have performed one. It would be a tempta- tion to infinite abuse and fraud to allow a plaintiff, under such circumstances, to recover 99*] a total *freight upon his policy. It would be allowing him a premium for his negligence in not refitting and performing the voyage in- sured. It appears to me that the same peril, and to the same extent, ought to exist to au- thorize a recovery on a policy on freight as on a policy on the ship ; and that before the in- sured can recover, in either case, as for a total loss, the ship must be rendered unable to per- form the voyage. A slight accident, such as the splitting of a sail, or loss of a rudder, soon after the vessel breaks ground, and when those accidents can be easily and speedily re- paired, would not authorize a demand for a total loss. If, in a like case, he could not re- cover a total loss on a policy on the ship, I see no good reason why there should be a recov- ery for a total loss of freight. It would in- volve the absurdity of assuming, in the one case, that the voyage was lost by the peril, and, in the other case, that it was not lost. If the policy had been upon the ship, there would not have been a pretense for a total loss ; and I am of opinion there is no ground for a claim of total loss of freight. I have put out of view the condition of the cargo or any questions of fraud that may have been suggested in respect to it. There is no doubt but that the vessel was interrupted in her voyage, and that the accident arose with- out any fault to be imputed to the master. The person who lets his ship to hire is not thereby an insurer of the cargo ; and I have, therefore, supposed the present question not to be influenced by any considerations result- ing from the damage to the cargo. The next question is, whether the plaintiff is not entitled to an average loss, as his vessel was deprived, by a peril insured against, of the opportunity of earning freight, at least, for a few days. It is said (Luke v. Lyde) that a plaintiff, in such a case, is not obliged to re- fit, to entitle himself to a ratable freight from the shippers. If so, then whatever freight he was entitle to from them we are to intend he 1 OO*] has received, as he held *the lien for it in his own hands. With respect to the freight for the residue of the voyage, I can easily perceive that a plaintiff, in a case like the pres- ent, may be justly entitled to the indemnity from the insurer for the loss of freight during the time the vessel was necessarily interrupted in the voyage. But he cannot justly be en- titled to freight beyond that particular time, since his neglect to repair and proceed in the voyage when repair was so practicable, ought to be deemed a waiver of any further com- pensation. The plaintiff's claim upon the defendant for JOHNSON'S CASES, 3. ratable freight, is reduced, therefore, to t he- time the vessel ceased to earn freight by rea- son of the peril ; and the great difficulty upon this point is that the case contains no just and accurate data by which this average freight can be ascertained. From this omission to- f urnish the requisite proof, and the neglect to repair or offer to go on, I am, upon the whole, of opinion that the plaintiff is not entitled to his motion for a new trial. LEWIS, Ch. J., and LIVINGSTON, J., were of the same opinion. THOMPSON, J., not having heard the argu- ment, gave no opinion. Judgment far the defendant. 1 Cited in 15 Johns., 19 ; 18 Johns., 210 : 44 N. Y., 441 ; 15 Barb., 54 ; 2 Duer, 217 ; Abb. Adm., 505 ; 1 Story, * JACKSON, ex dem. JONES, ET AL. [*1O1 v. BRINCKERHOFF. Adverse Possession Conveyance Void Grant- or's Title not Extinguished Estoppel Matter in pais Statute of Uses. By the common law a conveyance of land by a person, against whom there is an adverse possession at the time, to a third person, is void ; but the title of the grantor is not thereby extinguished or de- vested ; nor will such conveyance inure, by way of estoppel, for the benefit of the defendant in pos- session. A stranger or third person cannot avail himself of an estoppel by a mere writing or a matter in pain. No person can be technically estopped by a con- veyance under the statute of uses. Citations Co. Litt., 365 ; Co. Litt., 852; Cora. Dig., 80, 81 ; Gilb. on Uses and Trusts, 100, 101 ; Preem. Rep., 475, case 651 ; Co. Litt., 214 a ; Plowd., 88 ; Cro. Car., 484 ; 2 Co., 56 a. was an action of ejectment brought to J- recover 500 acres of lot No. 85, in the town of Aurelius in the County of Onondaga. On the trial the plaintiff gave in evidence a patent for the lot granted to Jacob Jones, a soldier in the New York line of this State, and proved that the said Jacob Jones died about fourteen years since, without issue, leav- ing six brothers and five sister, his heirs-at- law ; that Phrebe, one of the sisters, married Isaac Smith, who, together with her husband, on the 10th September, 1796, conveyed, or ex- ecuted a deed purporting to convey, one sixth part of the lot in question to Peter Talman, one of the lessors ; that Margaret, another of the sisters, marrried Thomas Ellison, who, with her husband, on the 10th November, 1796, in like manner conveyed one sixth part of the same lot to Talman'; that the defend- ant was in possession of the premises, and had been so from the 10th June, 1795, claiming them as his own. 1. See Griswold v. The New York Insurance Co.. 1 Johns. Rep., 204, and S. C., 3 Johns. Rep., 321. NOTE. Conveyance of land held adversely. See Whitaker v. Cone, 2 Johns. Cas., 58, and note, 101 SUPREME COURT, STATE OF NEW YORK. 1802 Upon this evidence the defendant moved for a nonsuit, on the ground that the deeds to Tal- man were executed while the defendant was in possession, holding the premises adversely, and were, therefore, illegal and void, and that they operated to extinguish the claim of the gantors, and would inure to the benefit of the defendant, who was in possession. This motion was overruled by the judge ; and the defendant proved that previous to the execu- tion of the above-mentioned deed, from Isaac Smith and his wife to Peter Talman, the same Isaac Smith had excuted another deed to one Abraham Jones, releasing to him all his right and title to the real and personal estate of his 1O2*] *brother-in-law, the said Jacob Jones, deceased. Several other deeds were also read iii evidence on the part of the defendant, of which it is unnecessary to take notice, as they did not present any question between the par- ties, except what arose from the consideration that the defendant claimed to hold the prem- ises under them, and under the deed from Isaac Smith, last mentioned, by all of which he derived his title from the same source as the plaintiff, that is, from the heirs of the sol- dier who was the original patentee. The plaintiff, at the trial, objected to the in- troduction of the last-mentioned deed from Smith to Jones, because it had not been depos- ited in the office of the clerk of the County of Albany, pursuant to the statute of the 8th January, 1794, and was therefore void, as against P. Talman, the subsequent purchaser, for a valuable consideration. The judge over- ruled this objection, on the ground that the defendant was in possession of the prem- ises, claiming them as his own, at the time of executing the deed to Talman, which possession was sufficient notice to every subsequent purchaser, and took the case out of the statute. The propriety of this opinion was not controverted on the argument, nor made a question in the cause. The judge, at the trial, charged the jury that the plaintiff was entitled to recover one fourth part of the premises, and they found a verdict accord- ingly. A motion was made to set aside the verdict, and for a new trial. Mr. Van Vechten for the defendant. Mr. Emott for the plaintiff. RADCLIFF, J. The question litigated between the parties respects the validity or operation of the deed from Ellison and his wife to Talman. 1O3*] It is contended, *on the principles on which the motion for a nonsuit was found- ed, that this deed, being executed while the defendant was in possession of the premises, claiming them in his own right, was not only illegal and void, but estops Ellison and his wife from setting up their title against any person, and extinguishes it forever. Admitting that the possession of the defend- ant was adverse to the title of the plaintiff, which, upon the whole evidence, I think, can- not be maintained, still the doctrine of estop- pels can have no application to the case. Es- toppels are said to be odious, and are not favored in law. (Co. Litt., 365.) They are extended I only to certain specific cases, and are subject to precise rules. They are usually distin- guished into three kinds ; by matter of rec- ord, by writing, and in pais. (Co. Litt., 852.) Strangers as well as parties and privies may generally take advantage of estoppels by matter of record ; but, I believe, in no instance can strangers avail themselves of an estoppel by mere writing, or in pats. (Com. Dig., 80, 81 ; Gilb. Uses and Trusts, 100, 101.) Regularly, an estoppel must be reciprocal, and bind both parties ; and it is upon this principle of reci- procity that it is confined in its operation to parties and to privies in blood, or estate only. It extends no farther, in any case, except where it is created by matter of record. In the pres- ent instance, therefore, the defendant cannot protect himself on this ground, for, clearly, he is neither a party to the deed in question nor a privy in blood or estate. Although the deed from Ellison and his wife be considered illegal, and therefore void, it does not estop them as against the present defendant from asserting their previous title. Neither can it annihilate or extinguish that title. The general maxim is, dormit (diquando jus, moritur nunquam. However they may be concluded as between them and other parties, their title cannot be extinct, and must prevail against all who cannot rebut their claim by a technical estoppel. The title, under such cir- cumstances, therefore, remains, and [*1O4 is not forfeited. If it were, the grantors would suffer a double forfeiture ; for by the statute of 32 Hen. VIII., adopted here, against buying and selling pretended titles, they are already subjected to a forfeiture of the full value in damages. On another ground, I think this defense equally untenable. The conveyance by Ellison and his wife is founded on the statute of uses, and I conceive it to be a principle that no party is technically estopped by any such convey- ance. A conveyance in pursuance of that statute operates upon the actual right of the grantor only. It transfers that right, what- ever it may be, where he is in a capacity to convey, and it extends no farther. It is not subject to all the rules, built on feudal princi- ples, which apply to conveyances at common law. Thus it is held not to work any discon- tinuance or forfeiture, as conveyances by par- ticular tenants in certain cases are held to do : and from the principle that its operation is commensurate with the actual right of the party, and is governed by it, I think it follows that it cannot be affected by the doctrine of es- toppels. It was accordingly so held, at an early period, by Saunders, J. (Freem. Rep., 475., case 651.) On these general grounds, I am of opinion that the verdict was proper, and that there ought to be judgment for the plaintiff. KENT, J. A motion was made, on the part of the defendant, for a new trial, on two grounds : 1st. That the deeds to Talman were void in respect to him, by reason of an adverse pos- session at the time. 2d. That they inure, however, by way of extinguishment and in favor of the defendant i in possession. JOHNSON'S CASES, 8- 1802 GILBERT v. THE COLUMBIA TURNPIKE COMPANY. 104 1. There is no doubt but that by the common law (Co. Litt., 214 a; Plowd., 88) a convey- ance to a third person of lauds held adversely at the time, was void, as an act of main- tenance. Before a person could convey 1O5*] *lands in the adverse possession of another, he was under the necessity of reducing his right into possession by suit. This rule of the common law has never been altered. It is the law still, and, consequently, the deeds to Talman transferred no right to him, as the de- fendant was, at the time, in possession, claim- ing the lands as his own. The right of the grantors was reduced to a mere right of entry or an action. 2. The second question is, whether, in conse- quence of those conveyances, the right of Smith and Ellison, and their wives, or either of them, was extinguished for the benefit of the defendant. I am satisfied, upon a consideration of the question, that no such conclusion results. It would be a conclusion rigorous and highly in- convenient with us, considering the facility with which real property circulates, and the distance at which it is often placed from the owner. This was a bonafide sale on the part of the heirs. It was not a sale of a pretended title, as a matter of speculation, but of a valid right. If the position contended for by the defendant was correct there would have been no need of the statute punishment for selling a pretended title, which inflicts on the seller a forfeiture of the value of the lands sold. This doctrine would have been equally effectual by forfeiting the land to the possessor, instead of a common informer. I am not for extending the punishment contained in the act against buying or selling pretended titles beyond its express provisions. Although, in judgment of law, the possession of land may be notice to the owner, yet as a matter of fact, it is very probable, considering how thinly scattered the settlements are in a great part of the country, that lands may be sold by the true owner, un- conscious of any adverse possession. In the case of Fitzlwrbert v. Fitzhtrbert (Cro. Car. , 484), one point moved was, that if A after a dis- seisin, and not knowing of it, levy a fine to a stranger, whether that tine would bar his right, 1O6*] and inure to *the benefit of the dis- seisor, according to the doctrine in Buckler's case. (2 Co., 56, a.) The court gave no opin- ion, but two of the judges, feeling the mis- chievous consequences of the doctrine, agreed that the fine should not inure to the benefit of the disseisor, but to the use of the conisor himself ; for otherwise, a disseisin, being se- cret, may be the cause of disinherison of any- one who intends to levy a fine for his own benefit. The mischiefs apprehended at that time in England would, if the defendant's doc- trine be good, be felt here with increased force, owing to the peculiar circumstances of our country which I have suggested. It would become a serious check upon the necessary transfer of real property, or would lead to great fraud and injustice*. I am clearly, there- fore, of opinion that the defendant ought to take nothing by his motion. LIVINGSTON, J., and LEWIS, Ch, J., were of the same opinion. JOHNSON'S CASES, 3. THOMPSON, J., not having heard the argu- ment of the cause, gave no opinion. Motion denied. 1 Cited in 1 Johns., 163; 9 Wend., 528; 2 Hill, 529; 13 N. Y., 638 ; 10 Barb., 107, 435 ; 24 Barb., 57 ; 32 Barb., 289 ; 4 Duer, 593 ; 60 Indiana, 485. *GILBERT [*1O7 THE COLUMBIA TURNPIKE COMPANY. 1. Taking Lands for Public Uses Inquisition Omission to state Disagreement between Owner and Defendant. 2. Statute affecting Private Property Proceedings Under. Where an inquisition taken under the second sec- tion of the act amending the Act to establish the The Columbia Turnpike Company, passed March 28, 1800 (sess. 23), omitted to state a disagreement be- tween the owner of the lands mentioned, and the company, and that the judge who appointed the commissioners was not interested, &c., it was held defective, and quashed. Where a special power is granted by statute affect- ing the property of individuals, it must be strictly pursued ; and it must appear, on the face of the proceedings, that the directions of the statute have been strictly observed. Citations-4 Burr., 2244 ; Cowp., 26 ; 1 Burr., 377 ; 7 Term R., 363. THIS was an application by E. Gilbert to set aside an inquisition, found by three commissioners appointed under the 2d section of the act amending the Act establishing the Columbia Turnpike Company, passed 28th March, 1800. It is enacted by that section that in case of disagreement between the com- pany and any owners of lands, over which the turnpike may be carried, it shall be lawful for the president and directors to apply to one of the judges or assistant justices of the Court of Common Pleas, for the County of Colum- bia, not interested in said road, who it required to appoint, in writing, three commissioners, being freeholders of the. county, and who shall not be inhabitants of any of the towns through which the said road shall pass, which commis- sioners shall name a day for meeting on the said lands to perform the duty required of them, and also to give notice to the owners of their appointment, and of the day of such meeting, being at least four days from the time of giving such notice, &c., and that each of the said commissioners, before he proceed to execute the said trust, shall take an oath pre- scribed by the said act, and shall then assess the damages, and make an inquisition, &c. The proceedings in this case were brought before the court by certiorari, and the inquisi- tion taken before the three commissioners re- cited that John Tryon, one of the judges of the Court of Common Pleas, had. by writing, under his hand, pursuant to the said act, appointed three commissioners for the pur- poses specified in the act ; that they were free- holders of the said county ; that they had ap- 1. In Williams v. Jackson, ex dern.Tibbetts ctal.. in the Court of Errors, 5 Johns. Rep., 300, the decis- ion in the above cause was recognized and sanc- tioned. 63 r> 107 SUPKEMK COURT, STATE OP NEW YORK. 180* pointed a day of meeting on the lands in ques- tion ; that notice of such meeting was given to the owners, at least four days before such 1O8*] meeting ; that they *had taken the oath, as prescribed in the act, and viewed the premises, and thereupon they proceeded to make the assessment and the inquisition above mentioned. But it did not appear from any j part of the proceedings that there was any dis- j agreement between the company and the own- ers of the lands mentioned as to the damages sustained, or that the judge, who appointed the commissioners was not interested in the road ; or that the commissioners so appointed were not inhabitants of any of the towns through which the road passed ; or that the commissioners gave notice in writing to the owners of the time and place of meeting to assess the damages. On these objections, amongst others, it was moved to quash the inquisition. Messrs. Champlin and Van Vechten for the plaintiff. Mr. Spencer, contra. Per Curiam. This is the case of a special power granted by statute, and affecting the property of individuals, which ought to be strictly pursued, and appear to be pursued, on the face of the proceedings. (4 Burr., 2244; Cowp., 26; 1 Burr., 377; 7 Term Rep., 363.) This is an established rule, and it is important that it should be maintained ; especially, in cases which so materially interfere with pri- vate rights. It does not appear that any dis- agreement existed between the parties, or, that in consequence of any disagreement, the com- pany applied to a judge, both of which were requisite, to authorize the appointment of com- missioners. The disagreement and consequent application, were the foundation of the whole proceedings, and without them the judge could have no jurisdiction in the case. As they do not appear, we are not to intend they existed. The judge, in the case before us, is required bv the act to have no interest in the road ; ana it is also required that the 1OO*] Commissioners shall not be inhabit- ants of any of the towns through which the road shall pass. Neither of these points, which are essential to an important result, ap- pear to have been complied with, and both are indispensable. A notice to the owners, it is true, is alleged to have been given, but it is not stated to have been in writing. A notice in legal proceedings means a written notice, and we think the act itself, in this instance, contemplates such a notice. In certain cases it directs the notice to be left at the dwelling- house of the party. This must intend a writ- ten notice. On these grounds, without determining the other objections, we are of opinion that the inquisition ought to be set aside. Motion granted. Distinguished 10 Wend., 174. Cited in 11 Wend., 94; 15 Wend., 429; 20 Wend., 187 ; 36 Wend., 500 ; 5 Hill, 104 ; 5 N. Y., 440 ; 15 N. ., 189; TIN. Y., 317; 72 N. Y., 16; 19 Barb., 539; 53 Barb., 411 ; 67 Barb., 391 ; 35 How., 196 ; 38 Mich., 141. 036 JACKSON, ex dem. GANSEVOORT, ET AI.. v. LUNN. 1. Grant by letters Patent Acts of Ownership by Another and His Heirs Time Grant Presumed Entry on Part Claim of Whole Presumptions. 2. Marriage with AUen American Revolution Vested Rights Treaty. 3. Alien Purchase Title Descent Office Found Division of Empire. A tract of land was granted, by letters patent, to- A in 1735, which was surveyed and laid out into lots. In 1736 B executed leases for several lots to different persons for lives, reserving- rent, in which he assert- ed his claim to the whole tract, and exercised va- rious acts of ownership, until his death in 1752, and his heirs also gave leases of some of the lots In 1767, and his title and that of his heirs continued to be acknowledged by the tenants, and remained undis- puted until after the year 1783. In an action of ejectment brought by tne heirs of B against C, who had been in possession since 1772, it was held that a grant from the original patentees to B was to be presumed ; that entry by him into part, with a claim to the whole, was to be considered as an entry into the whole ; and that the entry of C was in subordi- nation to the title of B. The American Revolution worked no forfeiture of previously vested rights in lands. Where a Brit- ish subject died seized of lands in this State in 1753, leaving daughters in England, who married British subjects, and neither they or their wives were Amer- ican citizens, it was held that the husbands of the heiresses might be joined in a demise with their wives, in order to maintain an action of ejectment ; and that even if the marriages were subsequent to the American Revolution, such marriages with aliens would not impair the rights of the wives, nor Srevent the full enjoyment of the property, accord- ig to the laws of the marriage state; especially, after the provision contained in the ninth article of the Treaty of Amity and Commerce with Great Britian, of the 9th November, 1794. Though in case of a purchase the law will recog- nize the title of an alien in lands, until office found: yet in case of a descent the law takes no notice of an alien heir, on whom, therefore, the inheritance is not cast. But where the title to land in this State was acquired by a British subject, prior to the American Revolution, it seems that the right of such British subject to transmit the same, by de- scent, to an heir, in esse, at the time of the Revolu- tion, continued unaltered and unimpaired ; the case of a revolution or division of an empire being an exception to the general rule of law on this subject. The objection of alienism is not to be favored. Citations- 2 Johns. Cas., 29; 5 Co., 53; 1 Bac., new ed., 133, 134 ; Pow. on Dev., 317 ; 7 Term R., 398 ; 3 Johns. Cas., 322; 3 Term R., 155; 12 Co., 5; Bull., 74; Cowp., 216, 217 ; 3 Johns.i-Cas., 118 ; Co. Litt., 252 b ; Co. Litt., 15 b. ; 12 Co., 5 ; Cowp., 102, 111, 215 ; 3 Term R., 157, 158, 159; Bull. N. P., .4 : 2 Johns. Cas.. 29; Laws of U. S., Vol. II., p. 476 ; 7 Co. 1, 16, a. ; 2 Johns. Cas., 399 ; Co. Litt., 2 b, and Harg., note 5 ; Plowd., 229 b.; 7 Co. 35 a.; Com. Dig., tit. Alien, ch. 1 ; 5 Co., 52 b. ; 1 Leon., 47 ; 4 Leon., 82 ; 1 Vent., 417 ; 1 Bos. & Pull., 48; 7 Term R., 398; Co. Litt., 8 a.; 7 Co.; 27 b. THIS was an action of ejectment of lands in Montgomery County. The cause was NOTE. Aliens, their rights as to real property. By purchase an alien can take and hold lands until office found. Jackson v. Beach, 1 Johns. Cas., 399, and note. B)l descent at common law an alien cannot take lands. At his decease, intestate, his lands vest in the State without office found. He has no inherit- able blood. Fairfax v. Hunter, 7 Cranch. 603, 619 ; Slater v. Nason, 15 Pick., 345; Farrar v. Dean, 24 Mo., 16 ; Levy v. McCartee, 6 Pet., 102 ; Movers v. White, 6 Johns. Ch., 360. See Jackson v. Adams, 7 Wend., 367 : Orrv. Hodg- son, 4 Wheat., 453: People v. Conklin, 2 Hill, 67; Jackson v. Jackson, 7 Johns., 314. See, also, N. Y. Rev. Stat. (7th ed.), p. 2165, et seq., and special stat- utes of other States. JOHNSON'S CASES, 3. 1802 JACKSON, EX DEM. GANSEVOORT, ET AL. v. LUNN. 110 HO*] tried, before Kent, J., at *the Mont- gomery Circuit, in June, 1801. On the 29th August, 1735, letters patent were granted to Charles Williams, John Wallis, Thomas Cooper, Thomas Cockerill, Peter Bard, Will- iam Crosby, and B. Bard, for 14,000 acres of land, including the premises in question ; and the land was soon after surveyed and laid out into lots. In 1736, Sir Peter Warren executed eleven leases for lots, parcel of the tract, to different persons, for lives, reserving rent ; and the lessees entered and enjoyed the de- mised premises. In the leases Sir Peter War- ren asserted his claim to the whole tract. In 1737 and 1742 Sir Peter Warren paid the quit- rent for the whole lands. He died in 1752, leaving three daughters, one of whom, Ann, married Lord Southampton, and Charlotte, another, married Lord Abingdon, and Susan- nah, the third, married General Skinner, and died in the autumn of 1776, leaving an infant daughter, who afterwards married Lord Gage. In 1767 Oliver Delancey, an attorney for the three daughters and co-heiresses, executed two other leases for two other lots to other settlers for twenty-one years, reserving rent. The co-heiresses and their husbands have been from their birth, and still are, British subjects, and not American citizens. There were, at the commencement of the American war, about one hundred settlers on the lands, who, after entry, had agreed with the agent of the co- heiresses for leases, and at least two thirds of the lands have since been, and are now, held under title from the co-heiresses. Until some- time since the American war the settlers on the lands generally acknowledged the title in the co-heiresses of Sir Peter Warren, and it was not disputed by any of them until some time after the late war, and prior to the com- mencement of the present suit. The defendant proved that he had been in possession of the premises for twenty-nine years. The demises in the declaration of each husband and wife were joint demises. The jury, under the direction of the judge, found 1 1 1*] *a verdict for the plaintiff. A case was reserved for the opinion of the court, which, it was agreed, either party might turn into a special verdict. Jfr. Van Vechten for the plaintiff. Messre. Cady and Gold, contra. RADCLIFF, ./. The objections made at the trial, and raised by the defendant, on the ar- gument, are, 1. That if any title was shown by the plaint- iff it was proved to exist in such of the lessors only as were British subjects, and therefore aliens, and incapable of recovering or holding any real property in this State. 2. That the patent of Charles Williams and others, produced by the plaintiff himself, showed the right, if any existed, to be vested in persons from whom the plaintiff had not -deduced any title. 3. That admitting these objections to be re- moved, there was not sufficient evidence of possession in Sir P. Warren and his represen- tatives to support the plaintiff's title to re- cover. The objection, founded on the alienism of JOHNSON'S CASES, 3. all the lessors except one, we have, in effect, overruled in the case of Kelly v. Harinon (2 Johns. Cases, 29). In that case, we adopted the general principle that a dismemberment of empire ought in no instance to affect the previous rights of individuals with regard to property. This principle alone would be suffi- cient to protect the rights of the lessors, who were British subjects, which were acquired at the period of the Revolution. But their rights, I think, are also confirmed by the Treaty of 1794. the 9th article of which provides that the subjects and citizens of both nations, who hold lands in the territories of the other, shall continue to hold them according to the nature of their estates and titles therein, and may grant, sell, and devise the same, as if they were natives; and that neither *they nor [*112 their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens. This treaty proceeds on the general principle already stated, for it contemplates the subjects and citizens of both countries, as actually holding lands in the other, and it declares that, in this respect, they shall be regarded as natives, and not as aliens. If before this treaty there was room for doubt whether such titles could be transmitted by descent, as well as by purchase, that doubt must be removed, for it provides that neither the persons so holding, nor their heirs or assigns shall, in that respect, be treated as aliens. This provision being produced by the actual state of things, resulting from the polit- ical separation of the two countries, and in- tended to confirm or restore the rights of individuals, as they previously existed, ought to receive a liberal construction, and be ex- tended to all persons actually holding lands, or who, if the Revolution had never happened, would be entitled to hold them, by descent or otherwise. With this interpretation, the death of General Skinner and his wife, although stated to be in the fall of 1776, subsequent to the Declaration of Independence, could not deprive their infant daughter from inheriting the lands in question. On the general question of alienism it may be proper further to state, that independent of the rights of the lessors, as derived from the former connection between this country and Great Britain, I think the objection is not well taken, as it relates to those who acquired their title in any other manner than by descent. With respect to aliens in general, I apprehend it is not true that they cannot purchase or hold lands under any circumstances. On the con- trary, it appears to have been settled from the time of Lord Coke, that an alien may take by purchase, and even maintain an action for land, if the crown in England, or the people here, do not interfere. (5 Co., 53; *1 [*ll3 Bac., new edit,, 133, 134 ; Pow. on Dev., 317 ; 7 Term Rep., 398, per Grose, /".) A purchase by an alien is not regarded as an offense which necessarily creates a forfeiture, but the government may, on principles of policy, interfere and deprive him of his title. In the mean time the estate is deemed to be vested in the alien to every purpose until office found, or until his death, in which case, as he can have no heirs, and the title cannot descend, 637 113 SUPREME COURT, STATE OF NEW YORK. 1802 it immediately reverts to the people without office. This doctrine I consider as also recog- nized by the Court of Errors, at their last session, in the case of Hart v. Johnson (see post), as well as by the English authorities. It follows that the lessors, as aliens merely, would be entitled to recover, notwithstanding this objection, except Lord Gage and his wife, who claim by a descent cast subsequent to the Declaration of Independence, and their rights I consider to be protected by the provision in the treaty. The defense founded on the alienism of the lessors, is, therefore, untenable ; and I cannot perceive, as has been suggested, that this opinion at all interferes with the de- cision in Netty v. Hari&vn. In that case no right had attached or was vested in the de- mandant at the period of the Revolution, nor did this provision in the treaty in any manner apply. The other objections may be considered in one view. It is no doubt true that a plaintiff in this action must prevail by the strength of his own title, and if a legal title be shown to exist in another he must be defeated of his recovery. But such an outstanding title must be a continu- ing or subsisting title. It is not sufficient to show that at any distance of time it was vested in another. If that were sufficient it would be in the power of a defendant in ejectment, on most occasions, to hunt up the original grant or patent, comprehending the premises in contro- versy, and oblige a plaintiff to deduce a chain of paper title from thence. This would be attended with infinite inconvenience, and 114*] ought not to be required * where other evidence can be supplied. The plaintiff in this case produced the patent, and professed to claim under it, although he could not show a paper title derived from it. It issued in 1735, and the very next year, in 1736, it appears that Sir Peter Warren claimed the precise tract thereby granted, and accordingly executed eleven leases for life for different parcels of the tract, to different tenants, who took possession and held under him. In 1737, and again in 1742, he paid the quitrents for the whole tract. In 1752 he died ; and in 1767 his representatives, the co-heiresses above mentioned, executed two other leases for twenty -one years, for other lots of the same tract. At the commencement of the Revolution, there were one hundred settlers who had all agreed to take leases under them. Until a few years ago the settlers generally acknowl- edged their title, which was not disputed till some time after the late war. During all this period neither the original patentees nor any other person appeared to claim title under the patent in opposition to Sir Peter Warren or his representatives, nor does the defendant set up a title under that patent. Under those cir- cumstances, and, especially, considering that Sir Peter Warren, within one year after grunt- ing the patent, exercised ownership by placing tenant" on the tract, and that he and his repre- sentatives have continued, at different periods, to do the same, without interruption, and that their title was not till lately disputed, I think it a fair and well founded inference that their title is derived from the same patent, and is not in hostility to it, and that a deed from the patentees to Sir Peter Warren may with pro- priety be presumed. From the first acts of 038 ownership exercised by him till the commence- ment of the late war, was a period of about forty years, and grants have been presumed within a less period. (3 Term Rep., 155 ; 12 Co., 5; Bull., 74; Cowp., 216, 217.) The possessions under Sir Peter Warren and his representatives ought, therefore, not to be considered as *founded on a naked [*115 entry without right, but in affirmance and support of a title derived from the original patentees. Viewed in this light, the possessions so taken must be construed to have reference to the entire contract, and the plaintiff is en- titled to the effect of those possessions in rela- tion to the whole. This brings the present case within the principle of the decision in the case of '1 he Proprietors of Hit, Manor of Living- ston (Jackson, ex dem. Livingston, v. Schutt; see post, p. 118) against their tenants, in which similar proof of possession was admitted as equivalent to an actual possession of the whole, in order to support a plaintiff's title in eject- ment. From the situation of the tract in the present case, it did not admit of any other kind of possession. It was, in its native and unculti- vated state, susceptible only of a gradual and progressive settlement. The possessions were from time to time taken, accordingly, and these possessions, accompanied with title, ought to be effectual in relation to the whole, and, prima facie, sufficient to entitle the plaintiff to recover in this action. The evidence in sup- port of these possessions was, therefore, prop- erly admitted. The possession on the part of the defendant, if it be of sufficient duration to create a bar un- der the statute of limitations, cannot be con- sidered as originally held adversely to the plaintiff's title, for it is stated that at the com- mencement of the war, there were about one hundred settlers on that tract, who had agreed to take leases from the lessors of the plaintiff ; that until a few years ago the settlers generally acknowledged their title, and that such title was not disputed till some time after the war. Upon this evidence there is no ground to sup- pose that any of the possessions previous to the war were held adversely to the title of the lessors, and, of course, the statute of limita- tions cannot apply. I have intentionally laid out of view the propriety of admitting or rejecting the indent- ure which was offered *in evidence on [*1 1C the part of the plaintiff, because I think it un- important to the decision of the cause. Upon the whole, I am of opinion, that the alienism of the lessors of the plaintiff does not oppose a bar to their recovery ; that the evi- dence of possession on their part was proper, and prima fade, sufficient to put the defend- ant on his defense, and that, therefore, judg- ment ought to be rendered for the plaintiff. KENT, J. Two questions arise in this case : 1. Whether the lessors of the plaintiff have shown a sufficient title to recover, supposing no disability of alienism to exist. 2. If they have, then, whether the objection that they are aliens is, in this case, sufficient to prevent a recovery. 1. My opinion on the first point is that there was evidence sufficient to authorize a recov- JOHNSON'S CASEB, 3; 1802 JACKSON, EX DEM. GANSEVOORT, ET AJ,. v. LUNN? 116 ery, and that the jury were to presume a grant from the original patentees to Sir Peter War- ren. The patent was granted in 1735, and the tract immediately surveyed and laid out into lots. The very next year Sir Peter Warren asserted his claim, in the most explicit and formal manner, to the whole tract, and took possession of it, by executing eleven leases for different lots to different persons for lives, with a reservation of rent, and by putting the lessees into the enjoyment of the demised premises. These acts of ownership, accom- panied with a claim of right to the whole, may well be considered as an entry into the whole. If Sir Peter Warren had, at the time, as he declared, a title to the whole tract, one action would have been sufficient to have recov- ered the whole against the patentees, in whom the joint possession of the whole, at the time of his entry, is to be considered. To support his claim, as against them, one action would have been sufficient, and, consequently, there could have been no necessity of divers entries. The doctrine of several entries exists where there are several tenants of the freehold, or the lands lie in several counties, so as to require distinct 117*] *actions. (Co. Litt., 252, b.) Where one action would give effect to a claim, one entry in pursuance of such claim will be co- extensive with the claim. Thus, where the possession is in no one, but the freehold in law is cast on the heir, an entry by him into part is an entry into the whole. (Co. Litt. ,155.) Sir Peter Warren having, therefore, in the year 1736 taken possession of the whole tract under a claim of title, he continued in posses- sion to the time of his death, and continued to exercise acts of ownership, for we find him, in 1737 and 1742, paying the quitrent of the lands. He died in possession in the year 1752, by which the descent was cast upon his heirs, being his three daughters. These heirs, in the year 1767, exercised particular acts of owner- ship over the tract, by leasing two other lots for twenty-one years, with a reservation of rent ; and at the time of the commencement of the American war, we find about one hun- dred settlers on the land, acknowledging the title of the heirs ; and that title was generally acknowledged by the settlers, and not disputed by any of them until some time after the peace of 1783 ; and, at least, two third parts of the whole tract are held under the title of the heirs. Here, then, we find the claim of Sir Peter Warren uniformly asserted and ad- mitted from the year 1736 till after the year 1783, or a period of near fifty years. The de- fendant came into posesssion of the premises about thirty-five years after the first entry by Sir Peter Warren, and it is necessarily to be inferred from the case that he entered in subordination to his claim ; since it is stated that that claim was not disputed, and, conse- quently, admitted by all the settlers, until many years after the entry of the defendant. From all these facts, I think a deed from the original patentees to Sir Peter Warren was to be presumed. Patents and grants are, in a variety of cases, to be presumed, even within the time of legal memory, for the sake of quieting an ancient 118*] possession. This is a rule of *law, re- peatedly admitted and sanctioned by the JOHNSON'S CASES, 3. courts, from the case of Bedle v: Beard (12 Co., 5) down to this day. (Cowp., 102, 111 216, 217; 3 Term Rep., 157, 158, 159; Bull. JV r . P., 74.) In the case of Keymerv. Summer*, Justice Yates directed a jury to presume a grant, from a possession of nearly thirty years, and this case has received the subsequent sanction of Lord Kenyon. The present is a much stronger case. There was a possession of thirty-five years, and a descent cast, in the mean time, and the defendant then entered, not in hostility, but in obedience to that right, and acquiesced in it for a number of years thereafter ; and even now sets up no title of his own, independent of possession. The case of Jackson, ex dem. Livingston, v. Schutt, which was decided in this court in the year 1796, is a case in point. It was an eject- ment for lauds within the manor of Living- ston, and the plaintiff rested his title entirely on his possession. The evidence was, that the manor of Livingston was a place long known and established by law; that the grandfather of the lessor of the plaintiff was in possession of the manor as early as 1737, and continued so until his death, in 1750. That his son and heir succeeded him in the possession, and re- tained it during his life, and that the lessor of the plaintiff held the premises under a devise from him. That the grandfather and father of the lessor were reputed to be in possession of the whole manor, and claimed the same as their right, and exercised acts of ownership in every part, and made coal in the woods all around the premises. That a great number of people lived dispersed throughout the man- or under leases from those ancestors. That the premises lay within the reputed bounds of the manor, and had not been occupied for above eight years. To this evidence the de- fendant demurred, and contended in this court that there was no evidence of actual posses.- sion in the plaintiff ; that where possession is relied on it ought to be an actual one, and not one merely constructive; *and that [*119 possessions in different parts of the manor will not extend to a possession of the contigu- ous lands when no grant of any part of the land is shown. The counsel for the plaintiff contended that ancient and continued posses- sions is favored in law as evidence of right, and that it is not to be presumed that the rightful owner of property would 'be so far forgetful of his interest as to leave it for half a century to be enjoyed by others. That the evidence would have warranted the jury to conclude that the plaintiff was in possession of the premises ; that possession may be shown not merely by a visible fence, but by acts of ownership applicable to the nature of the property, and that it was not requisite to show the print of the axe or plough in every part of a tract of land to constitute a possession of it. Of this opinion were the court, and gave judg- ment for the plaintiff which was afterwards, in February, 1797, unanimously affirmed'in the Court of Errors. I am satisfied that the plaintiff ought to re- cover, unless the objection of the alienism of the lessors is sufficient to prevent it ; and this brings me to consider the second question. 2. The titles of two of the lessors, viz. , the ' wife of Lord Southampton, and of Lord Ab- ess 119 SUPREME COURT, STATE OP NEW YORK. 1802 ingdon, were vested rights at the time of our Revolution, and come within the decision of this court in the case of Kelly v. Harison (Vol. II., 29), in which it was resolved that the Revo- lution worked no forfeiture of a previously vested right. Nor were their husbands inca- pacitated to join with them in a demise of the premises. In the first place, it is not stated in the case when they were married, and we are not to intend they were married subsequent to the Revolution, if that intendment would thereby create a disability. It lay with the party interested in such disability to show it. The court are not to help a party in creating, by mere intendment, a disability to defeat a title. But if it were to be admitted that the two 1 2O*] marriages in question *were subsequent to the aera of our independence, would not avail the defendant. The two daughters of Sir P. Warren, having vested rights prior to the war, those rights were not to be impaired in conse- quence of the separation of the two countries. They are to exist in equal energy, as if the separation had not taken place, and, conse- quently, the marriages of the heirs with aliens would not prevent their full enjoyment of the property, according to the laws of the marriage state. And, if any doubt had otherwise ex- isted respecting the rights of the wives of lords Southampton and Abingdon, it would be removed by the 9th article of the Treaty of Amity and Commerce with Great Britain pleaded or given in evidence, I am satisfied that in this case the set-off cannot be allowed. LEWIS, Ch. J., and LIVINGSTON, /., dis- sented. Motion denied. 1 Overruled 6 Hill, 11. Distinguished 82 N. Y., 23. Approved-40 N. J. L., 287. Cited in Col. & Cai., 173 ; 2 Johns., 348 ; 12 Johns., 181 ; 15 Johns., 326 ; 17 Johns., &5, 347 ; 19 Johns., 324 ; 8 Cow., 205; 3 Wend., 172; 7 Wend., 124; 13 Wend., 496 ; 14 Wend., 658 ; 19 Wend., 221, 305 ; 6 Barb., 506 ; 7 Abb. N. S., 244 ; 1 Bias., 265 ; 5 Mason, 213. PARAGE . DALE. Marine Insurance on Vessel Capture Re- Capture Salvage Bottomry Bond Sale at Auction Benefit of all Concerned Pur- chase by Captain No Money Paid Down Abandonment Measure of Damages. Insurance on a vessel at and from New York to Trinidad, and at and from thence to St. Thomas. The ship left Trinidad in ballast, and while in her course to St. Thomas, she was captured by the French, and recaptured by an American frigate, and carried into St. Christopher's, where, by an agreement with the re-captors, the ship was appraised and one third salvage allowed. The captain borrowed $1,030 on bottomry, and paid 8600 for salvage, and $430 for expenses and repairs. The shin was valued in the policy at $4,000. The merchants of whom the captain borrowed the money put up the ship for sale at auction for the benefit of all concerned, and she was struck off to the captain at her appraised value, for the bene- 1. See 2 Johns. Rep., 342, 346 ; 1 Caines, 69 ; 4 East, 502, 507 ; Le Bret v. Papillon. JOHNSON'S CASES, 3. 1802 FORBES ET AL. v. CHURCH. 156 T fit of all concerned ; but no money was paid by him. The ship sailed to St. Thomas, and arrived at New York in safety, where the insured aban- doned for a total loss. It was held that the insured had no right to abandon, and that the insurer was liable only for the salvage and expenses, being the amount of the bottomry bond. THIS was an action on a policy of insurance on the brig Penelope, at and from New York to Trinidad, and at and from thence to St. Thomas, dated the 6th September, 1799, valued at $4,000, the sum insured. The Penel- ope sailed on the voyage insured, arrived with her cargo safe at Trinidad, and left that place, in ballast for St. Thomas, and on the 3d De- cember, on her passage to St. Thomas, was captured by a French privateer, and, three days after, recaptured by an American frigate, who carried her to St. Christopher's, where she arrived on 15th December. It was there agreed between the agent of the United States' ships, and the captain, that one third part of the gross appraised value of the ship should be paid for salvage, in order that she might be ready to proceed with the first con- voy, and the captain not having any funds to pay the salvage, and fit out the brig for the voyage to New York, borrowed of Gould & Palmer $1,030.60 on bottomry. The Penel- 157*] ope *was appraised at $1,800, of which $600 was paid for the salvage. It appears that Gould & Palmer then put up the brig at auction, on terms purporting to be for the benefit of all concerned, and she was struck off to the captain at $4,000, subject to the bottomry. Gould & Palmer gave the captain a receipt for the purchase money, he binding himself to account with the owners and underwriters and all concerned for the difference between the bottomry and the pur- chase money, no part of the latter being paid. The brig then sailed for St. Thomas, where she was originally bound, and from thence to New York, where she arrived about the mid- dle of January, 1800, and, on the 20th of the same month, the plaintiff abandoned to the underwriters, and claimed a total loss. The abandonment was refused ; but on the llth February, the underwriters tendered to the plaintiff $1,033, as the full amount for which they were liable, which the defendant re- fused. The defendant pleaded the general issue, and gave notice that he should insist on the tender, the amount of which was paid into court. RADCLIFF, J., delivered the opinion of the -court : On this case the question is, whether the plaintiff is entitled to recover a total or a partial loss. I cannot perceive any ground on which the claim for a total loss can now be maintained During one period of the voyage the loss might have been considered as total, but the plaintiff, if he knew the situation of his ves sel, did not act upon it, by offering to abandon to the underwriters, as he ought to have done to subject them to the payment of a total loss If he did not know of her situation until he: arrival at this port, the time for abandon ment had elapsed. The advice of her recov . JOHNSON'S CASES, 3 jry was necessarily cotemporary with the ad- ice of her loss, and in that situation he could lave no election to abandon. After her re- capture and being carried *to St. [*158 Christopher's, it does not appear that her con- lition presented a case for abandonment. She was appraised at $1,800. The amount of he salvage was one third. The additional xpenses for the whole voyage to St. Thomas, and from thence to New York, were $430.60, making, with the salvage, $1,030 .,60. The in- surance, however, extended to St. Thomas only, and the voyage from St. Christopher's o that place is short, and appears, in this in- stance, to have been performed in three days. Deducting the proportion of those expenses which ought to be applied to the voyage from St. Thomas to New York, which was not in- sured, the residue added to the salvage (ad- mitting her appraisement at $1,800 to be just) would not constitute a loss of half 'her value, and, therefore, on that ground, it is not a case of abandonment. I consider the sale by Gould & Palmer for ;he benefit, as it is said, of all concerned, and the purchase by the captain, as having no in- luence on this question. It was, at best, an die ceremony, in relation to the parties to this insurance ; and if the appraisement was ;he criterion to regulate the salvage, it must have been equally so to every other purpose. But there is another ground which alone is decisive against a recovery for a total loss. The voyage insured was wholly performed, and I know of no case in which the insured can abandon after the voyage is completed, and he is informed that it is so. The object of the insurance is then at an end, and if any loss has been sustained the parties must be governed by the circumstances of the case, as they are then found to exist. The contract is satisfied if that loss is paid, and it can, of course, be no other than a partial loss. We are, therefore, of opinion, according to the agreement of the parties, that a nonsuit must be entered. Judgment of nonsuit. ' Cited in 15 Wend., 459. *FORBES ET AL. CHURCH. [*159 1. Marine Insurance On Cargo Capture Voyage Intended Policy not Attached. 2. Demurrer To Evidence Effect of . 3. Wit- ness Impeachment By Party CaUing Him. Insurance on the cargo of a Prussian ship, from New York to St. Andero, in Spain. The order for insurance mentioned that the ship would have a clearance for Hamburg. In an action on the policy, the only evidence given at the trial was the bill of lading and the protest of the captain, admitted by consent. The former stated that the goods were shipped for Hamburg, on account of persons in Stettin; and the captain stated that the ship sailed from New York, bound to Hamburgh, and that she continued in such m- 653 159 SUPREME COURT, STATE OF NEW YORK. 1802 tended voyage until being off Cape Ortegal, and meeting with contrary winds he resolved to put into St. Andero, as safer than to attempt to reach Ham- burg, at that season, and while proceeding to- wards St. Andero, the ship was captured by the British and carried into Guernsey. On a demurrer to this evidence, it was held that the vessel sailed on a voyage for Hamburg, and not for St. Andero, and that the policy not having attached, the plaintiff could not recover, but was entitled only to a return of premium. On a demurrer to 'evidence, every fact which the jury could legally infer from the evidence is ad- mitted by the demurrer. Citations Doug., 119 ; 2 Hen. BL, 87. rpHIS was an action on a policy of insurance _L on the cargo of the Prussian ship De Hoop, from New York to St. Andero in Spain. On the trial, it was proved that the defend- ant subscribed to the policy ; that the ship was a Prussian ship ; that the plaintiffs aban- doned their interest in due time, after hearing that the ship had been captured by a British privateer, and that the broker, on affecting the insurance, showed his order for that pur- pose to the defendant, which mentioned that the ship would have a clearance for Ham- burg. A bill of lading of the goods shipped by the plaintiffs, and signed by the captain, was also read in evidence, from which it appeared that the goods were shipped for Hamburg, on account of persons in Stettin. The captain's protest, taken under oath, be- fore a notary in the Island of Guernsey, and which was read by consent, also stated that the ship was bound from New York to Ham- burg ; that she sailed on that voyage on the 14th December, 1798 ; that after experiencing boisterous weather, by which the ship sus- tained some injury, and which was repaired as well as circumstances would admit, she continued on her said intended voyage until the 16th January, when she made Cape Or- tegal ; that on account of contrary winds, and the appearance of bad weather, the captain thought it most advisable to put into St. An- dero, and lay there at quarantine, rather than proceed to Hamburg, where it was prob- able, at that season, the ice would occasion damage to the ship, if not effectually pre- vent her from arriving there ; and as the 1OO*] *wind was favorable to proceed to St. Andero, he determined to do so, and, on his way to that place, on the 17th January, after making Cape Pinas, he was captured by a British privateer and taken to the Island of Guernsey, a distance of several hundred miles north from Cape Pinas. To this evidence the defendant demurred, and the plaintiffs joined in demurrer. Mr. Hoffman for the plaintiffs. Messrs. Pendleton and Hamilton, contra. " RADCLIFF, J., delivered the opinion of the court : The rule as to the construction of the evidence upon a demurrer is well settled by the cases of Cocksedge v. Fanshaw (Doug., 119), and Gibson v. Hunter (2 Hen. Bl., 87). The principles adopted in those cases are so obvious and just, that no question can arise, except on the application of them. The rule 6*4 is, that every fact which the jury could legally infer from the evidence is admitted by the demurrer. 1 The fact in question here is, whether the vessel sailed on the voyage in- sured. If there be any evidence to that effect, or to justify that conclusion, the plaintiffs will be entitled to judgment ; if otherwise, the voyage insured never existed, and the policy never attached. Were it proper to travel out of the evidence, and indulge conjecture respecting the probable intent of this voyage, considering the course pursued in performing it, and the geographical situation of the vessel when captured, I might be induced to believe that her real distination was for St. Andero, in Spain. But, judging from the evidence alone, there is nothing to warrant that conclusion. At the time of effect- ing the insurance, it. is true, the plaintiffs represented the voyage, as intended *f or [* 1 6 1 St. Andero, and that the vessel would at the same time have a clearance for Hamburg. But this is evidence of intention merely, and founded on the declaration of the insured. Whatever credit may be due to it, it is not any evidence of a voyage being actually under- taken, and pursued to St. Andero. All the testimony in the cause relative to the com- mencement and prosecution of the voyage, goes to prove the destination for Hamburg. The captain's protest states that the vessel was bound for Hamburg ; that she sailed on that voyage on the 14th December, that she con- tinued on that voyage, until the 16th January, when she made Cape Ortegal, and that on account of the state of the winds, the appear- ance of bad weather, and the probability of injury from ice, in proceeding immediately to Hamburg at that season, he was induced to put into St. Andero, and on his way to that place he was captured. There is not a particle of evidence to prove that the voyage was ever undertaken for St. Andero, but the contrary is proved. There appears, therefore, nothing from which any legal inference could be made by the jury that the vessel sailed on the voyage insured. It is improper to substitute conjecture in opposition to this proof ; and it is incompetent for the plaintiffs to deny the whole tenor of their own evidence. The captain is their own witness ; they cannot impeach his veracity, and without impeaching it, it is impossible to sup- pose that the vessel sailed for St. Andero. If the plaintiffs were permitted to impeach this witness, there is no other evidence on which it could be done, and they have founded their right of recovery upon his testimony. The only legal inference that can be made, there- fore, is, that the vessel sailed for Hamburg, and not for St. Andero. It follows, that the policy never attached, and that the plaintiffs cannot maintain their action upon it. Still, as the risk never commenced, and no actual fraud appears, the plaintiffs, according to the former determinations of *this court, [*1O2 are entitled to a return of the premium, and for that only we are of opinion they ought to have judgment. Judgment accordingly. 1. See 1 Johns. Rep., 241 ; 5 Johns. Rep., 128, 129. JOHNSON'S CASES, 3. 1802 DUFF v. LAWRENCE AND VAN ZANDT. 162 DUFF t>. LAWRENCE AND VAN ZANDT. 1. Charter of Vessel^ Loading and Unloading Stipulated Time Capture Release Refusal to Grant Entry Into Port Demurrage. 2. New Trial Mistake of Fact by Court New Trial Costs. A ship was let to freight for a voyage from New York, to Gibraltar, Cadiz and Malaga, all or either of the said ports, at the option of the atfreighters. and as they and their assigns might direct; and they were al- lowed forty working days for unloading and loading in Europe, and they covenanted that in case the ship should, by the order or through any default, neglect or delay of them, their factors or assigns, be detained longer than forty working days, for un- loading the cargo in Europe, to commence when- ever she was ready to deliver her cargo at any of the said ports, and to continue until she should depart from thence, they would pay the shipowner 5 10s. sterling per day for demurrage. The ship on her voyage was taken by a British cruiser and carried into Gibraltar the 16th May, and was released, and on the 5th June, sailed for Cadiz, where she arrived the 10th June, and performed a quarantine of seven days. On the 21st June the captain applied to the custom-house, but was refused an entry on the ground that she had pre- viously been at a British port ; but she was under no restraint of government, and might have left Cadiz at any time. After repeated applications by the supercargo, permission was given to the ship to enter on the 26th August, and she then landed her cargo and took in another, with which she arrived at New York on the 28th September. In an action brought by the ship owner against the aff reighters for demurrage, it was held that the prohibition to enter at Cadiz, being permanent in its nature, and the defendants having an option to go to another port, and the ship at liberty to sail when she pleased, the detention afterwards was at the instance and for the benefit of the defendants, who were, therefore, liable for the demurrage, after the expiration of the forty working days, to com- mence from the 21st June, when the captain was refused permission to enter. Citations Beawes, 136 ; 8 Term R., 259 ; Abbott, 338, 343; Valin.tom. 1, p. 628; Pothier, Trait Chart. Part., No. 102 ; Abbott, 339, 340. THIS was an adfton of covenant upon a charter-party to recover damages for demurrage. The charter-party was dated 20th February, 1799. The plaintiff let to freight to the defendants, the ship Liberty, for a voyage from New York to Gibraltar, Cadiz and Malaga, and all or either of them, at the option of the defendants, and as might be directed by them or their assigns, and back to New York. The charter-party contained the usual cov- enants that the ship should be ready and sail, &c., dangers of the sea, and the restraint of princes and rulers excepted. The plaintiff also covenanted that the defendants should be allowed forty working days in Europe to dis- charge, and load the cargoes, and fifteen days for unloading in the port of New York, and the boats and crew of the vessel should render assistance, &c. The defendants, on their part, covenanted to pay for freight to Gibral- 163*] tar and Cadiz, *or either of them, and back to New York, 1,300 sterling, and one half of the port charges at Cadiz ; and that if the vessel proceeded to Malaga, to pay the further sum of 100 sterling, with all the port charges at Malaga, &c. The defendants further covenanted that in case the ship should, by the orders, or through any default, neglect or delay of the defendants, their factors or assigns, be detained longer than JOHNSON'S CASES, 3. forty working days for the discharging and unloading the cargo in Europe, to commence whenever she was ready to deliver her cargo, at any of the said ports, and to continue until she was despatched from thence, they would pay to the plaintiff for such demurrage at the rate of 5 10*. sterling per day, and every day, as the same shall grow due. The ship sailed from New York on the 15th April, 1799, and on the 16th May following was taken by an armed schooner and carried into Gibraltar. On the 5th June following the ship sailed from Gibraltar to Cadiz, and arrived there on the 10th. On the 1st day of October she sailed from thence for New York, where she arrived in December following. Upon her arrival at Cadiz the ship was obliged to perform quarantine for seven days. She might have left Cadiz when she pleased, there being no restraint by government. The defendants proved that the ship arrived at Cadiz from Gibraltar on the 10th Juce, and commenced her quarantine on the llth, which expired on the 18th of June. On the 21st of June the captain went to the custom-house with his papers, and was refused an entry, on account of having previously been at a British port ; but after repeated applications on the part of the supercargo, permission was given for the ship to enter on the 26th August. She then landed her cargo, took in another, and sailed for New York oh or about the 28th Sep- tember. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case contain- ing the above facts. * Messrs. Harison and Hoffman for [*164r the plaintiff. Messrs. Hamilton and C. I. Bogert, contra. THOMPSON, J. On the part of the plaintiff, it is contended that the forty working days allowed the defendants in the charter-party commenced immediately on the arrival of the vessel at Cadiz, to wit, the 10th of June. If so, the verdict is right. On the part of the defendants, it is con- tended that the forty working days commenced on the day the vessel was admitted to enter at Cadiz, to wit, on the 26th day of August. If so, the plaintiff ought not to recover anything for demurrage. The principle question arising out of this case, for the determination of the court, seems to be when, in contemplation of law, the forty working days allowed the defendants in Eu- rope to unload and load their cargo commenced. The vessel was chartered on a voyage from New York to Gibraltar, Cadiz and Malaga, all or either of them, as might be directed by the defendants ; and the agreement between the contracting parties, as to the commencement of the forty working days, w^s that they were to begin whenever the vessePwas ready to de- liver her cargo at any of the said ports. It be- comes material, therefore, to examine when she might be said to be ready to deliver her cargo. The covenant and agreement, on the part of the owner of the vessel, is that he will carry and deliver the goods, unless prevented by some of the impediments mentioned in the charter-party. There may, therefore, many 655 164 SUPREME COURT, STATE OF NEW YORK. 1802 occurrences take place, and loss or injury arise in consequence thereof, which were not in the contemplation of the parties at the time the charter-party was entered into, and of course not provided for, and which must be borne by them respectively, as it shall happen to fall ; as, in the present case, the damage sustained 165*1 in consequence *of this vessel being obligea to perform quarantine, ought to be borne by the owner of the ship ; for it was a tem- porary prohibition, and in no manner provided for in the contract, and which the ship owner ought to submit to, without prejudice to the freighter. It was the duty of the captain to remain at Cadiz until the quarantine had ex- pired, if requested by the freighters, and it would have been a breach of the contract if he should had departed immediately. But when the prohibition is permanent, it cannot be the duty of the ship owner to detain his vessel any length of time. It would be idle, and without benenUto the freighters, or any of the parties | concerned. It would be imposing unreasonable conditions upon the ship owner, and such as it would be impossible for him to comply with. Under such circumstances, I should suppose it would not be a breach of the contract if he should depart immediately. The vessel could not, in strictness, be said to be ready to deliver her cargo until she was duly entered, and per- mitted to unload ; and had the delay to enter her been occasioned by the default or neglect of the captain, or by reason of any temporary prohibition, 1 should be inclined to think the forty working days ought not to commence until after the vessel had been entered and was in a capacity to deliver her cargo. But the prohibition here seemed to be permanent in its nature. The reason assigned for refusing her an entry was, because she had previously been to a British port. This reason, whether a good one or not, must always continue to exist, and could riot be removed by any subsequent events. It amounted to a permanent prohibi- tion ; and had Cadiz been the only port of de- livery, I should suppose she might have re- turned immediately without forfeiting a right to freight. The supercargo probably suppos- ing the objection to the entry of the ship not well grounded, was induced to make attempts 166*] to remove it, and, by *repeated appli- cations (as is expressly stated) obtained per- mission to have her entered at the custom-house. It is here proper to observe that those solici- tations were all on the part of the supercargo, not the captain. The reasons, probably, lor being thus solicitous to dispose of the cargo at j Cadiz, were that if he went to Malaga there | was an additional freight of one hundred pounds sterling to be paid. The same objec- tion would doubtless lie against an entry at Malaga ; and, perhaps, learning that the mar- ket at Cadiz was better than at Malaga, and knowing also that forty days were allowed, before anything was payable for demurrage, he was induced to make the repeated applica- tions which he did to obtain an entry of the vessel, and which, eventually, proved success- ful. Under these circumstances, therefore, I think the delay must be considered to have been at the request, and for the benefit, of the freighters, and that the forty working days commenced on the 21st day of June, being the 6S6 day the captain went to the custom-house to enter his vessel and was refused. If demurrage was allowed by the jury for the whole time the vessel lay at Cadiz, to wit, from the 10th of June (deducting forty days), as appears to be the fact from the statement of the case, then there ought to be a deduction from the verdict for eleven days. LIVINGSTON, J., having been concerned as counsel in the cause, gave no opinion. RADCLIFF, J. From the state of this case, and the course of the argument, it appears that the plaintiff lays considerable stress on the ex- pression in the charter-party, that he should perform the voyage and deliver the cargo, in good order, at the ports of delivery, the danger of the seas and the restraint of princes and rulers excepted. Hence it was argued that the detention at Cadiz, previous to the entry of the vessel, being occasioned by the act of *the government there, was not imput- [*167 able to the plaintiff, but an event which, by force of those terms in the contract, ought to render the defendants liable for the demurrage. But it is evident that this expression forms an exception merely in the covenant on the part of the plaintiff. He engaged to peform the voyage, the danger of the seas and the re- straints of princes and rulers excepted. It is an exception for his benefit. It diminishes the extent of his engagement merely, and imposes no obligation or responsibility on the opposite party. It is to be found, as of course, in al- niost every charter-party, and can never be construed to extend farther than to exonerate the master and ship owners against the effects of the casualties mentioned in it, and, therefore, can have no influence on. the question before us. Another ground relied upon by the plaintiff is, that by the terms of twe charter-party the the defendants had a right to proceed to another port (Malaga), and ought to have pro- ceeded, and by not doing so, the detention at Cadiz was imputable to them, and is to be con- sidered as their act, for which they are re- sponsible. It appears to me a sufficient answer to this, to say that Malaga is another port of Spain, and the same cause which prevented the entry of the vessel at Cadiz, "her having been in a British port," must equally have operated to prevent her entry at Malaga ; and that if the defendants would otherwise have been obliged to proceed to Malaga, the experi- ment, under those circumstances, must have been nugatory, and therefore unreasonable. But independent of this observation, the de- fendants were not, by the contract, under any obligation to proceed to Malaga. They had a right to go to any one or all of the ports mentioned in the charter-party, and to make their election. This provision was expressly for their benefit, and having elected to proceed to Cadiz, the outward voyage ter- minated there. Besides, they could not pro- ceed to Malaga without paying an additional freight, and it appears to *me extra- [*168 ordinary to insist that, contrary to their inter- est, they should be obliged to incur this addi- tional burden when the option of those differ- ent ports was granted them by the contract. JOHNSON'S CASES, 3. 1802 DUFF v. LAWRENCE AND VAN ZANDT. 168 By this construction, their option to go to any of those ports, which is an important stipula- tion in the contract, would be wholly defeated. I, therefore, consider their election of the port of Cadiz as properly exercised, and the case as resting on the same ground as if the destina- tion had been direct and solely to that port. Placing these considerations out of view, the -question remains, whether the period of deten- tion at Cadiz before the vessel was permitted to enter, shall be considered as part of the forty working days mentioned in the charter- party, and entitle the plaintiff to demurrage beyond that time. Demurrage is an allow- ance made to the master of a ship, by the the freighters, for staying longer in a place than the time first appointed for his departure. It generally depends on positive contract, and is inserted in the charter-party ; but it may also -arise from the customs or usages of particu- lar countries. In the present case, being con- tained in the charter-party, it must be gov- erned by the positive agreement between the parties. The plaintiff engaged to carry and deliver the cargo at Cadiz, and there take in .another cargo. For these purposes, to wit, for the time to be occupied in discharging the one cargo and taking in another, he agreed to allow the defendants the period of forty work- ing days, and the defendants, if they detained him longer for those purposes agreed to pay him the demurrage. According to the plain sense of the contract, the plaintiff, who was to deliver as well as to carry the goods, must -have been in a capacity to deliver before the forty days could commence, and before he could claim the demurrage. The defendants were to have forty working days, and this ex- cludes running days, or days of any other de- scription. If the vessel was detained by the 169*] orders, default, neglect or delay *of the defendants, beyond those working days, for the purpose of discharging and unloading the cargo in Europe, to commence whenever she was ready to deliver, then the demurrage was to accrue. It could in no other event accrue, according to the terms of the contract. I do not mean to be understood, that the plaintiff obligated himself by the contract to obtain the entry, nor to express an opinion whether he would be entitled to freight. These are dis- tinct questions from the claim of demurrage. The inability to enter was not the fault of either party, but the demurrage always pro- ceeds upon the idea of a default, in not being prepared at the time stipulated for that pur- pose. Here was no default, and the contract does not extend to the case of a detention for this cause. The truth is, that neither party, in framing the charter-party, contemplated the event which happened. The prohibition took place subsequent to the voyage com- menced, and it was not anticipated nor in- cluded within any of the provisions of the con- tract. Not being within the covenant on the part of the defendants, the plaintiff cannot recover as for demurrage on the covenant. If he has any remedy, it must be in a different shape. But I think he is not entitled to re- cover in any form of proceeding. Although we have no adjudged case on this question, we find it laid down in Beawes, 136, who, on a subject of this nature, is an authority entitled .JOHNSON'S CASES, 3. N. Y. REP., BOOK to some respect. 1st. That "if before the de- parture of the ship there should happen an embargo, occasioned by war, reprisals, or oth- erwise, with the country to which the ship is bound, so that she cannot proceed on her voy- age, the charter-party shall be dissolved, with- out damages or charges to either party, and the merchant shall pay the charges of unlad- ing his goods." 2d. " If the port be only shut and the vessel stopped for a time, the charter- party shall be valid, and the master and mer- chant shall be reciprocally obliged to wait the opening of the port, and the *liberty [*17O of the ship, without any pretensions for dam- ages on either side." Whether, in this instance, the prohibition was permanent, or admitted of exceptions, does not absolutely appear. The order to re- fuse an entry to all vessels coming from British ports, might or might not be unlimited in point of time. It is not probable that it was unlimited with regard to neutral vessels, com- ing from such ports, nor that it applied indis- criminately to vessels carried in by force, and in consequence of a capture, as well as to oth- ers. This case, from its nature, must have formed a reasonable exception, and it appears that the parties themselves viewed it in that light, for they continued to repeat their efforts to obtain permission to enter, and finally suc- ceeded. Their conduct affords decisive proof that the prohibition was not permanent, or did not, in its just construction, apply to their vessel in her peculiar situation ; and I think it ought clearly to appear to be a case of perma- nent and absolute prohibition, before we should consider it as such, and absolve the parties from the obligation of their contract. According to the spirit of the authority from Beawes, so long as there appeared a reason- able prospect of success, it was the duty of both parties to persevere, and neither could claim damages from the other. It is unneces- sary to examine what would have been their respective rights and duties, if the prohibition had been decisive and permanent, without any rational ground to hope for an entry. From the conduct, of the parties, we must suppose the case afforded a reasonable expectation of success ; and, considering it as independent of the covenant or charter-party, I think the rule from Beawes ought to be adopted, as founded in reason and justice, and a due re- gard to the rights of all concerned. In the case of Hadley'v. Clark (8 Term Rep., 259), it was held that an embargo, until the further order of council (terms *equally unlim- [* 1 7 1 ited) was, from its nature, but a temporary interruption, and did not dissolve, but merely suspended the contract between the parties ; and even after two years, when the embargo was taken off, the ship owner was held an- swerable to the merchant for the nonperform- ance of his contract. In that case, as there was no provision in the contract to regulate the conduct of the parties in relation to such an impediment, the court held that the inter- ruption not being in its nature permanent, they were bound to enforce the contract, how- ever hard it might be, and that none but the parties themselves could dissolve it. (See, also, Abbott, 338, 343 ; Valin, torn. 1, p. 628 ; Pothier, Trait. Chart. Part., No. 102.) 1. 42 657 171 SUPREME COURT, STATE OF NEW YORK. The priiiciple of this case applies to the present, and supports the doctrine on which I rely. I therefore think that the plaintiff is not entitled to recover, on any ground, and, of j course, that there ought to be a new trial. KENT, J. The question appears to me to be attended with some difficulty, though I incline to think there are principles to be met with on the subject, which will enable us to decide with safety, under the particular cicumstances of this case. The defendants had the option of three ports in Europe, to which to go and discharge their cargo, and they elected Cadiz. Their rights, after such election, will, in many re- spects, be as perfect as if but one port was mentioned in the contract ; and yet, if a per- manent impediment arises before that port, and they have an election to go to another, and still persist at the prohibited port, it alters, very much, the nature and equity of the transaction, in respect to a compensation in damages by the owner of the ship. I consider, in the first place, that the prohi- bition here mentioned was permanent in its nature ; as much so as hostilities, or a total prohibition of commerce at the port ; because, the reason of prohibition was founded upon 172*] the *existing war. It grew out of the war, and there was every other reason, at the time, to conclude it would be co-existent. It was because the vessel had been at a British, i or in other words, an enemy's port. It could j hardly be considered in the light of an embar- j go, which is taken universally to mean only a | temporary restraint. Hostilities, say the books, i dissolve those kind of contracts ; because no person can foresee the termination of hostili- ties ; but embargoes do not, as they are only temporary restraints. (Abbott, 340.) That the prohibition, in the present instance, in fact, terminated in a few months, makes no alteration in the case ; for war might equally have terminated in that time. It is the nature of the prohibition, at the time it is met by the merchant, and the conclusion that might ra- tionally be drawn from it, that distinguish the cases. If, therefore, the prohibition in question had arisen from our own government, either before or after the commencement of the voyage, it would have dissolved the contract. 1 (Abbott, 338, 339.) But as it arose from the government of another country, it does not dissolve, nor absolutely excuse, the performance of the con- tract ; because the laws of one nation do not give effect to the positive institutions of anoth- er inconsistent with its own. (Abbott, 340.) Here, then, are two important ingredients in the present case ; 1. The merchant had reserved to himself an option to go to another port, and he chooses to remain at this ; 2. The ves- sel was not permitted to enter, by a prohibition permanent in its nature ; I may add, 3. That although the vessel was at liberty to depart, the defendants preferred, under these circum- stances, to detain her for their benefit. How long she might be so detained was altogether 1. See M'Bride v. The Marine Insurance Com- pany, 5 Johns. Rep.. 399. 58 uncertain, because no person could foresee when the prohibition would cease. And, in such a case, with a choice, and an ability on the part of the defendants to go to another port, and with such an impediment *be- [* 1 7 3 fore them, if they continued at Cadiz, I think it equitable, at least, that they should pay de- murrage when they preferred to detain the- vessel there. They ought not to be permitted afterwards to say that the vessel was not ready to deliver her cargo. The contract would not have mutuality, if the defendants could detain the vessel against such an indefinite prohibi- tion, or go to another port, as they pleased, and yet make the plaintiff no compensation for the detention. It appears to me this would not be just ; and is, therefore, not the sound construc- tion of the contract. The plaintiff, by the terms of the contract, was excused on his part from delivering the cargo, by the restraint ; and it was observed, upon the argument, that an excuse to the one party ought not to be the basis of an action against the other. But his excuse is not the basis of the action. The action is founded on the act of the defendants, in detaining the plaintiff, in the face of the prohibition ; and when they had at the time a stipulated liberty, and the vessel a permission, to go to a neigh- boring port. If the defendants had the author- ity contended for, I do not see where the proposition would be limited. They might have kept the vessel there until the end of the war, if the restraint had lasted so long. This abuse of the contract cannot be admitted ; and I conclude that the forty working days com- menced as soon as the refusal to enter was made known to the defendants, and they elected to remain there notwithstanding. LEWIS, Cli. J., was of the same opinion. N. B. After the opinion of the court wa^ given, the counsel for the defendants stated that the court had relied on a fact which they could have shown did not exist, viz., the per- manency of the prohibition ; and as they did not apprehend that it would have been mate- rial, they prayed a new trial, in order to explain that fact, and *read affidavits to that [*1 74 effect. The court considering the fact material, and that the defendants had been surprised, as to the point, stayed the entry of this judg- ment, and granted a new trial, on the payment of costs. On the second trial of the cause it was proved, by parol evidence, that the prohibition was general and unlimited ; and the jury having found a verdict for the plaintiff, a motion was made to set aside the verdict. On the second argument the judges adhered to their opinions, as above stated ; the judgment was given for the plaintiff in November, 1803. Judgment for the plaintiff. Approved 2 Ben.. 343. Distinguished Hill & D., 53; 8. C., 3 Le*. Obs.. 9. Cited in 4 E. D. Smith, 73 ; 2 Ben.. 340. JOHNSON'S CASES, 3- 1802 DENN, EX DEM. C. R. GOLDEN, v. CORNELL. 174 DENN, ex dem. C. R. COLDEN, v. CORNELL. Witt Devise Evidence of Previous Convey- ance Estoppel of Heirs by Language of Witt. A. by his will and testament, among' other things, devised as follows : "And whereas I have conveyed to my son C. my lands at C., and to my son D. my lands at F., I give and devise all my remaining- lands and tenements, and real estate whatsoever, to my sons C. and D. and my daughter," &e. It was held, that the recital in the will was evi- dence of a conveyance of the farm in F. to D., and that C. as heir of the testator was estopped by the recital to deny that theifarm was conveyed to D., and that the necessary intendment from the lan- guage of the clause in the will was, that it was a conveyance in fee to D. Citations 1 Salk., 286 ; 6 Mod., 44 ; 8 Mod., 33, 34 ; Dyer, 169 a; 1 Mod., 113; Willes' Rep.. Ill; Co. Litt., 352 b; Roll. Abr., 870, 872; Cro. Eliz., 756, 757; Styles, 103. THIS was an action of ejectment for a farm called Spring Hill, in Flushing, in Queen's County. The plaintiff proved that John Willett was long ago seized of the premises, and that, on the 12th May, 1762, they were conveyed by him and Thomas Willett to Lieutenant-Gov- ernor Cadwallader Colden, who was seized thereof from that time to his death, in Septem- ber, 1776, and the lessor of the plaintiff de- duced a title from him, as heir-at-law. The defendant gave in evidence the will of Lieutenant-Governor Colden, dated 20th May, 1775, in which there was the following clause : "And whereas I have conveyed to my son Cad- wallader, my lands at Coldenham, and to my son David, my lands in the township of Flush- ing, I give and devise all my remaining lands and tenements, and real estate whatsoever, to my sons' Cadwallader and David, and to my daughter," &c. At the conclusion of the will were these words : "And before the sealing and publishing of this my will, and to prevent any misunderstanding, I declare that the ex- 1 7 o*]penses of *supporting my family includ- ing my son David, his wife and children, and of the improvements of the farm at Spring Hill, has been paid during my life, or shall be paid NOTE. Recitals Estoppel. As a general rule all parties to deeds and their Crivies, and parties claiming under wills, are bound y recitals contained in them see Greenleaf on Ev., Vol. I., sec. 23, note (in which this case is discussed), and authorities there cited ; Nash v. Turner, 1 Esp., i 217 ; Bowman v. Taylor, 2 Ad. & Ell., 278 ; Lanison v. Tremere, 1 Ad. and Ell., 792 ; Stow v. Wyse, 7 Conn., 214 ; Douglass v. Scott, 5 Ohio, 194 ; Byrne v. Moorehouse, 22 111., 603 ; Crane v. Morris, 6 Pet., 598; ! Torrey v. Bank of Orleans, 9 Paige, 649 ; Rossel v. Wickham. 36 Barb., 386; Jefferson v. Howell, 1 Houst. (Del.), 178; Allen v. Allen, 45 Pa. St., 468; Wilson v. Land Co., 77 N. C., 445; Buchanan v. Kimes, 58 Teun., 275; Knight v. Thayer, 125 Mass., 25; American Bank v. Banks, 101 U. 8., 240; Esterbrook v. Savage, 21 Hun., 145; Root v. Wright, 21 Hun., 344; Morris v. Daniels, 35 Ohio St., 407 ; Welsch v. Belleville Savings Bank, 94 111., 191 ; Farra v. St. C. Coll., 16 Eq., 24; Re Smith, 2 J. & H., 594 ; Sherratt v. Oakley, 7 T. R., 492 ; Smith v. Fitzger- ald, 3 V. & B., 2 ; Quihampton v. Garing, 24 W. & R., 917 ; Nugent v. Nugent, I. R. 8 Eq., 78 ; Ives v. Dod- son, 9 Eq., 401 ; Aird v. Quick, 12 Ch. D., 291. The government is estopped by recitals in statutes and public documents. See Greenleaf on Ev., Vol. I., sec. 491, and authories there cited. JOHNHON'S CASES, 3. out of my estate; and that no part thereof shall be chargeable to my son David." This will was republished on the 7th August, 1776. The defendant gave in evidence the act of attainder of David Colden, and deduced a title, in pursuance thereof, under the State. He further proved that David resided on the premises with his father for some years, and that after the death of the testator he contin- ued thereon, using the land as his own, until he left the State, in the years 1783 ; that the lands at Coldenham were held by Cadwallader, the devisee, during his life, as his own, and by his widow and children, as their own, since his death. The plaintiff then proved, by two witnesses, who resided, the one in, and the other near, the family of Lieutenant-Governor Colden, that they understood from him, and from David and his wife, that David was to have no more than a life estate in the premises, and that Cadwallader was to have the remainder in fee. On these facts, a verdict was found for the defendant. A motion was made on the part of the plaintiff to set aside the verdict, and for a new trial. Messrs. Colden and Troup for the plaintiff. Messrs. Jones and Riggs, contra. KENT, J., delivered the opinion of the court: This case was brought before the court on a former occasion. A verdict had been found for the plaintiff, on evidence to the same effect as that contained in the present case, except that there is now the additional testimony of the two witnesses who resided in or near the" family of the testator. The court awarded (April Term, 1801) a new *trial, and for the [*176 reasons, as I understood, and on my part meant, that the verdict was against evidence, as the recital in the will, added to the parol proof, was decisive evidence of the fact of a conveyance of the premises to David, and that the necessary intendment from the case was, that the conveyance was in fee. The verdict is now in conformity with that opinion; and if it was correct at the time, the additional proof thrown into this case can have no material influence upon it. I remain of the same opinion as before, that the recital is evidence of the conveyance, and indeed I consider that the heir of the testator is estopped by the recital in the will to d2 Mi SUPREME COURT, STATE OF NEW YORK. 1802 Mansfield said there could be no doubt of his competency, and he cited the case of Bush v. Butting (Sayer, 289), in the time of Sir D. Ryder, which was an action of debt on the statute of 2 Geo. II. against bribery, where a man who had taken the bribery oath, was held a competent witness to prove himself bribed, and in that opinion all the court con- curred. The maxim nemo attegam, &c. , is applicable to parties rather than to witnesses ; and it goes no more to the exclusion of witnesses in civil, than in criminal cases. 1 My opinion, accordingly, is, that the witness offered in the cases stated was a competent witness, and that judgment ought to be for the defendants. THOMPSON, J. This was an action of axsump- #it, brought by the indorsee against the in- dorser of a promissory note, drawn by John M. Smith. It is stated in the case that Smith, the payee, has taken the benefit of the Bankrupt Act since making the note, and has released to his Assignees all interest in the residue of his estate. Smith is offered, on the part of the defend- ant, to prove that this note was made for a usurious consideration, and, of course, void. The question submitted to the decision of this court is, whether John M. Smith was a competent witness to prove that fact. The circumstances under which this ques- tion presents itself, are so weighty and im- 193*] portant, that it is with some *diffi- dence that I approach the decision. Having been argued before I came to the bench, I am left to decide it, xinaided by the light which might have been thrown upon it by the coun- sel concerned, and the difference of opinion between m'y brethren imposes upon me the task of deciding the question. On recurrence to the authorities cited, there appears to be no case prior to the year 1775 in which this point came directly under consideration ; and in those referred to since that period, there ap- pears to be great contrariety of decision, and diversity of opinion. The question, therefore, comes before this court as one new and alto- gether unsettled, and must depend upon the reason, justice, propriety and policy of the rule to be adopted. Smith, in the present case, could not be considered as interested in the event of the cause ; neither was he, by conviction, rendered infamous, so as to exclude his testimony. There are also considerations of public policy which weigh strongly in my mind, in favor of the admission of this wit- ness. It is certainly right and proper that the statute against usury should be enforced, and I do not hesitate to declare, that I feel it my indispensable duty, so long as that statute re- 1. Evans, in a note to the translation of Pothier on Obligations (Vol. II. p. 318), in remarking on the decision in Walton v. Shelly, says, very justly, that the real principle of the maxim cited by Lord Mans- field, is no more than that a person shall not found any claim or defense upon nis own iniquity, aud that it had no relation to the case of a witness ; that it would be difficult to conceive that a person would be inclined, as a witness, to state his own miscon- duct, in opposition to the truth, unless he appeared to have some motive for doing so, connected with the event of the cause. 664 mains in force, strictly to exercise all the con- stitutional and legal powers vested in this court for the purpose of carrying it into effect. But although refusing to admit a party to a note as a competent witness to prove the usury may, perhaps, render it more difficult to establish the fact, yet I think a contrary decision would be fraught with mischiefs far more pernicious. The rule as laid down by Lord Mansfield, in the case of Walton v. Shelly, "that no man shall be admitted to invalidate his own paper, and especially negotiable paper," seems to be founded in so much good sense, and on such sound principles that I think it ought not to be shaken. Although the interest of bona fide holders of a promissory note may be materially affected by admitting the original consideration to be at all impeached, yet I take *this principle to be too well [*194 settled now to admit of doubt, that a note given for a usurious consideration, though in the hands of a fair purchaser without notice, is void. The necessity of the case requires the law to be thus settled, otherwise the statute would become* a dead letter. But to extend the principle so far as to admit the maker of the note himself to invalidate an instrument which he has signed and put into circulation, as a bona fide transaction, seems to be too much jeopardizing the rights of third persons, and clogging the circulation of this species of paper, which the Legislature have thought proper to encourage, and to open so wide a door to fraud and imposition, and afford so great a temptation to perjury, that it would be attended with evils incalculable. As contradictory decisions on this point have been made in England, it may not be im- proper to examine the cases in which the ques- tion arose, and to see on which side the weight of argument and authority lies. No case prior to that of Walton v. Shelly is to be found in which this question is directly raised. Yet the counsel in that cause admit the rule as laid down by Lord Mansfield to be correct, but denied its application, because the action was not founded on the notes in ques- tion. Their language, as stated by the re- porter, is this: " If there is no objection to this evidence in point of interest, the only consideration is, whether the witness shall be permitted to invalidate his own security. They admitted the propriety of the general rule that no person ought 'ever to be permitted to invalidate any instrument or cash paper to which he has contributed to give a currency, by affixing his name. But," say they, " that rule has only been adopted where the action has been brought on such specific note. There the evidence of the indorser could not be re- ceived, because it tends to impeach his own security." And, indeed, the judges, in de- livering their *opinions in that cause, [*lf)5 speak of it as a rule never before doubted. The maxim of the civil law, nemo allegans mam turpitudinem est audiendus, is certainly founded in good sense. It seems repugnant to the sound principles of morality and pro- priety that any man should be permitted, and much more compelled, to come into a court of justice and allege his own crimes ; and atlhough perhaps a witness, under such cir- cumstances, might not carry much weight JOHNSON'S CASES, 3. 1802 RIGGS v. DENNISTON. 195 with a jury, if the objection went to his credit, and not to his competency, yet it appears to me too dangerous a principle, and too injurious to commerce, to be adopted. I do not mean to adopt the maxim above quoted, in its fullest extent, and to say, that in no case shall a man be heard, to allege his own turpitude, but I think it is contrary to sound principles that he should be compelled to do it. So far as the decision in this case of Walton v. Shelly ought to have weight, it is the unanimous opinion of the court, against the admission of the witness. In the case of Bent v. Baker, Lord Kenyon, who appears some years afterwards to have changed his opinion, admits the rule, as laid down by Lord Mansfield, to be proper when applied to negotiable paper. His language, as stated by the reporter, is this: "It has been said, that a person cannot be admitted to give evidence to invalidate an instrument which he himself has executed, but I cannot assent to that as a general proposition. I entirely agree with the distinction taken by my brother Bul- ler, that where a person has signed a negoti- able instrument, he shall not be permitted to invalidate it by his own testimony. " It is true Lord Kenyon, some years afterwards, in the oase of Rich v. Topping (1 Esp. Rep., 173), denied that he made use of the words imputed to him in Brent v. Baker. In the case of Charrington v. Milmr (Peake N. P., 6), he again recognizes the same prin- ciple. It was an action by the indorsee of a promissory note against the maker. The 196*] *indorser was called to prove that the note had been paid. The witness was objected to on the ground that a man should not be permitted to invalidate his own paper. Lord Kenyon admitted the witness, stating that he was competent, because his evidence did not go to prove the note originally void, clearly implying that had the object of his testimony been to show that the note was originally void, he would not have been competent. The same point was decided by Justice Bul- ler, at Nisi Prius, in the case of Phetheon v. Whitmore. (Peake N. P., 40.) In the case of Humphrey v. Moxon (Peak. , 32), Lord Kenyon again recognized the same principle, and speaks of it as a point well set- tled. He says, "the courts have laid down a rule that a man shall not destroy his own security." Lord Kenyon, however, afterwards, in the case of Adams v. Lingard (Peake, 117), ruled otherwise, at Nisi Prius, and admitted the indorsee of a bill of exchange to invali- date it. In the case of Jordaine v. Lashbrooke, the question again came before the Court of King's Bench, when Lord Kenyon, together with Justices Grose and Lawrence, decided that the payee of a bill of exchange, in an action by the indorsee against the acceptor, was compe- tent to prove the bill void in its creation, Jus- tice Ashhurst dissenting. Thus we find differ- ent decisions at different periods, in the Court of King's Bench ; and, on some occasions, I think it may fairly be said that Lord Kenyon has differed with himself. Under all these circumstances, this question seems to be unset- tled in the English courts. No decisions have there taken place that can, in any measure, influence the determination of this court. JOHNSON'S CASES, 8. Believing, as I do, that to admit a party to a negotiable note to come forward as a witness to impeach that note, would greatly embarrass | trade and commerce, and almost entirely pre- vent the circulation of this species of paper, and that if it did not have thin effect, *it [* 1 9 7 would open a door to innumerable frauds and impositions upon bona fide holders of nego- tiable paper, and that it would, in its conse- quences, hold out strong temptations to perjury and corruption, I think, on the whole, that principles of sound policy and morality demand the decision that a party to a negotiable note ought not to be admitted as a witness to inval- idate it. I confine myself, in this decision, to the particular case of negotiable notes, and do not mean to say, generally, that in no cast- whatever, a party to any instrument shall be permitted to impeach it. Judgment for the plaintiffs.* Overruled 5 Cow., 25, 153, 159; 8 Cow., 672; 3 Wend., 416. Explained 17 Johns., 180. Distinguished 10 Johns., 232 ; 18 Johns., 168. Cited in Post, 211 ; 1 Cai., 267 ; 1 Johns., 572 ; 2 Johns., 169; 2 Johns. Ch., 192; Hoff., 594 ; 2 McLean, 245. *RIGGS . DENNISTON. [*198 1. Libel Counselor at Law Witness Client'* Secrets. 2. Id. Commissioner of Bank- ruptcy Charging Various Offenses Justiji-* cation Pleading. To charge a counselor at law with offering' him- self as a witness, in Order to divulge the secrets of his client, is libelous ; and it is not a sufficient jus- tification, that he disclosed matters communicated to him by his client, which had no relation or perti- nency to the cause in which he was engaged. The secrets of his client, which the counsel is bound to keep, are the communications and instruc- tions of the client, relative to the management or defense of his cause. To charge a commissioner of bankruptcy with being a misanthropist, a partizan, stripping the unfortunate debtors of every cent, and then depriv- ing them of the benefit of the act, &c., is libelous. And to make out a justification of the charge, the defendant must show that the plaintiff, as commis- sioner, willfully perverted the law to such oppressive purposes. Whether the law allows a justification of a libel which does not charge any indictable offense. Qucere. Citation Cowp., 687; 4 Term R., 432; Laws of U. 8., Vol. v., p. 60 ; 2 Vent., 193 ; Cro. Jac., 27 : Cro. Eli/.. 434. was an action for a libel. The case -L came before the court on demurrer to the pleas. The following is a brief statement of the pleadings. The declaration contained three counts: 1. Peake, in his Law of Evidence, 3d ed., 190, in 1808, and Chitty, in his Treatise on Bills and Notes, 2d ed., p. 282, considers the rule laid down in the case of Walton v. Shelly as no longer existing, after the solemn decision of the court, in the case of Jqr- daine v. Lashbrooke, and the competency of a wit- ness seems to rest wholly on the question of inter- est. See, also, Kent v. Lower, and Shuttlewortli v. Stephens, 1 Campb. N. P., 177, 408, and Mnundrcl v. Kennett, Ih., note ; Stevens v. Lynch, 2 Campb. J\". P., 332. 667 198 SUPREME COURT, STATE OP NEW YORK. 1802 The first count stated that the plaintiff was a counselor at law, of this and other courts, and also a commissioner of bankruptcy, under the act of Congress ; and that the defendant, maliciously intending to defame and injure him, as counselor and commissioner, did, on the 20th April, 1801, falsely and maliciously, print and publish in a newspaper, to the fol- lowing effect, viz : "Since the establishment of our independence there has been no man appointed to an office, so unqualified to fill it as C. 8. Riggs (meaning the plaintiff) is that of commissioner of bankruptcy. Is the misan- thropist and the violent partizan (meaning the plaintiff) a fit character to intrust the liberties of our fellow-citizens with? Mr. Riggs (mean- ing the plaintiff) has given no ocular demon- stration to the contrary. He (meaning the plaintiff) has defeated nearly one third of all the unfortunate debtors that have been before him (meaning the plaintiff), first stripping them of every cent they have in the world, then depriving them of the benefit of the act made for their relief, under the most trifling pretenses ; and, by that means, cutting off a number of valuable members from society ; that property being taken from them (mean- ing the said unfortunate debtors), they have no way of bringing their creditors to a settlement ; and, in that embarrassed situation, they can follow no business, and, perhaps, thrown into a gaol, and there expire for want. Oh ! how grateful must this be to the feelings of this 1&9*] misanthropist *(meaning the plaintiff), more so than to keep unfortunate debtors in gaol for petty law costs, when his (meaning the plaintiff's) client is willing to liberate the poor sufferer that has been in confinement for years ; more so than if they had succeeded in depriving the debtors of the benefit of the limits ; nay, even more so than to receive a fee of $50 as" a counselor (meaning to intimate, fee., that the plaintiff had been so employed), and then to offer himself (meaning the plaint- iff, and that he had voluntarily offered him- self, &c.) as an evidence against his client, in order to divulge the secrets he (meaning the plaintiff) received as counselor, &c. (meaning thereby that he had divulged his client's secrets, contrary to his duty, &c.). I (meaning the defendant) cannot but contrast the conduct of the two sets of commissioners. (Meaning one set, whereof the plaintiff was not one, antl one set whereof the plaintiff was one.) The one (meaning the set whereof the plaintiff was not one) acts according to the intent and meaning of the law, &c. They do not pervert it into an ex post facto law, and because a man can- But in Coleman v.Wise (2 Johns. Rep., 165), Spencer, J., in delivering' the opinion of the court, considered the rule laid down by a majority of the court, in the case of Winton v. Saidler, as too solemnly settled to be disturbed. The same rule appears to have been adopted, on the authority of Walton y. Shelly, in the Supreme Court of Pennsylvania, in the case of Stille v. Lynch (2 Dallas, 194), and in the Supreme Court of Massachusftts, in the cases of Warren- v. Merry (3 Mass. Rep., 27), and Churchill v. Sutter, (4 Mass. Rep., 156). The Supreme Court of Errors, in the State of Connecticut, in Allen v. Holkins (1 Day's Rep., 17), appear to have adopted the rule laid down in Walton v. Shelly, in its full extent, that a person was not a competent witness to impeach a deed or instrument in writing' which he had subscribed. But in Webb v. Danf orth (1 Day's Rep., 101), the same court held that a party to a written instrument 668 not tell the loss and profit of a transaction, or discount paid upon a note, things that had taken place years before, &c., to cut him off from society," &c. (meaning to insinuate* and have it believed that the plaintiff had, as com- missioner, &c., willfully and knowingly, per- verted the law, &c., for illegal and oppressive purposes). The second count was to the same effect, except that it charged the libel as injurious only to the plaintiff, as commissioner. The third count was similar, but charged the libel as injurious only to him as a coun- selor. The plea to the first count stated, by way of justification : 1. That, on the fourth day of August, 1800. Nathaniel G. Ingraham employed the plaintiff, as counsel, in a case brought against him by Seixas & Abrahams, and paid *him [*2OO $50. That Ingraham then informed him, as- a secret communicated to counsel, that he had concealed himself to avoid being arrested in that cause, and had, for that purpose, left the city ; which secret the plaintiff did afterwards divulge to'W. W. Woolsey, and afterwards, on the 30th December, 1800, at an inquest holden before the district judge, to inquire whether Ingraham had become a bankrupt, the plaint- iff came and offered himself as a witness against Ingraham, in order to divulge the said secret. v 2. That the plaintiff, before the publication, fee., did wrongfully and unlawfully use his power, as commissioner ; for that he, as com- missioner, did, for one hour, examine a cer- tain Napthali Judah, in the absence of the other commissioners (the said Napthali being^ then a bankrupt), and did require answers to questions put to him, without giving the said Napthali a reasonable time to make correct answers, and did cause such examination to be reduced to writing, and compel the said Nap- thali to sign the same, with the intent that such examination should be used by the com- missioners, in deciding whether the said Nap- thali was entitled to the benefit of the act, &e. 3. That the plaintiff, before the publication, &c., did, without assigning any reason, refuse, as commissioner, &c., to certify in the case of the said Napthali, and in the case of John Blagge, who had before been under examina- tion as a bankrupt, and who were entitled to their certificates. 4. That the plaintiff, before the publication, &c., did, as commissioner, &c., examine the said John Blagge, then before him as a bank- rupt; and also the said Napthali and the said mijjht be a witness to facts, subsequent to its exe- cution. So in Warren v. Merry, the Supreme Court of Massachusetts held that the maker of a note was a competent witness to prove any facts happening after he negotiated the nott', if he was not interested ; and this court, in Baker v. Arnold (1 Caines, 258), held that the indorser of a note was a competent witness to prove that the indorsement was made after the note was due ; though Livingston, J., and Thompson, J., thought the witness iricomix-tent, within the principle laid down in Winton v. Saidler. See, further, Barinir v. Reeder (I Hen. & Mun., 174), in the Supreme Court of Virginia, the opinion of Lyon, J., who adopts the case of Walton v. Shelly as the best law. The Supreme Court of South Caro- lina, in the case of Canty v. Sumter (2 Bay's R:p.>, 83, also adopted the rule of that case, scd ausere. JOHNSON'S CASES, 3. 1802 RIGGS v. DENNISTON. 200 X. G. Ingraham, also bankrupts, touching the loss and profit on transactions many years be- fore the bankrupt law was in force, and be- cause they could not tell, &c., the plaintiff, as commissioner, under such pretenses, did de- prive them of the benefit of the act. There- 20 1*] fore, *the defendant published the words in the first count, as he lawfully might. There were pleas of justification to the like effect, to the second and third counts in the dec- laration ; except that the matter of justification in the second plea was, in conformity to the second count, confined to the plaintiff's con- duct as commissioner, and in the third plea to his conduct as counselor. The fourth plea was to the whole declara- tion, and to the effect "that at the time of printing and publishing the words, the same were true ; wherefore, the defendant printed -and published them as he lawfully might," &c. There was a special demurrer to the first plea, because 1. It did not deny any of the libelous mat- ters set forth in the first count, nor set forth Any legal justification or excuse for a great part of the libelous words 2. That the first count sets forth the mean- ing of the words by inuendoes, and the plea .admits not only the publishing the words, but the inuendoes, and does not allege any fact tending to justify them in the sense they are .stated to have been published. It neither ex- pressly admits, nor traverses and denies the inuendoes. 3. That the pretended justification does not meet and justify the allegations in the bill, neither as to the direct charges, nor as to the meaning, &c. 4. That the plea alleges the plaintiff did cer- tain acts as commissioner, in the absence of the other commissioners ; but does not de- scribe who those absent commissioners were. 5. That the plea alleges a certain examina- tion was intended to be used on the inquiry, whether, &c., which allegation is impertinent and senseless. There were also special demurrers, to the like effect, to the second and third pleas. The special demurrer to the fourth plea stated that the plea did not set forth one fact to show the truth of the libel, nor any matter of fact on which an issue could be taken, and was too general and uncertain. 2 O2*] *Mr. Hopkinx in support of the de- murrer. Mr. Biker, contra. KENT, J., delivered the opinion of the court: There can be no doubt but that the charges contained in the declaration are libelous, and actionable. They were published of the plaint- iff, in relation to his profession and office, and tended to injure and disgrace him. They charged him with a want of fidelity in his pro- fession, and with partial and oppressive con- duct as a commissioner. They were printed, and consequently had a wider circulation and more permanent existence. The only ques- tion, therefore, that can arise upon the record, is, whether the pleas contain matter which amount in law to a justification of the libel. One charge in the libel is, that the plaintiff .JOHNSON'S CASES, 3. had voluntarily offered to divulge the secrets intrusted to him by his client, contrary to his duty as a counselor. The first plea (to which I now confine myself) states, by way of justi- fication of this charge, that the plaintiff being employed by Nathaniel G. Ingraham in a certain cause, was informed by him, as a se- cret, that he (Ingraham) had concealed himself and left the city, to avoid being arrested in that cause ; and that the plaintiff afterwards divulged this secret to W. W. Woolsey, and, again, at an inquest held before the district judge, offered himself as witness against his client, in order to divulge that secret. The fact of his having divulged this secret to Wool- sey, I consider as irrelative and impertinent. The libel charges the plaintiff with a breach of trust and duty as counsel, in that he volunta- rily offered himself as an evidence to divulge the secret. The disclosure to Woolsey was no answer whatever to the libel, nor does that dis- closure appear to have been intended, nor could it, in judgment of law, have operated to theinjury or prejudice of his client. The nature of the privilege of a counselor *is, that [*2O3 he shall not disclose his client's secrets in any action. The law has an eye to the disclosure only as a witness, and the libel pointed only to such disclosure. I therefore lay the fact of that part of the disclosure out of view. The other fact, that the plaintiff, at the in quest, offered himself as a witness, in order to divulge the secret is objected to, as insuffi- ciently alleged, because it is not averred that he voluntarily offered himself, and whether voluntary or not, was traversable. A volun- tary offer is here to be understood, and the meaning of the allegation is certain to a com- mon intent, which is well enough in a plea. The plaintiff might have traversed the fact, and the defendant would have been bound, on the trial, to have shown the offer to have been voluntary, for that is the gist of this part of the libel, and the intendment of the plea. This allegation in the plea can have no other rea- sonable intendment. It is the language of the libel itself, which is admitted to mean a volun- tary offer, and, according to the just observa- tion of Lord Ch. J. De Grey (Cowp., 687), a man cannot defame in one sense and defend himself in another. But the fact which the plaintiff offered to divulge does not amount to a justification of the libel. What the law understands by secrets between the attorney and his client, are communications made, as instructions, for con- ducting the cause, and not any extraneous or impertinent communications (4 Term Rep., 432) ; and it does not appear that the fact in question had any pertinency to the merits of the cause in which the plaintiff was employed. Whether Ingraham had or had not concealed himself to avoid the process, could not be any matter of instruction in the defense. It had no relation to it, and was, as Lord Kenyon observes (4 Term Rep. , 432), a mere gratis dic- tum, which the plaintiff was under no obliga- tion to keep secret in his character as counsel. At any rate, it was incumbent on the defendant to have *stated that the fact commu- [*2O4 nicated had connection with the instructions for a defense, and so have given the plaintiff an opportunity to traverse that allegation. 66!) 204 SUPREME COURT, STATE OF NEW YORK. 1802 The plea, therefore, as far as it justifies the libel upon the plaintiff as a counselor, is bad. Another part of the libel charges the plaintiff with having willfully and knowingly perverted the law, while acting as commissioner of bank- rupts, for illegal and oppressive purposes. The facts stated in the plea, by way of justifi- cation of these charges, are, that the plaintiff, as commissioner, separately examined Nap- thali Judah, and required his answers, without giving him a reasonable time to make correct ones ; that the plaintiff, without assigning any reason, refused to certify as commissioner in the cases of Napthali Judah and John Blagge ; and that he examined, as commissioner, Judah, Blagge and Ingraham, touching transactions that happened many years before the Bank- rupt Act was passed, and because they could not answer, refused them their certificates. My opinion on these facts is, that neither of them amounts in law to a justification, because neither of them import, with certainty, even to a common intent, that the plaintiff willfully perverted the law for illegal and oppressive purposes. They may all be true, and yet consist with rectitude of intention. The examination of Judah, in the absence of the other commissioners, may have been legal, for what appears to the contrary. If the bankrupt be in execution, or cannot be brought before the commissioners (which might have been the case here ) any one of them may attend and take his discovery (Laws of United States, Vol. v., p. 60), and what amounted to reasonable time to give a cor- rect answer was matter of opinion. There is nothing in this transaction that by a com- mon intent implies, or that is averred to mean, depravity of heart, and in that consisted the essence of the libel. The same remark applies, and with stronger force, to the other fact 2O5*J *of withholding the certificates. The plea does not meet and justify the charges. It is substantially defective. There are other charges in the libel which the plea has not attempted to answer or justify, and which charges were clearly libelous, be- cause they threw contumely and odium upon the plaintiff, in his character as commissioner. These charges represented him as a misan- thropist, a violent partizan, as stripping unfor- tunate debtors of every cent, of being gratified in their distresses, &c. It is unnecessary, at present to examine the question whether the the law will allow of a justification to such charges which do not fix upon the party any indictable offense. It is sufficient to observe, that in respect to the plea now in question, no justification is set up in answer to them ; and as the plea does not, therefore, either by deny- ing or justifying, meet the whole matter or gravamen contained in the count, it is for that reason also bad. (2 Vent., 193; Cro. Jac., 27; Cro. Eliz., 484.) I have confined myself hitherto to the first plea, but the second and third pleas being to the same effect, the same remarks will apply to them. The fourth plea contains only a general allegation that the words in the libel were true. If those charges in the libel, such as misanthropy, &c. , to which no justification is set up, be capable of being justified (and on which point we give no opinion), this general 670 allegation is sufficient, because such a char- acter as the libel bestows upon the plaintiff is not formed by one specific act, but by habit- ual conduct. However, as to other parts of the libel, the plea is too general and vague. It ought to have stated the precise facts which j were to justify the charges, so that the plaint- j iff might have an opportunity of denying ! them. Upon the whole, we are of opinion that all the pleas are bad, and that judgment ought to be for the plaintiff. Judgment for the plaintiff , l Overruled-40 N. J. Law, 271. Cited in 9 Johns., 215; 20 Johns., 206; 8 Wend., 618 ; 6 Hill, 420 ; 1 Denio, 359 ; 3 Crunch C. C., 38. *WILKIE v. ROOSEVELT. [*2O 1. Promissory Note Action on Defense Usury Verdict against Charge of Court New Trial Decision Disregarded Third Tj-ial Costs. 2. Id. Usurious Contract Innocent Third Parties Proof. 3. Question* of Law and Fact How Determined. In an action on a promissory note the defense wag usury, and the judge, at the trial, charged the jury that the note was usurious ( see ante, p. 66 ), and that they ought to find for the defendant, but the jury found a verdict for the plaintiff; and the court afterwards set aside the verdict, and granted a new trial. On the second trial, the jury, on substantially the same evidence, notwithstanding the opinion of the court, found a verdict for the plaintiff, and the court set aside the verdict, as against law, and granted a third trial. If a promissory note is given for an usurious con- tract, it is absolutely void, even in the hands of an innocent person, who has taken it in the fair and regular course of trade, without knowledge of the usury. Citations 2 Johns. Cas., 60; ante, p. 185; 4 Burr., 2108 ; 1 Term R., 170, 171. ON a second trial of this cause ( see ante, p. 66), the jury again found a verdict for the plaintiff, and a motion was now made to set aside the verdict, and for a new trial, on a case containing substantially the same facts as appeared in the former case. The only difference was that Mark, one of the drawees, who had been discharged under the Insolvent Act, and whose interest was re- leased, was admitted as a witness ; but this evidence did not vary from, but rather corrob- orated that given by the other witnesses at the former trial. 1. In August, 1802, a jury of inquiry assessed the damages of the plaintiff at $500. NOTE Verdict against law and evidence Ujntr}/. Where the verdict is manifestly against law a new trial will be granted. Hall v. Downs, Brayt ( Vt.), 168 ; Dillingham v. Snow, 5 Mass., 547 ; Cunningham v. Magoun, 18 Pick., 13 ; Thomas v. Brown, 1 McCord ( S. C.T, 557 ; Cresman v. Caster, 2 Browne ( Pa.), 123 ; U. 8. v. Duval,Gilpin,356; Brock v. Garrett, 16 Ga., 487 ; Martin v. Matfleld, 49 Call., 43. Where a verdict is clearly against evidence a new trial irttt he granted. Gantzinger v. Weightman, 2 i Cranch C. C., 478 ; Wilson v. Jones, 3 Blatchf ., 227 ; j Lyle v. Rollins, 25 Cal., 437: Cook v. Jones, 28 Ga., i 589; Goulden v. Lawrence, 33 Ga., 159; Clement v, ! Bushway, 25 111., 200; Henry v. Eddy, 34 111., 508; JOHNSON'S CASES, 3. 1802 WILKIE v. ROOSEVELT. 206 As the case is important, in respect to the statute against usury, as only three judges were on the bench when the first motion for a new trial was argued, and as a difference of opinion existed among them, it may be useful, particularly in regard to the power exercised by the court in granting new trials, to state the judgment of the court, after the second argument, on a motion for a third trial of the cause. The motion was argued by Messrs. Jones and Hamilton for the defend- ant, and Messrs. Golden and Hoffman for the plaint- iff. THOMPSON, J. Two questions, arising out of the above case, present themselves for the consideration of this court. 1. Whether this note was given for a usuri- ous consideration. 2. If so, whether the court ought again to interfere and grant a new trial. Usury consists in extorting or taking a rate 2O 7*] of interest *for money, beyond what is allowed by law. It is not necessary that money should be actually advanced in orfler to constitute the offense of usury, but any pre- tense or contrivance whatever to gain more than legal interest, where it is the intent of the parties to contract for a loan, will make that contract usurious. It is admitted that the parties to this suit are innocent, and that Edward Wilkie paid a valuable consideration for the note. This, however, cannot affect the present question, for if this note was given upon an usurious con- tract it is absolutely void, even in the hands of an innocent person, who may have taken it in a fair and regular course of trade without any notice of the usury. If the contract was usurious in its inception, no subsequent trans- actions will cure it ; but if the original con- tract was not usurious, nothing done after- wards could make it so. Taking these principles as settled, how stood the fact in this cause, as applicable to them? From the facts, as stated in the case, there can be no doubt but the note in question is the same note which Mark & Co. executed, and which was indorsed by James I. Roose- velt, and delivered to Charles W. Goodrich. That being the case, the note was given for the sum of $1,366.66, payable in ninety days. It appears evident, also, from the testimony of Goodrich and Mark, and from the account, or memorandum that was kept of their money . concerns, that Mark & Co. were credited only for the sum of $1,244, on account of that note. There can be no doubt, then, that the interest or premium allowed in this transaction was $122.66, which is a rate of interest far beyond what is allowed by law. These facts are strongly fortified by the circumstances that Mark & Co. were much in want of money, and that about the time when application was made for the money, and the note given, Goodrich told Mark the rate of *interest would [*2O8 be higher than usual, and more than two per cent, pfer month was mentioned. If , therefore, these witnesses are to be credited, there cannot remain a doubt but that this was an usurious contract. The application to Goodrich was for the purpose of loaning some money to answer present exigencies, and the whole transaction shows that it was a borrowing and lending, between Mark and Goodrich, and that the manner in which the business was conducted was for the purpose of concealment, and to evade the statute. Proof of usury generally depends on circumstances, and where those circumstances are so strong as to produce absolute conviction in the mind, they are certainly entitled to as much weight a"s direct and positive testimony. Although I consider Mark as an incompetent witness, yet his testimony must be taken into consideration, in deciding the present question ; for to reject it now would be depriving the party of an op- portunity of proving the same facts by other witnesses, if in his power to do it. I come now to the second point, to wit, whether this court ought to interfere and grant a new trial. The granting of new trials is matter of sound discretion in the court, under all the circumstances of the case. It is, State v. Miller, 10 Min., 313; Wells v. Waterhouse, 22 Me., 131; Garlies v. Little, 14 N. J. L., 373; Yale v. Yale, 13 Conn., 185; Wait v. McNeil, 7 Mass., 261; Curtis v. Jackson,13 Mass., 507 ; Tilley v. Spaulding-, 44 111., 80 ; Toledo, &c., Ry. Co. v. Godriard, 25 Ind., 185 ; Bondrean v. Bondrean, 45 111., 480; Booth v. Small, 25 la, 177; Clark v. Whitaker, 19 Conn., 319; Marble v. Bouhotel, 3o 111., 240 ; Crofts v. Plumb, 11 Wend., 143 ; Holmau v. Dord, 12 Barb., 336 ; Mann v. Witbeck, 17 Barb., 388 ; Breese v. State, 12 Ohio St., 146; McAfee v. Robertson, 41 Tex., 355; Halpin v. Third Av. Ry. Co., 40 N. Y. Sup. Ct., 175; Mills v. Scott, 99 U. S., 25 ; A. T. & S. F. Ry. Co. v. Maher, 23 Kan., 163; Darling v. West, 51 la., 259. To justify a new trial, the verdict should be decid- edly against the weight of evidence. McDuffie v. Stewart, 30 Ga., 6(51 ; Chicago, etc., Ry. Co. v. Hutch- ins, 34 111., 108; Havelick v. Havelick, 18 la., 414; State v. Collins. 20 la., 85 ; Browning v. State, 33 Miss., 47 ; Johnson v. Blanchard, 5 R. I., 24 ; Baker v. Bonesteel, 2 Hilt. (N. Y.), 397 ; Warren v. Cummings, 37 Wis., 81; Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415 ; Miller v. Citizens', etc.. Ins. Co., 13 W. Va., 116 ; Clark v. Hatfleld, 88 111., 440 ; McNeill v. Ross, 44 Wis., 539 ; Tolford v. Tolford, Wis,, 547 ; Phyfe v. Masterson, 45 N. Y. Super. Ct., 338 ; Buck v. Steffey, 65 Ind., 58 ; Lennon v. Goodrich, 89 111., 438 ; Blake v. McMullen, 91 111., 32 ; Allen v. Wheeler, 54 la., 628. A second or subsequent new trial will not be granted JOHNSON'S CASES, 8. without the clearest conviction of error. Eastman v. Wight, 4 Ohio St., 156 ; Gibson v. Hill, 23 Tex., 77 ; Coffin v. Newburyport Marine Ins. Co., 9 Mass., 436 ; Barrett v. Rogers, 7 Mass., 297 ; Fowler v. yEtna Ins. Co., 7 Weiid., 270; Dorsey v. Daughwty, 1 A. K. Marsh, ( Ky.), 182 ; Carlin v. Chicago etc. Ry. Co.. 37 Iowa, 316 ; Emery v. Hawley, 1 Wyo. Tcr., 303. Verdict without evidence not permitted to stand even after three trials. Lodge v. Railroad, 10 Phila. (Pa.), 153. A. conflict of evidence doe* not justify a new trial. Newell v. Rush, 23 Ind., 210 ; Pilmer v. State Bank, 19 Iowa, 112; Dixon v. Merritt, 6 Min., 160; Lisbon v. Bath, 23 N. H., 1; Easterly v. Cole, 1 Barb., 235; People v. Townsend, 37 Id., 520 ; Marble v. Fay, 49 CaL, 585 ; People v. Simpson, 50 Id., 304 ; Thompson v. State, 55 Ga., 47; O'Shields v. State, Ga., 696; Clifford v. Luhring, 69 111., 401 ; Kightlinger v. Egan, 75 111., 141 ; Miller v. Bathasser, 78 111., 302. But see Chicago, etc., Ry. Co. v. Stumps, 69 111.. 409. Usury. As to security usurious in its inception, see Jones v. Hake, 2 Johns. Cas., 60, and note in this edition. As to security not usurious in its inception, con- cerning which a subsequent usurious agreement was made, see Bush v. Livingston, 2 Caines' Cas. , 66, and note. As to when usurious notes are void or voidablt, see statutes on the subject. 671 SUPREME COURT, STATE OP NEW YORK. 1802 undoubtedly, for the furtherance of justice, that the powers of the court, and the powers of the jury, should be confined within their proper limits. That the jury should be the triers of the fact, and the court judges of the law. And although, after two verdicts, the court will proceed with the utmost caution and deliberation in granting another trial, yet when the verdict is against law, there can be , no question as to the right of this court again to interfere, and I think there can be but little doubt as to the duty of the court to exercise that right. I do not consider this as one of those cases where the rigorous execution of extreme legal justice is hardly reconcilable to conscience, and that on that ground the court ought not again to grant a new trial. If the 2OO*] statute against *usury is an uncon- scieiitious defense, or the law impolitic, it is the province of the Legislature to repeal it. But as long as it remains in force, it is the indispensable duty of a court and jury to carry it into effect. And from an attentive examin- ation of all the circumstances of this case, I cannot discover any plausible grounds the jury could have taken in giving their verdict, con- sistent with the law arising from the facts. Considering, therefore, the verdict as both against law" and evidence, I am of opinion that A new trial ought to be granted. RADCLIKF, /. This is an application to set aside a second verdict obtained by the plaint- iff, on a note alleged to be usurious. The facts stated in the present case are sub- stantially the same as appeared on the first trial, and on which a new trial was awarded. The witnesses are the same, except that Jacob Mark was examined on the second trial, instead of his clerk ; and if there be any difference in the effect of their testimony, it is that Mark supports the other proof to establish the usury more fully than his clerk. On this, as on the former occasion, there is no doubt, on the evidence, as to the fact of usury. The proof is direct and complete, and if the principles heretofore adopted by the court in this cause and in the case of Jones v. Hake (2 Johns. Cases, 60) be correct, there is no doubt of the fact of usury. There exists no con- 1 trariety of evidence on which the mind can balance. The charge of the judge, at the last trial, as applied to the evidence, was also explicit in favor of the defendant, and I, therefore, think it unnecessary to express an opinion as to the other points suggested in it. The only question is, whether in a case of usury, after two verdicts, where no opposite testimony appears, the verdict of the jury ought to prevail against the law and evidence. I consider it as a verdict against law as well as evidence, for where the facts are fully and 21O*] satisfactorily *proved, and no contro- versy exists respecting them, the decision upon them must be a decision of law as much as upon a special verdict. In setting aside the former verdict, and in the case of Jones v. Halce, we have already determined that the nature of this defense is not a reason for submitting implicitly to the verdict of a jury. Without expressing an opinion as to the expediency of the act in question, or as to the morality of the trans- 672 action, or of this defense, we have considered ourselves controlled by the statute, and not at liberty to say this is one of those cases of hard- ship and unconscientious defense, in which if a party has succeeded in obtaining the verdict of a jury, we will not interfere to disturb it. The Legislature have considered the practice of usury as an evil ; they have declared it unlawful and corrupt, and have anxiously provided every guard in their power against it. After this expression of their sense, I cannot think myself authorized to view it in a differ- ent light, or to permit a statute intended by them as an important regulation of public policy, to be evaded or controlled, on the idea that its provisions are unjust or uuconscien- tious. I therefore consider this defense as standing on the same ground with any other arising on a question of property, and subject to the same rules ; and I can see no cause for the apprehension, that to award another trial, under the circumstances of this case, would in any degree interfere with the privilege of trial by jury. I am inclined to respect that privi- lege as highly as any of its advocates, but to preserve that mode of trial in its purity, and to maintain the confidence which it ought to possess, it is necessary to direct it to its proper objects, and to restrain the license of juries, when they step out of their province, and undertake to decide the law, in opposition to the opinion of the court and to a positive statute. If this were not the case, judges, instead of being judges of law. would become mere chairmen of forms, or *at best [*2 1 1 advisers of juries, and the latter would finally determine the law on every subject. The fluctuations and evils attending such a system would be incalculable ; and could not be toler- ated in any country. It is sufficient to say that such is not our system. As a court, we are bound to administer justice, according to law, and when we see the law manifestly evaded, it is our duty to correct the evil. In the present case there is no doubt of the facts. In contemplation of law they present a case of usury. Being clearly of this opinion, for the reasons given on setting aside the former ver- dict, I think this verdict ought not to prevail any more than the first. On the trial, an objection was made to the incoinpetency of Mark, one of the witnesses, and who was one of the makers of the note, on the ground that he could not be admitted to impeach its validity in the hands of any other person. This objection has been con- sidered as valid in the case of Winton v. Saidler (ante, p. 185), decided in the present term, and the witness must, therefore, now be considered as incompetent. But what he has said does not, in any degree, vary the merits of this cause. The testimony of Goodrich is full and complete on the subject, and he is not opposed by any other evidence. I am, there- fore, of opinion, there ought to be another trial. KENT, J. This is the second application for a new trial in this cause. A verdict was formerly obtained for the plaintiff on testi- mony to the same effect as that contained in the present case, and a new trial was awarded, at the last January Term, because the verdict JOHNSON'S CASES, 3. 1802 JACKSON, EX DEM. GOMEZ, ET AL. v. HENDRICKS. 211 was clearly against evidence. I was of opin- ion in that case, that Goodrich was to be con- sidered the lender of the money, and that the evidence of usury, between him and the drawer of the note, was decisive and unequivocal. The testimony in the present instance is certainly as strong as it was on the former 212*] occasion, and the question *now is, whether there be any reasonable evidence at all in support of the verdict ; or whether we are to consider the verdict as the result of the prejudice of the jury against the defense, and of their determination to resist it. I admit that if Goodrich, when he passed the note to Peck, acted merely as agent of the drawers, and passed the note as belonging to them, and not as his own property, there was no usury in the case; because it is stated that Peck settled with him for the amount of the note. But I do not conceive any reasonable color for such a construction. Goodrich states that he received the note to be discounted, and that the proceeds were to be applied in pay- ment of money lent by him to the drawers. Goodrich, therefore, received the note for his own use and benefit, and he passed it to Peck as his own property. The amount of it was settled between them. There is no intima- tion, no conduct, from which to infer that he acted as agent. In the account ren- dered by him to the drawers, the note is charged by him to them, and they are credited with the proceeds of it. In fact, Goodrich charged them with an interest, at the rate of about three and one half per cent, per month. The clear truth of the case is that Goodrich took the note, as he states, in payment of money lent, and was. to charge them with such an interest for the money advanced, by way of discount on the note, as his conscience should allow him to take, provided, however, that it was not to exceed such a rate of inter- est, for he says he was limited in the allow- ance of discount. I cannot avoid seeing and believing that this was a usurious transaction between Goodrich, as the lender, and Mark & Co. as borrowers of the money. The defend- ant who indorsed the note only lent his name by way of accommodation. The negotiation was, directly and wholly, between Goodrich and the drawers. If a case of such palpable 213*] usury as this is not within *the act, or if a jury will not listen to a plea of usury sup- ported like the present, there is an nd to the statute. It had better be formally repealed, for it would be a dead letter. I am perfectly satis- fied that if the jury had thought the defense a just and honorable one, they would not have hesitated in finding for the defendant, and shall we permit hostility to the law to triumph? On this question I have no hesitation; and thinking, as I do, that on the issue between the parties, there is no ground at all for the verdict, and that it is a verdict absolutely against law, I am for granting a new trial. (4 Burr., 2108, 1 Term Rep., 170, 171.) I put out of view every consideration drawn from the hardship of the case; as that the plaintiff is an innocent holder, and the defense summumjus and contrary to good faith. This might, and would deserve weight, if the case was doubtful; if there was evidence on both JOHNSON'S CASES, 3. N. Y. REP.. BOOK 1. sides; if we could believe that the jury delib- erated with a steadfast and single eye to the credibility of the testimony, and the just con- clusions to be drawn from it, and did not suf- fer the policy of the statute to mingle with their deliberations, and to influence their judgments. But if a statute be constitutional m its provisions, and clear and precise in its injunctions, the courts are bound to see it res- pected and obeyed. It is not for them to ar- rest its operation, merely because they question its policy. There is no ground to disbelieve the testi- mony of Goodrich, who discloses the whole transaction fully; and as to the identity of the note, I cannot see any possible doubt. I am for a new trial, and that without costs, as I consider this a verdict against law. LEWIS, Oh. J., and LIVINGSTON, J., dis- sented. New trial granted. Cited in 15 Johns., 56. *JACKSON, ex dem. GOMEZ ET AL., [*214 v. HENDRICKS. SAME, ex dem. SAME, v. MARMET AND HENDRICKS. Feme Covert Seizin Death Descent Sus- pended Tenant by Gurtesy Inheritance Stock of Descent Statute of Descents. A, a /erne covert, died seized of lands, in June, 1795, leaving a husband and two sons and three daugh- ters. The husband continued seized, as tenant by the courtesy, until his death, in 1798. B, the eldest son, died abroad, in 1784, an infant intestate, and without issue. C, the other son, on the death of his father, entered as heir to his mother. It was held, that the descent was suspended during the tenancy by the courtesy, and that A, being last seized, was the stock of descent ; and as she died be- fore the statute of descents, .0, the second son, took the inheritance, as sole heir to his mother. were actions of ejectment. The J_ causes were tried at the last June sittings, in New York, before Mr. Justice Radcliff, when verdicts were taken, by consent, for the plaintiffs, in each cause, for three undivided seventh parts of the premises in question, sub- ject to the opinion of the court, on the following case. Esther Hendricks died seized of the premises in question, in June, 1775, intestate, leaving a husband and two sons and three daughters. Mordecai was the oldest, and Haman, the defendant, the second son. The daughters were married and with their husbands were lessors of the plaintiff. The husband of the intestate was seized, dur- ing his lifetime, as tenant by the courtesy, until his decease, on the 27th September, 1798. On his death, Haman, one of the defendants, en- tered as heir-at-law to his mother, and con- tinued to hold against his sisters, the lessors, and the other defendant was his tenant. Mor- decai, the eldest son, died at the age of thirteen, intestate, and without issue, in March, 1784, 43 673 214 SUPREME COURT, STATE OF NEW YORK. 1802 having been, for several years, previous to and at the time of his death, out of the United States. Mr. Hoffman for the plaintiff. Messrs. Ha/rison and Riggs. contra. Per Curiam. The statute of descents does not apply to these cases ; and it expressly de- clares that in all cases not mentioned in it, the common law shall govern. In the case of dower, and by the courtesy, the descent is sus- pended during the continuance of those es- 215*] tales, and the *heir is not seized, so as to form a new stock of descent, or to consti- tute a possessiofratris, Esther Hendricks died in 1775, and her husband continued in pos- session, as tenant by the courtesy, until 1798. 674 Mordecai, the eldest son, died while an infant,, abroad, and before entry, fourteen years before the death of his father, and so not being seized he could not transmit the inheritance. Hi& mother was the person last seized, from whom the defendant must claim an immediate de- scent. She, nor her eldest son, Mordecai, is the stock of descent. The inheritance relates back to her, and as she died before our statute of descents was passed, the defendant became her sole heir. In both cases, therefore, there must be judgment for the defendants. 1 Judgment for the defendants. Cited in 16 Johns., 99 ; 2 Den., 25. 1. See Watkins on Descents, 65, 66, 67, 85, 110, 118,. 123 ; Litt. sec. 394 ; Co. Lltt., 41. b ; 7 V iner, 568, E 2 ; Gilb. Tenures, 15, 16. JOHNSON'S CASES, 3. [END OF JULY TERM.] CASES ADJUDGED SUPREME COURT OF JUDICATURE OP THE STATE OF NEW YORK, OCTOBER TKRM, 1SO2. 217*] *LAWRENCE THE NEW YORK INSURANCE COM- PANY. 1. Marine Insurance Partial Loss Calculation of Rule. 2. Id. Fluctuations of the Market Freight Duties Port Charges. The rule by wlfich to calculate a partial loss, in case of a policy of insurance on goods, arising from sea damage, is the difference between the gross pro- ceeds of the sound and damaged ; that is, a propor- tion of the prime cost of the damaged goods corre- soonding to the proportion of the diminution of the gross proceeds thereof. The insurer on goods has nothing to do with the fluctuation of the market, or the freight or duties and port charges on the goods after their arrival at the port of destination. Citations 2 Burr., 1167 ; Burns on Ins., 166 ; Park, 53 ; Burns on Ins., 154, 167 ; Abbott, 292. was an action on a policy of insur- ance on the cargo of the brig America, on a voyage from New York to Cadiz. The cargo, which consisted of logwood and tobac- co, cost, in New York, $8,189.50; $8,000 was insured thereon by the defendants. During the voyage to Cadiz, thirty-eight hogsheads and three tierces of the tobacco (which cost, in New York, $3,361.81) were damaged by sea- water. If the thirty-eight hogsheads and three tierces had arrived at Lisbon undamaged, they would have sold for $4,971.55 ; and the freight of them would have been $971 ; but, on account of the damage they had sustained, they sold, at Cadiz, for no more than $921.86. The jury found a verdict for the plaintiff, subject to the opinion of the court as to the 218*] amount of damages *to be recovered, on the following question, whether the insured ought to receive from the insurers a propor- tion of the prime cost of the damaged to- bacco, corresponding to the proportion of the diminution of the net proceeds of the same article, in consequence of the damage, or whether he ought to receive a proportion of the prime cost, corresponding to the propor- tion of the diminution of the gross proceeds of the sale ? If the court should be of opin- JOHNSON'S CASES, 3. ion that the loss ought to be calculated upon the net proceeds, then the jury found the damages to be $3,443.60 ; but if the court should be of opinion that the loss ought to be calculated upon the gross proceeds of the sale, then the jury found the damages to be $2,530.06. Mr. Hamilton for the plaintiff. Mr. Hoffman, contra. THOMPSON, J. The different modes of cal- culation adopted by the parties in this cause, produce very different results. Although the decision is of consequence, as it respects the event of this cause, yet, in many other points of view, it is of more importance that the principle should be settled, than which way it is determined. Although no case is to be found wherein the question has immediately and directly come under consideration, yet I think principles have been settled, which, if we adopt, will require that we take the gross produce of the sales, in order to make the cal- culation of the average loss. The mode of calculating an average loss, as laid down in the case of Leiris v. Rucker, (2 Burr., 1,167), a'nd which is admitted to be the true rule, is, "to take the proportion of the difference between the price of the sound and the damaged articles at the port of deliv- ery ; and for the insurer to pay that propor- tion upon the value of the goods specified in *the policy." Although in that case it [*21i> is not expressly stated whether the calcula- tion was made upon the gross or net pro- ceeds, at the port of delivery, yet I think it is fairly to be inferred, from the sum stated, that it was made upon the gross proceeds. It is there said that the price of the damaged sugar was twenty pounds per hogshead, and of the sound twenty-three pounds per hogshead, and on these sums the proportion of the prime cost was ascertained. It is here partic- ularly to be noted that the term price is made use of. In mercantile language there is a material difference between the terms "price" and "value." In the case of Johnston v. Shed- don (Burns on Insurance, 166), Mr. Oliphant, a 675 219 SUPREME COURT, STATE OF NEW YORK. 1802 very respectable merchant examined on the trial, recognizes this distinction, and says that " value " is what comes net into the merchant's pocket ; and by "price," I presume, from what he says, he meant the gross sum for which the goods sold. Thence, I infer, that if the net proceeds were to be taken as the standard, the language of the rule in Lewis v. Rucker would have been, that you must take the difference between the "value" instead of the "price" of the sound and damaged goods, &c. The contract of insurance is a contract of indem- nity, and the underwriters never ought to be made liable to pay more than a total loss. To adopt the rule contended for by the plaintiff's counsel, would, I think, produce that result ; for the damaged tobacco sold at Cadiz for $921.- 86, and the freight and charges upon it amount- ed to $971. The prime cost of the tobacco in New York was $3,361.81, and the loss which the underwriters are to pay, by the plaintiff's mode of- calculating, is $3,443.60, which is $81.79 more than the total logs. Thus the underwriters are in a worse situation than they would have been had the whole of the damaged tobacco been thrown overboard. No rule that produces such consequences can, in my judgment, be correct. 2 2O*] *It is laid down (Park, 53) that, as between the owners of the goods and the un derwriters upon the cargo, the underwriters havs nothing to do with the freight. Where the loss is total no freight is due ; but, as be- tween the owners of the ship and cargo, no loss is total where part of the property is saved. In the present case, then, freight would be due, and to take that into view in the calculation, would be making the under- writer on the cargo indirectly answerable for the freight, which would be contrary to his engagement by the policy. In the case of Johnstone v. Sheddon, the wit- ness, Mr. Oliphant, who settled the average, professed to pursue the rule laid down in Lewis v. Rucker, and although the case is im- perfectly reported, yet, from what can be col- lected from it, and from what fell from Lord Kenyon, I am inclined to think the rule there adopted, was to take the "gross price of the sound and damaged goods in order to settle the average. Lord Kenyon .says the damaged and sound goods must be taken free from the duties, in order to make the calculation, and puts it on the same footing as if the goods had been sold on board the vessel, before any duties or charges had accrued. On the whole, I am of opinion that the underwriters ought to pay a proportion of the prime cost of the dam- aged goods corresponding to the proportion of the diminution of the gross produce of the sales. The other mode of calculation appears to me to be making the underwriters upon the cargo indirectly answerable for the freight, duties and charges, with which they have nothing to do by the terms of the contract ; and more especially, because it would, in many instances, and certainly in the case now before the court, make the underwriter pay more than a total oss. LIVINGSTON, 7. and RADCLIFP, J., were of the same opinion. 221*] *KENT, J. The plaintiff ought to 676 recover a proportion of the prime cost of the damaged tobacco, corresponding to the pro- portion, of the diminution of the gross pro- ceeds thereof. In the case of Lewis v. Rucker (2 Burr., 1167), it was settled, that the insurer was to pay on damaged goods the like propor- tion of the sum at which they were valued in the policy as the price of the damaged goods bore to the price of the sound goods at the port of delivery ; but the distinction between the net and gross proceeds, at the port of de- livery, was not then expressly raised or con- sidered. Afterwards, in the case of Johnstone v. Sheddon, which was tried before Lord Ken- yon, at Nisi Prius (see Burn on Insurance, 154, 167), the damages, in a case like the present were liquidated according to the calculation of a Mr. Oliphant, who said he went upon the principles laid down in Lewis v. Rucker, and determined the damages by what come net into the pocket of the plaintiff from the dam- aged goods, compared with what he would have received net, if they had been sound, and taking such a proportion as they bore to each other, out of the sum insured. He observed, further, that the loss sustained by the duty being the same on the damaged as the sound, was a certain effect of the damage, and ought to be made good by the insurer ; and that he had been in the constant habit of settling av- erage losses. Lord Kenyon observed that the ground on which Mr. Oliphant went was ex- tremely clear. This nisi prius decision is in favor of taking the net proceeds, at the port of delivery, and those are 'all the cases to be met with, that look toward the question. A dictum of a late very accurate writer, seems, however, to intimate an opinion in favor of the gross proceeds. The mode of settling a contribution to a general average, says Abbott (p. 292), in cases where the average is adjusted *after the [*222 ship's arrival at the place of destination, is to value the goods at the clear price which they would have fetched at the place of destination ; for, in this case, equity requires that the per- son whose loss has procured the arrival of the ship should be placed in the same situation with those whose property had arrived, by considering his goods as having arrived there also. The clear price mentioned must be the same as the net proceeds ; and he then observes that this rule does not exist as between mer- chant and insurer, for there the prime cost is the only value, because the contract of insurance is a contract of indemnity against loss, and not a contract of security of gain. I think the calculation on the net proceeds cannot be the just rule, because it may lead to this result, that the net proceeds exceed the prime cost. Thus, from the facts stated in the present case, it appears that the prime cost of the damaged tobacco was $3,361.81 ; and that calculating the loss upon the net proceeds, the insurer is to pay $3,443.60, or $81.79 more than the prime cost. This, on the first view of it, must be an erroneous rule, since it is the prime cost with the duties and expenses till the goods are put on board, that is to be the standard of the indemnity of insurance. "If goods arrive," says the case of Lewis v. Rucker, "lessened in value by damage received at sea, the nature of an indemnity speaks demonstra- JOHNSON'S CASES. 3. 1802 LENOX v. THE UNITED INSURANCE COMPANY. 222 bly, that it must be by putting the insured in the same situation (relation being had to the prime cost or value in the policy) which he would have been in if the goods had arrived free from damage, i. e., by paying such pro- portion or aliquot part of the prime cost or value in the policy, as corresponds with the proportion or aliquot part of the dimunition in value, occasioned by the damage." It is impossible, then, from the result found in this case, that only a due proportion of the value in the policy has been preserved, by the calcu- 223*] lation on the net *proceeds. If so, the insurer is in a worse situation than he would have been in if the damaged tobacco had been totally lost at sea. A rule with this conse- quence can never be right. This net amount must have been produced by including port charges and freight ; and such charges ought not to fall on the insurer upon the cargo. It must have embraced expenses for which the insurer is not responsible ; and although I do not know exactly the data on which it was formed, I am satisfied that it is turning the policy into a security for gain, or covering charges not within the indemnity. I am, therefore, for the calculation on the gross proceeds. LEWIS, Gh. J. , was of the same opinion, and delivered his reasons at length, and showed, by various calculations, that if the net pro- ceeds were taken as the rule, the insurer on the goods would have to indemnify for freight, port duties, &c., which could not be right. Per totam Curiam, according to that opinion. Judgment far the plaintiff .* 224*] *LENOX v THE UNITED INSURANCE COMPANY. Marine Insurance Loss Time of Payment Capture Abandonment Preliminary Proof Sufficiency of. A policy of insurance on goods contained a clause that the loss was to be paid " thirty days after proof thereof." The property having been captured, the insured abandoned, and as proof of the loss and in- terest, laid before the insurers the protest of the master, in the usual form, stating the loss, and the bill of lading and invoice. This was held to be suffi- cient preliminary proof, within the meaning of the policy, to entitle the plaintiff to bring his action after the expiration of the thirty days. Strict technical proof, or the oath of the party or of wit- nesses, is not requisite in such case. 1. The case of Johnstone y. Shedden, tried before Lord Kenyon, at IV. P., and cited in the above cause, afterwards came before the Court of King's Bench, who overruled the decision of Lord Kenyon, found- ed on the net proceeds, and decided (July, 1802) that the calculation of the partial loss must be made be- tween the gross proceeds of the sound and damaged g-oods. This decision was made by Lawrence, J., Grose, J., and Le Blanc, J., Lord Ellenborough, Ch. J., who had succeeded to Lord Kenyon, giving no opinion, as the case was argued before he came to the bench. (2 East, 581.) This decision, however, was not known here, until after judgment was given in the above cause. JOHNSON'S CASES, 3. Citations Cro. Eliz., 236 : Cro. Jac., 381 ; Hob., 92 ; 1 Lutw., 665 ; 3 Bulst., 55 ; 1 Bulst., 40 ; Cro. Jac., 488 ; 2 Keb., 239 ; Hob.. 217 ; 3 Esp., 242 ; 2 Dallas, 280; 3 Esp. Cas., 242 ; 3 Bulst., 84 ; Palm., 166 ; 2 Ball., 282. THIS was an action on a policy of insurance, dated the 13th March, 1800, on three boxes of muslins, on board of the vessel called the Rambler, at and from New York to Monte Christe, &c. The goods were valued at $2,- 610, the sum insured. The vessel was capt- ured by the French, during the voyage, and the plaintiff abandoned for a total loss. By the policy, the loss was made payable "thirty days after proof thereof." The plaintiff, at the time he abandoned and claimed a total loss, exhibited to the defendants the custom- ary protest of the master, stating the loss, and the bill of lading and invoice of the goods. The two latter were not sworn to, and the de- fendants refused to admit the invoice, without the oath of the plaintiff, which he declined to give, as not requisite on his part. At the trial the interest, loss and abandon- ment were fully proved by the plaintiff, and the jury found a verdict for the plaintiff, for a total loss. A motion was made to set aside the verdict, and for a new trial. Mr. Hamilton for the plaintiff. Messrs. Harison and Troup. contra. THOMPSON, J. The true question arising out of the above case, and which is submitted to the decision of the court, appears to be, to determine what is the construction to be given to that part of the policy which declares, ' ' that the loss is made payable in thirty days after proof thereof." On the part of the de- fendant it is contended, that proof of loss is a condition precedent ; that the plaintiff com- menced his action prematurely, without pro- ducing to the underwriters the kind [*225 of proof contemplated by the policy ; that the proof previously necessary to be exhibited must be proof of interest as well as loss, and that by witnesses, or at least by the oath of the party himself. In the present case, no such proof was offered before the. commence- ment of the plaintiff's action. The evidence of loss and interest exhibited to the defend- ants, consisted of the customary protest, and the bill of lading and invoice of the muslins ; but the bill of lading was not sworn to. On the part of the plaintiffs, it is contended, that these were all that were necessary to be offered in order to satisfy the terms of the contract. It is a governing rule, in expounding poli- cies of insurance, as well as other contracts, that the intent of the parties ought to be sought after and carried into effect, where it can be discovered from the instrument itself. Proof, in strict legal construction, means evi- dence before a court or jury, in a judicial way. It is certain, however, that such could not have been the understanding of the parties to this contract, as to the meaning of the term. And it was not contended by the defendants' counsel that such kind of proof was contem- plated, but that proof collateral, and out of court, would satisfy the terms of the contract ; that this proof must be either by witnesses, or by the affidavit of the plaintiff. 677 225 SUPREME COURT, STATE OP NEW YORK. 1802 The parties to a contract have undoubtedly a right to modify it as they think proper, and to impose on each other such restrictions as they shall choose, if not illegal. So that, if it was clearly inferrible from the instrument that it was the intent of the parties that before the loss was payable, proof by witnesses, or by the oath of the party, of both loss and interest, must be exhibited to the underwriters, the contract ought to be so construed as to carry that intention into effect. But I think the terms do not necessarily warrant such an in- ference, and all rational presumption is against such conclusion. It is not fairly to be presumed that the plaintiff would lay himself under 226*J Restrictions that might totally prevent a recovery in case of a loss ; and such might be his situation in case it was necessary for him to produce proof by witnesses, of his inter- est and loss, before he could bring his action, as no mode is provided in the law to compel witnesses to appear before any officer or magis- trate to attest to such facts. Although it was in the power of the plaintiff, by his own affi- davit, to attest to his interest, yet, in my judg- ment, that ought not to be required, unless it was essential, in order to satisfy the terms of the contract. And although I do not think it nec- essary, for the purpose of deciding the pres- ent question, to determine how far voluntary oaths ought to be tolerated, yet I do not hesi- tate to say, they ought, very rarely, if ever, to be administered. It is a circumstance worthy of notice, that by this policy, the loss is made payable in thirty days after proof of loss only, and not after proof of loss and interest ; and although on the trial it is incumbent on the insured to prove his interest as well as loss, yet he would be bound to do this, independent of this clause in the policy. This is a clause peculiar to our own policies, and I cannot think it ought to receive a construction that will impose on the insured the necessity of producing the same that would be requisite on proof preliminarily, the trial, to entitle ting, therefore, that proof necessarily implies evidence, under oath, still, as to loss (which is all that is expressly required by the policy), the protest of the captain furnishes that spe- cies of proof. It was stated in argument, by the plaintiff's counsel, and not denied by the defendants, that policies had lately undergone an alteration in this clause. That formerly the loss was made payable in so many days after proof of loss and interest, but that lately the word interest had been expunged. Tak- ing this, then, as a fact, it would afford a strong inference that it was the intention of the parties to dispense with any proof of in- 227*] terest, as a *preliminary step under this clause ; at all events, that nothing more should be required than the usual documents, to wit, the invoice and bill of lading. The in- terest of commerce, as well as the convenience of parties, demands this construction, unless forbidden by the terms of the contract, and more especially as the clause is peculiar to our own policies. One of the principal objects of this clause, no doubt, was, to give the un- derwriters time to determine, after being ap- prised of the loss, whether they would pay without a suit ; and for the purpose of fur- 078 nishing them with evidence on which to ground their determination, they ought to have offered what may afford them a reason- able satisfaction, according to the course of mercantile business. I am. therefore, of opin- ion, that the documentary proof, to wit, the protest, bill of lading, and invoice of the goods insured, were all the preliminary proofs nec- essary for the plaintiff to exhibit to the un- derwriters, previous to his bringing his action, according to the legal import and true intent and meaning of this clause in the policy ; and more especially, in the present case, as it is stated, that the plaintiff's interest and loss were fully proved on the trial, and the only possible benefit resulting to the defendants from the contrary construction, would be to turn the plaintiff round to bring a new suit. This con- sideration ought not, however, to influence the decision, if it was clearly made necessary by the contract, that the preliminary proof should be different from that offered. But as I do not think that requisite, I am of opinion, the verdict ought not to be set aside. RADCLIFF, J. The question is, whether by the terms of the policy, the plaintiff was ob- liged to make oath of his interest in the cargo before he was entitled to demand payment of the defendants. The proof required on this occasion was the plaintiff's own oath, and not proof by witnesses, or any other species of evi- dence. Proof in *general, in a legal [*228 sense, means proof by witnesses, and if it be contended that the defendants had a right, in this instance, to demand legal proof of the loss, thirty days before bringing the action, that proof ought to have been by witnesses, or, at least, by some evidence which would be admitted in a court of justice, and not proof by the oath of the party. The contract does not require the oath of the party, and without such a provision in the contract, the policy of the common law will certainly not tolerate the principle that one party may impose on an- other the necessity of swearing to his right of action before he shall be entitled to recover. It is not competent to any one thus to judge his adversary upon oath. A party to a suit is not even bound to disclose the particular grounds of his action, or any fact of his de- fense, either directly or collaterally, except when he comes to ask a favor, and his con- duct is liable to suspicion, as on putting off a trial to an unusual period. If it could on any principle be allowed, I think the party de- manding it ought to be concluded by it, and not be permitted thus to entrap his adversary, by professing a reliance on his veracity, and afterwards disputing it. If, therefore, the terms of the policy admit of any other inter- pretation, we ought to adopt it, and, I think, they evidently admit of a different and more rational construction. The expression is gen- eral, "thirty days after proof of loss." It must be taken in connection with the subject matter, and according to the usual course of such proceedings. The loss itself is usually proved by the protest of the captain, and this, as far as it goes, is proof upon oath, and thus far the expression "proof of loss" may be technically proper ; and I believe that thus far only was proof upon oath originally con- JOJTNSON'S CASES, 3. 1802 LENOX v. THE UNITED INSURANCE COMPANY. 228 templated. As far as proof of interest may be required, independent of the captain's protest, I think it can only be construed to mean the usual documentary proofs attending the sub- ject, the bill of lading, invoice and other 229*] papers, if there be any. *These sat- isfy the terms of the expression, granting that proof of loss also implies proof of inter- est, which may admit of some question. The parties in this case could not mean legal proof, which can only be taken in a course of legal proceeding. They plainly referred to a dif- ferent mode of proof, before the commence- ment of any legal process ; and I think could only have contemplated the production of that species of evidence which would satisfy a rea- sonable mind. They must have had in view the existing laws of the country to govern their contract, and could not mean that an ex- trajudicial mode of inquiry should be insti- tuted to obtain a new species of proof. Such a proceeding is unknown to the law, and wholly unauthorized. There is no tribunal before which such proof could be made, and no one authorized to examine or decide upon it. Indeed, I am strongly inclined to think that no magistrate has authority to take the proof required by the defendants. Mr. Justice Blackstone, in his Commentaries, says, that it is much to be questioned how far any magis- trate is justifiable in taking a voluntary affi- davit, in any extrajudicial matter, and we ought not to give a construction to this con- tract which would require a proceeding alto- gether novel, and in itself improper. The cases which have been cited on the argu- ment are extremely loose, and have established no certain rule on the subject. In the case of Tedcastle v. HollweU (Cro. Eliz., 236), the de- fendant covenanted to pay in one month after notice of the goods which might be embezzled by an apprentice, the same (the embezzlement) being sufficiently proved. Gawdy and Fenner, two of the justices, conceived the proof ought to be before action brought by some collateral means, but in what manner, or by what means, they did not say, and the case was decided on -a different ground. In Gold v. Death (Cro. Jac., 381 ; Hob., 92 ; 1 Lutw., 665 ; 3 Bulst., 55), the covenant was 23O*] to pay in three months *after due proof thereof made by the confession of the apprentice, or otherwise howsoever, and notice thereof given. The court resolved that the proof intended was proof before action brought, which could not be by trial, but ought to be in such manner as it may ; and if made to the defendant, they said it ought to be only by witnesses who will affirm it before him ; and if to be made to J. S. (a third person) by wit- nesses produced before him ; and Dodderidge, J. , added, that the proof referred to, being the confession of the party, it was sufficient if he confessed it under his hand. The expressions, confession under his hand, witnesses produced before him, or who will affirm it before him, in the sense there used, do not imply proof upon oath ; and that case was decided on the ground of the party having confessed it under his hand, which was held sufficient. In Cockaine v. Goodlage (1 Bulst., 40), where the condition of a bond was to pay in three months after demand, and due proof made of JOHNSON'S CASES, 3. embezzlement by an apprentice, the court held that proof was necessary to be made three months before the suit was brought, and that it might have been proved by an account stat- ing the arrearages, &c. The case of Lee v. Fydge (Cro. Jac., 488), turned on a defect in the plea, and, at most, decided only that the mode of proof ought to have been set forth. In Tracy v. C'heshue (2 Keb., 239), the con- dition was to pay by a certain day, all such sums of money as should appear to be due. The court decided that by proof generally, is meant proof to a jury, and that there was no dif- ference between a condition to pay what is due and what shall appear to be due. In that case Twisden, J. , at first dissented, saying that proof by such a day cannot be by jury, and, therefore, may be by note, affidavit or other- wise, but he afterwards agreed with the rest of the court, on the general ground. There is nothing in that case in any way applicable to the one before us, but the dictum of Justice Twisden, the result of his first impression, *and which he afterwards relinquished [*231 as foreign from the point decided. In Crock/lay v. Woodward (Hob., 217), the court agreed, that where the form of proof was appointed by the parties, that should pre- vail, as in Gold's case above mentioned ; as if it were to be made by certificate in writing, or by witnesses before two aldermen, or the like, which proof could not be judicial. The case of Abel v. Potts (3 Esp., 242), re- lated to the competency of the proof of inter- est at the trial. In the case of Camberling v. M 'Call (2 Dallas, 280), there was no sort of proof offered before the action was commenced. None of these cases apply to the present, unless it be that of Crockhay v. Woodward, in which the court agreed to the general princi- ple that the form of pfroof appointed bv the parties should prevail, as if it were appointed to be made by certificate, or by witnesses be- fore two aldermen, or the like. It is a suffi- cient answer to say that in the case before us, the form of proof was not prescribed, and that the expression is after " proof of loss " gener- ally. But for the reasons already given, I should not be inclined to subscribe to the cor- rectness or authority of that case, in relation to the supposed proof by witnesses before two aldermen. That mode of proof appears to have been mentioned merely incidentally by the court, in reasoning on the subject, and was not distinctly considered. Upon the whole, I am of opinion, that there is no adjudged case which is decisive of the question before us, and that on principle and reason, and according to the usual course of such proceedings, the proof offered by the plaintiff was sufficient. KENT, J. The only question raised in this case is, whether the plaintiff produced to the defendants proof *of loss, before bring- [*232 ing his suit, sufficient to entitle him to recover? The plaintiff exhibited the protest, bill of lading and invoice. This species of proof has been aptly termed documentary evidence. The interest of the assured may be proved by such documents. The bill of lading is always received as a document of the goods laden on 879 232 SUPREME COURT, STATE OP NEW YORK. 1802- board, and in the present case, the authentic- ity of the handwriting of the master was not questioned. The protest is, in mercantile understanding, high evidence of loss ; and it may well have been intended by the parties, since the strict proof requisite on a trial was surely never within their contemplation. As long as the words of the policy can be satisfied, by furnishing the papers that were produced, we ought not to extend them so far as- to in- clude proof by the oath of witnesses, or the oath of the party, which seems to have been required in the present case. The law will not sanction an oath administered, at the instance of an individual, when there is not a lispcndens, unless there be a positive provision for the case. Many difficulties would arise under the construction that the parties intended proof by witnesses. These difficulties are avoided by confining the words to the vouchers respecting the property on board, and as to the loss, and such vouchers are to be furnished to the in- surer, not in the light of proof, technically considered, but as reasonable information or notice, upon which he is to act. Something analogous to this was the case of Abel v. Potts (3 Esp., Cases, 242), in which there was a memorandum in the policy, that the loss was to be adjusted within three months after advice of the loss. These words were liberally construed to mean not exclusively a direct notice from the insured, but the entry of the capture in Lloyd's books, with presumptive evidence that the insurers must have seen them, was held sufficient. 233*] *It is, perhaps, unnecessary to ex- amine the cases which were cited to show that a stipulation of the parties that proof by wit- nesses or the oath of the party should be fur- nished, would be a valid stipulation, because, for the reasons already given, the words in the present case can be sufficiently answered, with- out resorting to proof beyond the documents that were furnished. My present impression is against the validity of a stipulation, that a party shall not be entitled to sue and recover, on a just demand, until he shall have furnished the opposite party with proof, by the oath of himself or of witnesses ; and it appears to me, on examination, that none of the cases afford us a direct judicial decision to that effect. (See Tedcastle v. Holloway, Cro. Eliz., 236; Gold v. Death, Hob., 92; Cro. Jac., 381; 3 Bulst., 54, S. C.; Year Book, 10 Edw. IV., pi. 11., a dictum of two judges ; Palm., 166 ; 1 Bulst., 40 ; Cockainev. Goodlage, 2 Dall., 282.) None of them go further than dicta, or collater- al sayings, and none define the mode or man- ner of the proof. I wish, however, to be understood as not giving any definitive opinion upon that point, as it is sufficient to say that, in the present instance, the requisite proof was produced. I am of opinion, accordingly, that the plaint- iff is entitled to judgment. LIVINGSTON, J., dissented. LEWIS, Ch. J., not having heard the argu- ment, gave no opinion. Judgment for the plaintiff. 1 1. See Talcot v. Marine Insurance Company, 2 Johns. Rep., 130; Haff v. Marine Insurance Com- pany, 4 Johns. Rep., 132 ; Johnston v. Columbian In- 680 *JACKSON, ex dem. WOODHULL [*234r ET AL., n. RUMSEY. 1. Evidence Record of Will Proved Under the Statute Impeachment of Witt. 2. Witness Ejectment Competency Devisee. The record of a will proved under the statute (sess. 24, ch. 9, sec. 6), is not conclusive upon the heir, so as to prevent the admission of evidence to impeach its validity. The record of a will, like that of a deed, is only prima facie evidence of its authen- ticity. A person who was a tenant under a devisee of part of the estate devised, was held to be a compe- tent witness, in an action of ejectment brought by the heir against a tenant, who held part of the premises under the testator or devisee, and part under the witness, in order to impeach the validity of the will. Citations Rev. Laws, sess. 24, ch. 9, sec. 6 ; 2 Atk w 324, 424; 3 Atk.. 17; ante, p. 82; 3 Term Rep., 27; Peake's Evid., 105. THIS was an action of ejectment. The les- sors of the plaintiff proved themselves the heirs of Nathaniel Woodhull, who died siezed of the premises in question. The defendant then offered the record of a will of Nathaniel Woodhull, proved and recorded, agreeably to the statute, in the Court of Common Pleas of Orange County, and which was read in evi- dence to the jury. By this will, it appeared that Elizabeth Woodhull was the sole devisee of all the estate of the testator. The lessors, in order to prove that the testa- tor was non c&mpos at the time of executing the will, or that the will had been obtained by un- fair practices, offered Samuel Strong as a wit- ness. The witness was objected to, because it appeared that he was a tenant under Elizabeth Woodhull, of part of the real estate claimed by her, under the will ; and that the defendant held a part of the premises, either under a contract made with the testator, in his lifetime, or under Elizabeth Woodhull, the devisee, and the residue of the premises under the witness, as tenant ; that his evidence, therefore, went to impeach the title under which he held, and also to impeach the title he had conveyed to- the defendant, who was his tenant. The judge before whom the cause was tried, thinking the objection well founded, rejected the witness, and the point was reserved, as a ground for a motion for a new trial. It was further ob- jected, on the part of the defendant, that no evidence could be received to invalidate the will, after it had been duly proved and re- corded, according to the statute ; that any evidence to impeach the validity of its execu- tion must be given at the time and place when and where the will is offered to be proved, and before it is recorded. But this *ob- [*235 jection was overruled by the judge, and sev- eral witnesses were examined on the part of the plaintiff to invalidate the will. The jury found a verdict for the defendant. A motion was afterwards made to set aside the verdict, and for a new trial, for the misdi- rection of the judge. surance Company, 7 Johns. Rep., 315; Barker v Phoenix Insurance Company, 8 Johns. Rep., 307, 317'- JOHNSON'S CASES, 3.. 1802 BATES v. THE NEW YORK INSURANCE COMPANY. 235 Messrs. Hamilton and Everston for the plaint- iff. Messrs. Hoffman, Rt'ggs, and Jones, contra. KENT, J. , delivered the opinion of the court : Two questions were raised on the argument of this case. 1. Whether the record of the will was con- clusive, so that no evidence was admissible to impeach the validity of the will. 2. Whether Samuel Strong was a compe- tent witness. 1. The will was proved under the Act of 4th April, 1786 (Laws. Vol. I., p. 276'), which enacts " that where real estate shall be devised by will, &c., the executors, or other persons interested, may cause the will to be brought be- fore the Court of Common Pleas of the county where the lands lie, and the court shall cause the witnesses to be examined in open court, and if it shall appear that the will was duly executed, and the testator of sane mind, &c., the court shall direct the will and proof to be recorded. But the court shall not proceed to examine the witnesses, &c., un- until notice shall be given to the heirs, or if not to be found within the State, fixed up at the last place of abode of such testator, at least fifteen days before such examination ;" and the statute further adds, ' ' that the records of wills, so proved and recorded, shall be as good and effectual in all cases, as the original wills would be, if produced and proved." I am satisfied, from the plain letter of the 236*] statute, that *it never intended that the proof so taken should be conclusive upon the heir. The words of the act do by no means warrant such a construction ; and it would be unreasonable to adopt it, without the most positive injunction, since the notice to the heir is so short, as in case of his absence from the State, the proof may take place without his knowledge, and, consequently, without any opportunity on his part to controvert it. The instance of probates of wills of chattels, which are held to be conclusive upon the courts of common law, was cited upon the argument, as analagous to the present case, but the reason for such conclusiveness does not apply here. The spiritual courts in England have exclusive jurisdiction in the case of probates of wills, and, for that reason, the courts of law cannot pass a judgment concerning a will, in opposition to the decision of the Ecclesiastical Court. Nor does there seem to be any ground for the sug- gestion that the statute had an eye to this mode of proof, as a substitute for the mode of estab- lishing a will in chancery ; for if a question of fraud in obtaining the will, or on the sanity of the testator, arises in that court, it is never tried there ; but an issue at law is uniformly directed. (2 Atk., 324, 424; 3 Atk., 17.) This statute proof is more like the case of a bill to perpetuate testimony, for it directs the proof to be reduced to writing, and to be entered upon record, which would be altogether use- less, if the record of the will was conclusive. The record of a will, therefore, like that of a deed, is only prima facie evidence of its au- thenticity, and may be repelled by contrary proof. 1. Rev. Laws, sess. 24, ch. 9, sec. 6. JOHNSON'S CASES, 3. 2. With respect to the second question, I have looked into the cases, and find no rule established that will exclude the witness. He cannot be considered as interested, for the verdict being between other parties could not be produced in evidence for or against him iu a subsequent suit to which he was a party. This is the test by which to ascertain the inter- est of a witness, being the *rule recog- [*237 nized by this court in the case of Van Nuys v. Terhune (ante, ,82). And, indeed, were it oth- erwise, the interest, in order to exclude the witness, must not have arisen after the fact to which he is called to testify happened, and by his own act, without the interference or con- sent of the party by whom he is called ; be- cause, in that case, it would be in the power of the witness, and even of the adverse party, to deprive the person wanting his testimony of the benefit of it. (Brent v. Baker, 3 Term Rep., 27; Peake's Evid., 105.) The witness offered, was not, therefore, incompetent on the score of interest. But the ground on which his exclusion was ruled at the trial was the relationship in which he stood, as landlord to the defendant, and as tenant to the devisee under the will. This relationship, however, cannot disqualify a witness in a controversy in which a stranger to the relationship is a party, and calls for the testimony. The objection must be confined to the cases in which such a person comes forward as a party, to impeach the title which he has created or holds under another. It is, however, not necessary to say how far a party shall be prevented from attacking such a connection. It is sufficient to observe, that when called as a witness, by a third person, the objection will not avail. The interests of the third person are para- mount, and control the objection. The verdict ought, therefore, to be set aside, for the misdirection of the judge, in rejecting the witness, and a new trial awarded, with costs to abide the event of the suit. New trial granted. Cited in- Cow., 249; 1 Hill, 543; 6 N. Y., 199; 14 Hun., 7 ; 2 Redf .. 332 ; Rob., 227 ; 37 N. J. L., 319. *BATES [*23S v. THE NEW YORK INSURANCE COM- PANY. Subscription Shares Payments by Installments Assignment Knowledge of Demand of Transfer Set-off Assignor's Debt Payment by Assignee Transfer Action for Money Paid and Accrued Dividends. A subscribed fifty shares in The New York Insur- ance Company, attifty dollars each, the amount to be paid in five installments of ten dollars on each share ; and by the articles of association, no transfer of any share could be made until all the installments were paid in. NOTE. Stock. Liability of for debts of share- holders. At the common law there is no lien ag-aiiist stock for debts in favor of the corporation issuing it. Steamship Dock Co. v. Harvee, 53 Pa. St., 280; Mass. Iron Co. v. Hooper, 7 Cush., 183 ; F. and M. Bank v. Wasson, 48 la., 336 ; Heart v. State Bank, 2 Dev. Eq., Ill ; Sargent v. Franklin Ins. Co., 8 Pick., 90 ; Dris- 681 238 SUPREME COURT, STATK OF NEW YORK. 1802 A, after paying: the two first installments, on the 22d of July, 1796, assigned the shares, and all his in- terest therein, to B, who punctually paid the three remaining installments to the company, at the times at which they were respectively payable. The company knew of the assignment to B on the the 20th of January, 1797, and between that time and the 20th of January- 1798, three dividends had been declared on the stock of shares by the company, which amounted to $525. The company held three notes of A given for premiums of insurance, one of which, dated the 3d of June, 1796, was for $1,001, and became due in December, 1796 ; and the others, dated in September, 1796, became due in March fol- lowing ; and they applied the $525 due for the divi- dends, towards the payment of A's notes, after de- ducting which sum, and the sum for return of pre- miums, there remained due to the company, on the notes of A, $465 ; and, when B, on the 20th of Janu- ary, 1798, paid the last installment, and demanded a transfer of the shares to him, the company refused to make the transfer until the balance due from A (who was then insolvent) was paid to them. B paid the $465 to the company, who thereupon made the transfer to him. In an action for money had and received, &c., brought by B against the company, to recover back the $465, and also the dividends, after the 20th of January, 1797, it was held that the action would lie, and that the plaintiff was entitled to recover the $465 paid by him, but not the dividends received by the defendants, prior to the 20th of January, 1798, as the defendants had an equitable lien on that money, in their hands, to pay the note of A, which was act- ually due to them, before they had notice of the assignment to B. Citations 2 Str., 913 ; 4 Term R., 485 ; 4 Term R., 561 ; 1 Esp. Cas., 279 ; 1 Term R., 285. fPHIS was an action of asmmpmt for money I. had and received to the plaintiff's use. Plea, non assumpsit. At the trial the defend- ants waived all exceptions to the form of the action, and rested on the merits only. Norman Butler subscribed for fifty shares in The New York Insurance Company, each share being of the value of $50. On the 22d day of July,, 1796, Butler assigned to the plaintiff all his right and interest in the fifty shares. By the articles of association of the defendants, the sum of $10 on each share was payable at five different installments ; on the first of May, 1796, the 20th of July, 1796, the 20th of January, 1797, the 20th of July, 1797, and the 20th of January, 1798. It appeared by the articles of association, that no transfer of any share could be permitted or be valid, until all the installments on such shares were paid. The two first installments were paid by Butler, and the three last by the plaintiff, who regularly received a notice of such payment being due, from the secretary of the company, directed, however, to Norman Butler. It was also proved by the secretary of the company, that on the 20th day of January, 1797, he knew of the assignment from Butler to the plaintiff ; and that, from that day to the 20th of January, 1798, three dividends were made, amounting in the whole to $525 on the fifty shares ; which sum *the de- [*23J) fendants had credited on three certain notes given by Norman Butler to them. The first note was dated 3d of June, 1795, for $1,001.25 payable in six months, and -the other two amounted to $251.25, dated the 21st of Sep- tember, 1796, payable six months after date, which notes were given for premiums of in- surance ; and by return of premiums, the sum due on the three notes was reduced to $990 ; and after crediting the $525, the amount of the three dividends, a balance remained due from Butler to the defendants of $465. The defendants refused to transfer the shares which had been assigned to the plaintiff by Butler until that sum was paid, which the plaintiff accordingly paid, and the transfer was made. Butler, on the 20th of January, 1798, was insolvent ; and on that day the last installment was paid on the fifty shares, and the plaintiff requested a transfer to be made, which the defendants refused to make until the balance due on the three notes above men- tioned was paid. It was also proved by the secretary of the company, that it was common to make assignments of stock, and that it was their practice to send notices, when the install- ments became due, to the persons to whom the stock had been assigned. The jury found a verdict for the plaintiff for ' ~ , subject to the opinion of the court, on a case containing the above facts ; and the ques- tions raised for the determination of the court were, whether the plaintiff ought to recover anything, and if so, whether he should re- cover the $990, being the amount of the three dividends made after his assignment, together with the money paid by him in order to pro- cure the transfer ; or, whether he should re- cover only the $465, the money demanded of him, and paid at the time the transfer of the stock was made. coll v. Bradley Mfg. Co., 59 N. Y., 96 ; Vansands v. Middlesex Co. Bank, 26 Conn., 144. But dividends may be retained as a set-off, Hager v. Union National Bank, Sargent v. Franklin Ins. Co., 63 Me., 509 ; 8 Pick., 90. Such lien exists only when given by act of incor- poration, or reserved in by-laws made in pursuance of such act, of which assignee is bound to take notice. See above cases ; also. Union Bank v. Laird, 2 Wheat., 390; Bank of Com. Appeal., 73 Pa. St., 59; Pierson v. Bank of Wash., 3 Cranch C. C.,363; Ar- nold v. Suffolk Bank, 27 Barb., 424 ; Tuttle v. Wal- ton, 1 Ga., 43; Dobbins v. Walton, 37 Ga., 617; Newberry v. Detroit, Etc., Co., 17 Mich., 141 ; St. Louis Perpetual Ins. Co. v. Goodfellow, 9 Mo., 149 ; M. M. Co. v. Levy, 54 Pa. St., 227 ; Brent v. Bank of Wash., 10 Pet., 595; Byron v. Carter. 22 La. Ann., 98; Merchants' Bank v. Merchants' Bank, 45 Mo., 513; Matter of Bigelow, 2 Ben., 469; German Bank v. Jefferson, 10 Bush., 326 ; Re General Exchange Bank, L. R., 6 ch. ap.. 818 : Re Stockton, etc.. Iron Co.. Rolls, Ct., L. R., 2 ch. D., 101, Marawetz on Private Corporations, sec. 332, and authorities there cited. Such lien does not overreach prior assignment. Neale v. Janney, 2 Cranch C. C., 188. 682 Lien may be waived. Hill v. Pine River Bank, 45 N. H., 300. See, also, on this general subject, Helen v. Smig- gert, 12 Ind., 194 ; Planters', etc., Ins. Co. v. Selina Bank, 63 Ala., 585; Mechanics' Bank v. N. Y. &. N. H. R. Co., 13 N. Y., 600; McCready v. Rumsey, 6 Duer, 574. Last two cases are to the effect that assignee takes subject to all obligations of assignor. Assignee of shares, even before transfer on the books of the company, has superior right to attach- ing creditors, of assignor, having notice. Black v. Zacharie, 3 How., 483, 511-512; Hunterdon Bank v. Nassau Bank, 17 N. J. Eg.. 496 ; Boston Music Hall As'n v. Cory, 129 Mass., 435; Colt v. Ives, 31 Conn., 25; Dickinson v. Central National Bank, 129 Mass., 279; Scripture v. Frenchtown Soap- stone Co., 5 N. H., 571 ; Sergent v. Essex Ma- rine Ry., 9 Pick., 201 ; Fisher v. Essex Bank, 5 Gray, 373; Sargent v. Franklin Ins. Co., 8 Pick., 90; Com'l Bank of Buffalo v. Kortright, 22 Wend., 362; Gilbert v. Manchester Iron Co., 11 Wend., 628. Special case* unricr statutes: Blanchard v. Ded- ham Gas Co., 12 Gray, 213: Application of Thomas Murphv, 51 Wis., 519; Skohegan Bank v. Cutler, 49 Me.. 315. JOHNSON'S CASES, 3. 1802 BATES v. THE NEW YORK INSURANCE COMPANY. 239 Messrs. Peridleton and WilMns for the plaintiff. Mr. Hoffman, contra. 24O*] *TnoMPSON, J., delivered the opin- ion of the court : We are of opinion that judgment ought to be given for the plaintiff ; but the ques- tion as to the amount, seems to divide itself into two distinct considerations. In the first place, whether the $465 were paid under such circumstances of compulsion that the plaintiff ought to recover it back, or whether it must be considered as a voluntary payment, and coming within the rule volenti non Jit injuria. And, in the second place, whether the defendants, holding those notes against Butler, were authorized to appropriate the dividends on those shares to the payment of the notes after they had received notice of the assignment of the stock to the plaintiff. The equitable extension of this kind of ac- tion has of late been so liberal that it will lie to recover money obtained from anyone, by extortion, imposition, oppression, or taking an undue advantage of his situation. In the present case, there was, at least, an undue ad- vantage taken of the plaintiff's situation. He had purchased of Norman Butler the fifty shares ; a regular assignment was made to him ; but the transfer could not be completed without the assent of the defendants. He had given notice to the defendants of the assign- ment, and had paid them three installments, amounting to $1,500 ; and no information ap- pears to have been given to him by the com- pany that they had any demand against But- ler, who had now become insolvent, and the plaintiff had no mode of indemnifying himself, for the money paid Butler, or for the install- ments which he had paid, but by some means or other procuring a transfer of the stock which he had purchased, which the defend- ants refused to make, unless he paid them the $465, which was not then due from Butler to them. The purchase of the stock had been made by the plaintiff, and the business trans- acted according to the usage and practice be- fore adopted by the defendants, and he had reasonable grounds to believe, when he made the purchase, that the transfer would be made 241*] *to him, agreeably to the former prac- tice of the company, and which they in equity -and good conscience were bound to do. The money being inequitably demanded of him, he must be presumed to have paid it, relying on his legal remedy to recover it back. In the case of Astly v. Reynolds (2 Str., 913), money paid under circumstances less coercive than in the present case, was recovered back in this form of action. In that case the plaintiff had pawned some plate to the defendant, and, when he came to redeem it, the defendant re- fused to deliver it up unless he was paid an ex- horbitant premium, which was paid, and an ac- tion brought to recover the money back. The <;ourt, in giving judgment, said that it was a payment by compulsion ; the plaintiff might have such an immediate want of his goods that an action of trover would not do his busi- ness ; that where the rule volenti non fit in- juria is applied, it must be where the party had his freedom of exercising his will. In the JOHNSON'S CASES, 3. case of Irving v. Wilson (4 Term Rep. , 485), and also of Hunt, Executor, &c., v. Stokes (4 Term Rep. , 561). the same principles are fully recognized and adopted. It is contended, on the part of the defend- ants, that this was a voluntary payment, and, therefore, not recoverable back ; and to estab- lish this, two cases have been cited, Brown v. M'Kinnaly (1 Esp. Cases, 279) and Size v. Dickason(\ Term Rep., 285). But on exami- nation, those cases do not compare with the present. The former case appears to have been decided on the ground that the monej' for which the action was brought had been paid pending a former suit, and that the plaintiff, Brown, might have interposed, as a defense in that action, the same matter on which he then relied to recover, and that to allow him to sus- tain his action would be to try every such matter twice. In the latter case the money for which the action was brought, in equity and conscience, belonged to the defendant ; and although the plaintiff could not in law have been compelled to pay it, yet *after he [*242 had voluntarily paid it, the court on that ground refused to sustain an action to recover it back. On the whole, we are of opinion that the $465 could not, under all circumstances, be considered a voluntary payment, but as made, in some measure, by compulsion, an undue advantage having been taken of the plaintiff's situation, and that he ought to re- cover it back. The second question with respect to the dividends appropriated by the defendants, in- volves points of greater doubt and difficulty. From the case it appears that the assignment from Butler to the plaintiff was made on the 22d of July, 1796, but it does not appear that notice of it was given to the defendants until the 20th of January, 1797, and the three divi- dends were made after that period. Had the money been actually paid over to Norman Butler after the defendants received notice of the assignment, we should be inclined to pro- tect the rights of the assignee, and consider it a payment wrongfully made, and that the plaintiff ought to recover the amount. But in the present case, the defendants had, at the time of receiving the notice, an equitable lien on this money ; all the three notes given by Butler to the defendants were dated prior to the notice, .and the one for $1,001.25 was actually due at the time they received notice of the "assignment ; and, after deducting the amount of the return premiums, there was a balance due on that note of $738.75, which was more than sufficient to absorb the three dividends amounting only to $525. By the terms of the association, the defendants could not be called upon to transfer the stock until the 20th of January, 1798, being the day on which the last installment for the shares was paid ; and they were then bound to make the transfer, and would not have been justifiable in denying it until another dividend was made, so as to satisfy the residue of their demand against Butler. We wish to be understood that our opinion of the defendants' right to apply the three dividends of $525 *to [*243 the payment of their demand against Butler, is founded on the circumstance that the first note was actually due when they received 683 243 SUPREME COURT, STATE OF NEW YORK. 1802 notice of the assignment. The money being in their hands, they had a right to consider it as appropriated to the payment of that de- mand ; and it is unnecessary to say what would have been our decision had the note not been due. We are therefore of opinion that the plaintiff is entitled to recover the $465 only, with the interest from the 20th of Janu- ary, 1798. Judgment accordingly. Cited in-3 Paige, 361 ; 59 N. Y., 108 ; 60 N. Y., 501; 21 How., 273; 1 Abb., 27; 3 Daly, 220; 6 Duer, 579 ; 4 E. D. Smith, 701 ; 3 Blatchf ., 251, 252. COIT AND WOOLSEY v. HOUSTON. Action on Note Pleading Accord and Satis- faction By Merchandise No Time or Place of Delivery Tender of Delivery Neglect to Receive. A being indebted to B by a promissory note, for $1,167, it was agreed in writing between them that A should deliver to B as much coal at $10 per chaldron, as would amount to the sum due on the note, the coal to be of the like quality with that purchased by A of B out of a certain ship. No time or place was fixed for the delivery. A having in his coal-yard a large quantity of coal, and suffi- cient of the quality mentioned, though consisting of different kinds, immediately afterwards, and at different times, tendered to B the coal, in satisfac- tion of the note, and B made no objection to the place or mode of delivery, but said, at one time, he would send and take them, and at another, that he was not ready to receive them, and finally neglected to take them. In an action, afterwards brought by B against A, on the note, it was held that the agreement for the delivery of the coal was valid, and that the tender on the part of A was equiva- lent to a performance, so as to bar the plaintiffs' action, and might be pleaded by way of accord and satisfaction. Citations Plowd., 5, 11 ; Sir T. Jones, 168 ; Sir T. Raym., 450 ; 2 Str., 573 ; 2 Wils., 86 ; 5 Term R., 141 ; 2 Term K., 24 ; Cro. Eliz., 193, 304 ; Co. Litt., 210, a, b ; 1 Ch. Cas., 29 ; 2 P. Wms., 378 ; 3 Term R., 554 ; Doug., Co., 694 ; 2 Johns. Cas.,411 ; Cro. Jac., 245 ; 1 Wils., 117 ; 9 79 a, b. ; L. Raym., 203 ; Bacon, Vol. I., 24 ; L. Raym.; 450; Sir T. Jones, 258; 5 Term R., 143; Poth. Trait, des. Oblig., p. 2, ch. 6, sec. 9, sec. 4, n. 22 ; Domat, bk. 1, tit. 2, sec. 4, art. 7 ; 2 Ersk., 480, 481 ; 2 H. Black., 318, 319 ; Roll. Abr., tit. Accord., 129, pi. 14 ; 2 Term R., 5. THIS was an action of assumpsit brought by the plaintiffs, as indorsees, against the defendant as indorser, of a promissory note given by P. and G. Skidmore to William Bur- rail, for $1,167.33, payable the 14th day of November, 1800. The defendant pleaded non assumpsit, with notice that he should give in evidence an agreement, in the words following, to wit: "We do agree to deliver to Coit & Woolsey as much coal as will amount, at ten dollars per chaldron, to principal, interest and charges of the note which they now hold against us, the said coal to be of an equal quality with the coal we purchased from them, from the ship New York, Captain John Sea- ward, which was from Glasgow. New York. 244*] *December 24, 1800. Paul Skidmore, William Houston, William Burrall." The notice further stated, that the defend- ant had offered and tendered the coal on the agreement, and that the plaintiffs refused to accept it ; and further, that he had deliv- 684 ered, and the plaintiffs accepted, the coal in full satisfaction of the note. From the testi- mony stated it appeared that the defendant had a large quantity of coal in a coal-yard, in Roosevelt Street. There were 300 or 400 chaldrons, which was generally as good as that received from the ship New York, but it lay in bulk, and no considerable quantity of one kind could be taken without mixing with others. The market price of coal at the time was about $10. Shortly after the above agree- ment, the defendant had cartmen and laborers ready to deliver the coal to the plaintiffs. About the beginning of February, 1801, the plaintiffs offered the coal for sale to William Dodge, saying they were obliged to take it back. On the 26th or 27th of December, 1800, the plaintiffs were requested by the de- fendant's clerk to take away the coal from Roosevelt Street, which they said they would do. It also appeared that the defendant, soon after the contract, repeatedly called and re- quested the plaintiffs to take away the coal. And at one time, one of the plaintiffs prom- ised to call next morning and look at it. This the witness thought was between Christ- mas and New Year. Another witness said it was in March. A witness testified that he was present at a time when much conversation took place between the parties on the subject, and the plaintiffs did not pretend that the de- fendant had ever said he was unable or un- willing to deliver the coal. In the spring of 1801, the defendant called on the plaintiffs, and tendered the coal, saying it was ready for them ; and the plaintiffs answered that they were not ready to receive it, and would take it when they pleased. On the part of the defendant it was proved that on the llth of February, 1801, the defendant called at the counting-house *of the plaintiff and [*245 told their clerk that he had come to inform the plaintiffs that he could not deliver the coal because Burrall detained them. The witness informed the plaintiffs of this, and the present suit was soon after commenced. It also appeared that the plaintiffs had never taken any part of the coal, but that the de- fendant, in the winter of 1802, took from the yard all that remained, being upwards of one hundred chaldrons, the yard then lying open. On the part of the plaintiffs, it was con- tended that the agreement respecting the coal could not operate as a satisfaction of the note in question without a delivery, and accept- ance, in fact, of the coal. On the part of the defendant it was insisted that there was an actual acceptance of the coal, and if not, there was, at least, a tender and refusal to receive, which was equivalent to an acceptance. Messrs. Hopkins and Biggs for the plaint- iffs. Messrs. Hamilton and Etertson, contra. THOMPSON, J. The first point which pre- sents itself for consideration is the agreement set up by the defendant as a satisfaction of the note. It is said that this agreement is a mere nudum pactum ; that there was no considera- tion ; that it contained no mutuality, inas- much as the plaintiffs did not agree to accept ; JOHNSON'S CASES, 3. 1802 COIT AND "VVOOLSEY V. HOUSTON. 245 that it contained no sufficient certainty, and was nothing more than a proposition to pay. But, on examination, I cannot consider this agreement so defective. The whole circum- stances stated show that the transaction was fair and honest on the part of the defendant. The coal was to be delivered at $10 per chal- dron, which, according to the case, appears to have been the then market price. The con- sideration was the money due on the note in question, and although no time is fixed for the delivery of the coal, yet, in judgment 24*] *of law, they were to be delivered im- mediately, or on demand. It appears to me, therefore, that this agreement contains all the essential requisites to a valid contract, and upon which an action might be sustained, in case of a refusal to deliver the coal. This being the case, it remains to be considered whether this contract can be set up by the de- fendant as a satisfaction for the note. I do not think the present case directly involves A determination of the abstract question, whether accord without satisfaction would be a good plea. As a general rule, or prin- ciple of law, as applicable to a plea of this kind, it has been frequently decided that a plea of accord simply, without satisfaction, would be bad. And the rule, I have no doubt, is a sound one, that it must appear upon the face of the pleadings, either that the party has actually received the thing pleaded, as a satis- faction, or that the contract set up as the sub- stitute shall afford him redress for the original demand. The leading reason which appears to govern almost all the cases that determine that a plea of accord only is bad, is, that an .action could not be sustained on the accord on the ground of a nudum pactum. But this reason ceases where the agreement set up as the substitute will sustain an action, and afford complete redress. From an examination of the authorities, I think I am warranted in adopting as a general rule, that an agreement, in order to be an effectual plea in bar, must be executed and satisfied with a recompense in fact, or with an action, or other remedy to execute it and re- cover a recompense. (Plowd., 5, 11 ; Sir T. Jones, 168.) And in the case of Case v. Bar- ber (Sir T. Raym., 450), accord, without satis- faction, but with tender, was pleaded, and the court held it good, saying that formerly it was held necessary that the agreement should ap- pear to have been executed, yet of late it had been held that upon mutual promises an action lies, and consequently, there being equal remedies on both sides, an accord may 247*] be *pleaded without execution, as well as an arbitrament. If I am correct, then, that the agreement to deliver the coal was such a one as would sustain an action, and afford a remedy to the plaintiffs for their demand, it comes within this rule and decision. It is said, however, that these judgments have been overruled by later decisions. There is cer- tainly much obscurity, and, perhaps, some contradiction, in the books, on this subject ; yet from the authorities cited by the plaintiffs' counsel, it does not appear to me that the great and leading principles contained in the above cases are materially contradicted. Most of these cases were decided on demurrer, JOHNSON'S CASES, 3. either to the form of the plea, or the nature of the satisfaction disclosed by it. In the case of Patne v. Martin (2 Stra., 573), the question came before the court on demurrer, and turned on the insufficiency of the covenant of acceptance. In the case of Preston, v. Chrismas (2 Wils., 86), the judgment was given on the ground that a release of the equity of redemption was no satisfaction in law. In the case of Jaine* v. David (5 Term Rep. , 141), the question arose on a demurrer to the plea which was accord without satisfaction, and the court adjudged it insufficient. In the case of Heathcvte v. Orook&hank* (2 Term Rep., 24), the decision turned on the question of nudum pactum, and that the sum tendered was less than the original demand. In the two cases cited from Cro. Eliz., 193,' 304, one was decided on the ground that the accord and tender was for a less sum than the original demand ; and the other was an action of debt on bond, and the accord and satisfac- tion set up, was a promise by parol to pay a sum of money at a day subsequent to the, day mentioned in the bond, and was merely exec- utory ; and, being by parol, could not dis- charge the bond. *I do not think the present case [*248 comes within any of the principles decided in those cases. The plea is tantamount to a plea of accord and satisfaction. There is no ob- jection here to the amount of the satisfaction. The full principal and interest of the note were to be paid in coal, at the price agreed on, which appeared to be the market price at that time. If the plaintiffs had actually received the coal, the satisfaction would have been com- plete ; and no possible objection could be raised against it. Or if the sale of the coal would be considered as complete, or the plaintiffs, by their own acts, waived anything further being done, on the part of the defend- ant, in order to complete the sale, and the coal remained afterwards at their risk, I cannot see why satisfaction was not in fact received. Those were points, however, properly sub- mitted to the determination of the jury, who, by their verdict, have decided the fact, and, I think, in a manner fully justified by the testi- mony. The plaintiffs, after the agreement for the coal, offered them for sale to Dodge, and when requested by the defendant to take it away, they promised to do it. The only objection with them seemed to be that it was not at that time convenient ; not that they con- sidered the contract for the sale of the coal as incomplete, or that anything further was to be done on the part of the defendant, in order to complete it. There was no pretense that the coal were to be brought by the defendant to the plaintiffs' store, or yard. These were circumstances from which the jury might infer an actual acceptance at the place where the coal lay, and that they were there at the risk of the plaintiffs. Although I do not think it necessary, for the purpose of determining the present question, to say that in all cases a tender and refusal shall be equivalent to an actual acceptance, yet I think it a rule founded in good sense, and one that is not contradicted by the general tenor of the authorities. 685 248 SUPREME COURT, STATE OP NEW YORK. 1802 Whether, in this case, there was a tender 249*] *and refusal, were questions for the determination of the jury. And even admit- ting there was no actual legal tender, it would not, in my judgment, alter the result. The party to whom it is to be made, has, undoubtedly, a rigth to waive that ceremony, and I think the circumstances here are fully sufficient to warrant such an inference. When it is said that a tender and refusal is equivalent to an actual performance, it is not to be understood that it amounts to an absolute discharge of the party from all liability on the contract. In the case of a tender of money, it only dis- charges the subsequent interest and costs. And in the case of goods, like the present, it only exonerates the party from responsibility for their safe keeping. But as long as he con- tinues in possession of the goods, he will be bound to deliver them on demand. And if he should dispose of them, he would be answer- able for the avails. On the whole, I think it a rule fully warranted by the authorities, that a contract or agreement which will afford a com- plete recompense to a party for an original demand, ought to be received as a substitute and satisfaction for such demand, and is suffi- cient to support a plea of accord and satisfac- tion. This appears to me to be a rule founded on sound principles, and one calculated for the furtherance of justice. In the present case, the plaintiffs' remedy must be upon the agreement for the sale of the coal, in which case complete justice can be dispensed, ac- cording to the true intent and meaning of the parties. I am, therefore, of opinion that no new trial ought to be granted. LIVINGSTON, J., concurred. The substance of his opinion was as follows : There were acts equivalent, under the cir- cumstances of the case, to a tender of the coal ; and that amounted to a performance of the new agreement on the part of the defendant. The contract of the '24th Decem- ber, 1800, was no doubt valid. The plaint- 25O*] iffs accepted it, and became *par- ties to it, and there was a consideration on each part. The plaintiffs were to receive coal in payment of the note, at a fixed valuation. The defendant was to receive his note in re- turn. There was a benefit accruing to each party. The contract was also sufficiently certain, and each might have demanded per- formance instantly. The time and place of the tender were here sufficiently supplied. It is a rule that money must be tendered to the payee in person, or where the payee resides, when no place certain is fixed. (Co. Litt., 210. a, b; 1 Ch. Cas., 29.) But this rule must, of necessity, be dif- ferent, when bulky articles are the object of the tender. In many cases, the removal of the article to the residence of the payee would be im- possible ; and in the present case it would have been attended with great difficulty, as the coal could only have been removed in parcels, and there was no proper place where they could have been deposited. It is, therefore, an obvious dictate of reason and justice, that when no time and place are given, the party who is to deliver may inform the other party that the cumbersome article is ready, at a 686 certain place, and if no objection be made, the appointment of the place will be good. Pothier prescribes the same rule in the French law. 1 So money, in bulk, has been tendered at a place appointed by a mort- gageor, and sanctioned by Lord Ch. King, because no objection was made. (2 P. Wms., 378.) A tender in bank notes is also good, when no objection is made. (Buller, J., 3 Term Rep., 554.) Silence will give effect to an act otherwise doubtful ; but here was every reason to infer an acquiescence on the part of the plaintiffs as to the place of delivery. The tender, therefore, was good, there being no objection made as to the want of any of the requisite formalities. It was unnecessary for the defendant to go on further, for *the [*25 1 plaintiffs were satisfied with what he had done, and said they would send and take away the coal. It is settled that the act of one party will cure an imperfect tender, or waive the necessity of one altogether. (Doug., 694 ; Judah v. Kemp, October Term, 1801, 2 Johns. Cases, 411.) Such a tender of performance of a valid agreement, ought to be equivalent to performance, in order to avoid circuity of action. To enforce payment of the note, in spite of the agreement and tender, would be unreasonable, and the law does not permit it. It is a principle settled, that if a person is to acquire a right to a debt or duty by previously doing some act, this right is as completely vested by an offer to do it and a refusal, as if the act had been actually performed, or, in other words, a tender and refusal is equiva- lent to a performance. (Cro. Jac., 245; Doug., 694; 1 Wils., 117.) On tender of the coal, in the present case (for a tender and acquiescence or acceptance must certainly be of as much force as tender and refusal), the defendant acquired a right to the note, and might have brought trover for it, which could not be, if the plaintiffs can now sue upon the note. The cases that look to the contrary do not decide against this principle, if they are carefully examined. In Peyton's case (9 Co. , 79 b.) a tender and refusal were not before the court ; and in the case in Sir T. Jones, 6, it does not appear whether the new agreement was valid. So in Cock v. HonycJiurch (T. Raym., 203), there was no tender pleaded of the attorney's bill ; and the new editor of Bacon (Vol. I., 24), observing on this case, says, that if the defendant had demanded the bill, and tendered a reasonable sum, it might have been good. On the other hand, the case of Case v. Barber (T. Raym., 450), and those in Sir T.Jones, 258 and 168,are in point. The doc- trine is, that if no action lies on the mutual prom- ise, such agreement is no bar. In a late case, also, in K. B. (5 Term Rep., 143), Grose, J., admit- ted that there were some cases in which it had been held, that where one party has satisfied the other, as far as he could, by tender and *refusal, it might be pleaded. There f*252 are cases that say that the agreement is bad, but none that say that tender and refusal on a valid agreement substituted to the other, and on which an action lies, might not be pleaded. 1. Trait, du Contrat de Vent, No. 52, p. 2, ch. 1, art. 2, sec. 2. S'ii n'y a point de lieu exprime, la livrai- son doit se faire au lieu ou est la chose; c'ettt a r acheteur a V envoyer chercher, <5cc. JOHNSON'S CASES, 3_ 1802 COIT AND WOOLSEY V. HOUSTON. 252 Pothier (Trait, des Oblig., p. 2, ch. 6, sec. 9, sec. 4, n. 22) is very clear to the same effect. ' ' One may, by the pact constitutce pecunice, promise to pay, in lieu of the sum due, another sum or thing. Let us suppose that my debtor of thirty pistoles, promises to pay me six puncheons of wine, of his own vintage, in pay- ment of the thirty pistoles. This pact does not destroy the first obligation, and I may, by virtue of it, demand of my debtor the thirty pistoles ; but as, by the pact, I have agreed that he might pay me, instead of that sum, six puncheons of wine, he may, by pleading the pact (per exceptionem pactf), "and tendering the wine, require to be discharged from the demand of the thirty pistoles. By means of this plea, of which he may avail himself, the first obligation, which was a pure and simple obligation to pay me precisely thirty pistoles, receives a modification, and becomes an agree- ment to pay thirty pistoles, with the power of paying six puncheons of w r ine instead of that sum." RADCLIFF, J. It will be unnecessary in this case to repeat the facts which have been stated, except so far as they may be material to dis- tinguish the grounds on which I differ from the opinions already delivered ; and it is equal- ly unnecessary to renew the discussion of several points in which I fully agree with my brethren. I consider the contract for the sale and de- livery of the coal in satisfaction of the plaint- iff's debt as valid, and, of course, that it is sufficient to support an action for its nonper- formance against the party in default on either side. It is founded on a good consideration, and, being in writing, it cannot be affected by the statute of frauds. I also agree, that in relation to these parties, and for the purpose of effectuating this contract, a tender and ref us- 2.53*] al *would be equivalent to an actual performance, and entitle the vendor to the price, and the vendee to the possession of the article which was the subject of the contract. An omission or neglect to accept the article when duly tendered, is also equivalent to a refusal, and will subject the party in default to the like consequences. These appear to me to be plain principles, founded in equity, and supported both by the civil law and the authorities in our own law. But on the facts in this case, two other questions arise : 1st. Whether there was a competent or legal tender of the coal by the defendant; and, 2d. Whether, if the tender was sufficient, he has not abandoned his right to demand the price for which they were sold, and is entitled only to an indemnity for the diminution of value. With regard to the first question, it appears that the coal, at the time of the tender, remain- ed in the defendant's coal-yard, mixed with other coal, and not separated from them. If they had been separated, he would have done everything he could to effect a delivery. I have no doubt, that in relation to a cumbrous article, it was sufficient, on his part, to offer to deliver, as the plaintiffs should direct ; for, from its nature, it was not susceptible of any other tender. But still, it may be questioned whether the defendant did all that was neces- JOHNSON'S CASES, 3. sary, and in his power to do. He was to deliver a precise quantity, and of certain qual- ity, according to the agreement. I am in- clined to think that he ought, in strictness, to have separated the quantity sold, in order to make a specific tender, and to ascertain that it corresponded with the quality con- tracted for. For want of this, it was left to calculation, and subject to conjecture and uncertainty, whether a sufficient quantity of the like quality was to be found in a pro- miscuous heap, and the purchaser was not bound to submit to the risk of that uncertain- ty. *He was entitled to receive a par- [*254 ticular quantity, of a specified nature, and unmixed with other coal. Although we have no direct authority in our own or the English courts to this point, it appears to me to con- sist with reason ; and by the civil law it is established that when provisions or other commodities are sold by the bulk, for a gross price, the sale is perfect, for it is known with certainty what is sold ; but if the price is regulated at the rate of so much for every piece, pound or measure, as in the present case, the sale is not perfect, except as to so much only as is actually counted, weighed or meas- ured ; for, till then, it is not known with cer- tainty what is sold. (Domat, bk. 1, tit. 2, sec. 3, art. 7.) 1 The like principle is adopted in the Scotch law (2 Ersk., 480, 481), and the reason on which it is founded appears to me correct. If, therefore, the tender be insuffi- cient, it follows that the defendant's plea can- not, on any ground, be maintained. 2. But admitting the tender to be sufficient, the second question is, whether the defendant has not waived his title to demand the full price of the coal. This proceeds on the idea that he had an undoubted right to deliver the coal at the stipulated price, and that the plaint- iffs were bound to accept it. In good faith they could not refuse, nor could they, by their own act, in any way deprive him of the full benefit of his contract. Without stating the evidence under this head more --at large, it unequivocally appears that no part of the coal was, in fact, at any time, delivered ; that they remained in the de- fendant's coal-yard, mixed with other coal, from which they were never separated, and that finally, the defendant *removed [*255 from the yard all the coal that remained, amounting to upwards of 100 chaldrons, which were either sold or disposed of by him, since it is not pretended that any of them were kept for the plaintiffs. I think the circumstance of the plaintiffs' having previously, on the 1st February, offered to sell to Mr. Dodge the coal of the cargo of the ship New York, saying that they were obliged to take them back, can- not, in opposition to this evidence, be con- sidered as any proof of its having actually been delivered or received by the plaintiffs. 1. Though it is true, in such cases, that the con- tract of sale is not perfect or complete until the goods are counted, weighed or measured, so as to change the property, and put the goods at the risk of the vendee, yet the contract of sale is so far com- plete and existing as to give the vendee an action for the delivery of the thing, on tendering the price, and the vendor his action for the price, on tender- ing the delivery of the thing sold. (See Pothier, Control du Vente, part 4, No. 308 ; and 6 East, 625.) 087 255 SUPREME COURT, STATE OP NEW YORK. 1802 Allowing that circumstance its utmost weight, it is evidence only of a constructive and not an actual delivery. It is therefore certain that the contract was never carried into effect ; that the accord was never, in fact, executed, and, of course, that the defense is not maintained, unless it be on the ground of the tender and refusal to accept. I consider it as equally clear, that by force of the contract alone, which was merely executo- ry, the property was not changed ; but on making the tender, if that was competent, the defendant had an election to consider it changed, and to become the bailee for the plaintiffs, or to affirm the property to continue in himself, and demand the difference between its actual value and the price agreed upon. If he elected to consider the property changed, it would remain in his possession at the charge and risk of the plaintiffs, and subject to their direction. He could not, in the character of bailee, dispose of it for his own benefit. The moment he did so, he treated it as his own, and affirmed the property to continue in him- self, and could only demand the difference between the value and the price which was stipulated. The same rule prevails in the civil law (1 Domat, tit. 2, sec. 4, art. 7), by which it is declared, "that if, in default of payment of the price, the seller finds himself obliged to detain or take back the thing sold, and its value be diminished, the buyer will be bound to indemnify the seller for this diminu- tion, as far as the price which was agreed on 256*] amounts *to." "And this rule," it is added, " is a consequence of the nature of the contract of sale, for the sale being perfected, the full price is due, whatever change may hap- pen to the thing sold." I consider this do'c- trine as recognized in our own courts, in the case of contracts foi> stock, and particularly in the case of Radcliff & Heermance v. Yeo- mans; and it appears to me to prescribe the just and rational rule on the subject. I therefore think that the defendant, by the sale or disposition of the coal subsequent to the tender, determined his election to consider the property as his own, and cannot after- wards demand the full price for which they were sold to the plaintiffs. He cannot retain the whole property, and at the same time demand the whole price. He is entitled to recover, in damages, a sum equal to the differ- ence in value only, and, of course, the verdict which allows him the whole price ought, in my opinion, to be set aside. It is unnecessary to say whether such damage could be set-off in the present action. KENT, J. Without examining particularly all the questions raised, I think this case may be decided upon this single point, whether there was evidence of a satisfaction received, or performance tendered, sufficient to warrant a verdict. There can be no doubt of the law, that an accord executory is no bar, and, on the other hand, that an accord executed is a satisfaction. (2 Hen. Black., 318, 319.) So if a contract be to pay money, and by an accord there be given other things, as a horse, or gold ring, in satis- faction, it will be good. (9 Co., 79, a, 6.) Again, if an accord be executory, in the first 688 instance, and be afterwards executed at a future day, it is then good. The case in Roll. Abr., tit. Accord, 129, pi. 14, is to this effect: "If, as the case states, an accord be, that the defendant will do a certain thing at a future day, in satisfaction of the action, and he does it at the day, this is a good bar to *the [*257 action, although it was executory at the time of the accord made, since he hath accepted it in satisfaction." In the present case, there was evidence that the coal was ready to be delivered to the plaintiffs, in pursuance of the agreement which they had accepted; that it was gener- ally of the quality specified, and that there was a sufficient quantity ready; that between the 25th and 30th December, 1800, that is, immediately after the agreement was made, the defendants repeatedly offered the coal to the plaintiffs, and they said, at one time, they would call the next morning and look at the coal, and at another time, that they would call and bring away the coal, and send a person to examine it; that, afterwards, on the first of February following, they offered for sale the coal of the cargo of the ship New York, say- ing they were obliged to take it back. 1 From these facts, the jury might infer that the de- fendant had performed the agreement upon his part, by an acceptance on the part of the plaintiffs; and it may be held that the plaint- iffs were properly concluded or estopped by their own declarations made at the time of the offer, and their act in pursuance thereof, from denying an acceptance of the coal. Upon this ground alone the verdict may be permitted to rest. The justice of the case is clearly with the defendant. The case shows the many uniform and sincere efforts on the part of the defendant to fulfil the agreement which he had made with the plaintiffs, and it shows, also, efforts on the part of the plaintiffs to avoid a performance of the agree- ment they had accepted from the defendants. If, therefore, we find declarations and acts of the plaintiffs, at one time, sufficient to form a basis for a conclusion against them, a jury were well warranted to lay hold of *those declarations and acts, and bind [*258 the plaintiffs to them. It is unnecessary, perhaps, to discuss the rights of the parties as to the coal, in conse- quence of subsequent waste or loss of it as it lay in the yard, or in consequence of the subsequent sale of the residue of it by the defendant after the suit was brought. In the view I have taken of the case, the defend- ant became trustee to the plaintiffs, for the safe keeping of the coal. 2 The modifications and contingencies under which the plaintiffs accepted of the coal are not now material. It is sufficient to say, their acceptance was sufficient to give the defendant a right to the note in lieu of which the coal were received, and, consequently, to bar any action the plaintiffs might afterwards bring upon the note. If concluded at all, they are equally so against alleging any imperfection in the sale of the coal, to do away the force of their own declaration and act. 1. See Chaplin v. Rogers, 1 East, 192. 2. See Pothier, Contrat de Vente, p. 2, ch. J, sec. 3. JOHNSON'S CASES, 8 1802 CONROY v. WARREN. 258 However, I press none of these points. The evidence tended to the conclusion drawn by the jury; and as the Court of K. B. (2 Term Rep., 5) observed, on a like motion for a new trial, that as it did not require much penetra- tion to see where justice lay, they would not exercise their discretion in sending down the cause to be retried on a technical objection in point of law. My opinion, therefore, is, that the motion of the plaintiffs ought to be denied. LEWIS, Ch. J. , not having heard the argu- ment, gave no opinion. Motion denied. 1 Overruled 16 Barb., 599. Distinguished 19 Wend., 517. Cited in 16 Johns., 88 ; 4 Wend., 530 ; 26 Wend., 556 ; 5 Hill, 547 ; 16 N. Y.. 585 ; 21 N. Y., 347 ; IE. D. Smith, 308. 259*] *CONROY v. WARREN. 1. Bill, NoteorClieck Pay able to Bearer Con- sideration Proof of Fraud Suggested. 2. Bank Check Presentment Delay in Does not Release Maker, 3. Id. Stamp Act. The holder of a note, check or bill, payable to bearer, need not prove a consideration, unless it is suggested that the possession has been obtained by fraud. A bank check must be presented for payment within a reasonable time. Where a check was -drawn in March, 1800, and was not presented until October following 1 , and the drawer, after the date of the check, had drawn large sums from the bank, and payment was refused because the drawer had no money when the check was presented, it was held that the drawer was liable, notwithstanding the delay in presenting, as it did not appear that he had sustained any damages by the delay. Bank checks are not within the Act of Congress (Cong. 5, sess. 1, ch. 1. sec. 11, 6th July, 1797), laying a -duty on stamped paper. Citations Chitty, 9, 51, 147 ; 3 Burr., 1516 ; 2 Show., 247; 1 Bl. Rep., 485; Doug., 636; 2 Dallas, 146; ante, p. 5 ; Act of Congress, July 6, 1797. THIS was an action of assumpsit, tried at the New York sittings in April, 1802. The declaration contained two counts; the first upon a check drawn by the defendant upon the Branch Bank of the United States, in the city of New York. The second count was for money had and received. The check was dated the 28th March, 1800, payable to No. 912, or bearer, for $1,000, and was proved to have been signed by the defendant; but to whom the check was first given did not ap- pear. The declaration alleged that it was given by the defendant to the plaintiff. It was presented to the bank for payment, on the 20th October, 1800, and payment was re- fused. It appeared that the defendant, after the date of the check, had drawn large sums of money out of the bank, and payment was 1. See Harrison v. Close & Wilcox, 2 Johns. Rep., 44 ; Bayley & Bogert v. Ogden, 3 Johns. Rep., 399 ; Slingerland v. Morse, 8 Johns. Rep., 474. refused because the defendant had not the amount of the check in bank. The check was not stamped. The defendant's counsel moved for a nonsuit, stating, as the grounds of the motion, the three following points: 1. The plaintiff had not showed that he be- came possessed of the check bonafide, and for a valuable consideration, which, under the circumstances of the case, ought to have been done. 2. That the check was not stamped. 3. That the check was not presented for payment in due time. All these objections were overruled by the judge, and a verdict found for the plaintiff for the amount of the check and interest. A motion was made to set aside the verdict, and for a new trial. *Mr. Evertson for the defendant. Mr. Golden, contra. [*260 NOTE. Presentment of bank check for payment to be within reasonable time, effect of delay. Compare Cluger v. Armstrong, ante, 5 ; Robinson v. Ames, 20 Johns., 146: Smith v. Janes, 20 Wend., 192; Wethey v. Andrews, 3 Hill, 582; Aymar v. Beers, 7 Cow., 705 ; Brower v. Jones, 3 Johns., 230 ; | Gowan v. Jackson, 20 Johns., 176. JOHNSON'S CASES, 3. N. Y. REP., BOOK 1. THOMPSON, J. As to the first objection, it is contended, that in all cases where a check is made payable to the bearer, it is incumbent on the holder to prove, on the trial, that he paid a valuable consideration for it. This ob- jection I think not well taken; although, gen- erally speaking, simple contract debts are not considered of equal solemnity with specialties, and not, perhaps, so necessarily importing a valuable consideration, and as not to be en- forced without this proof. Yet I take it to be well settled, that with respect to bills of ex- change and promissory notes, they, in this res- pect, stand on the same footing with special- ties, and, prima facie, import a consideration. (Chitty, 9.) This principle seems necessary, for the purpose of strengthening and facili- tating that commercial intercourse which is carried on through this species of paper. The reason of the rule is equally applicable, whether the bill or note be made payable to bearer or order; and I can see no good reason why it should not apply to bank checks. (Chitty, 51.) Where, however,.!!^ instrument is made payable to bearer, so that no indorse- ment is necessary, in making a transfer, and there are any circumstances of suspicion at- tending the manner in which the holder be- came possessed of it, it is necessary he should show ithat he paid a valuable consideration, or that he came fairly by it. As, if it had ap- peared that the check had been lost, it would have been such a circumstance of suspicion as to impose on the holder the necessity of proving that he came to the possession, bona fide; as in the case of Grant v. Vaughan (3 Burr., 1516), cited by the defendant's counsel. No such circumstance of suspicion appears in the present case. But so far as anything on that subject is to be collected from the case, *the check was, at first, given by the [*261 defendant to the plaintiff. If any inference, in this respect, unfavorable to the plaintiff's right to recover, is to be drawn from his delay in presenting the check for payment, it was, at least, a circumstance proper to be submitted to the jury, and for them to determine whether the plaintiff became possessed of the check fairly, and for a valuable consideration. In this point of view there is not a sufficient ground for a nonsuit. 44 6S!> 261 SUPREME COURT, STATE OF NEW YORK. 1802" As to the second objection, I think it not necessary, by the act of Congress, that checks should be stamped. The statute imposing those duties, in describing the instruments re- quired to be stamped, says, " any bonds, bills, single or penal, foreign or inland bills of exchange, promissory notes, or other notes for the security of money," &c. If a check is at all included, it must be under the latter gen- eral description, " other notes for the security of money." Checks are a species of paper so common and in such general use and circula- tion, that it is fairly to be presumed that if it had been the intention of the Legislature to include them, they would have been described by their appropriate and universal name. A check is not, in common parlance, and iu mer- cantile language, a note for the security of money. It is a draft or order for the payment of money ; and I believe it has never been con- tended that a mere order or request to pay money, requires a stamp. In the English Stamp Act, checks, drafts and orders, are par- ticularly mentioned ; and this, I think, affords a strong presumption that they were not intended to be included in the act of Congress. So far as usage and practice will afford an exposition of the construction of the statute, it will, I believe, be universally against the opinion that checks require a stamp. I think the statute ought not to be construed to extend to instruments not coming clearly within it. I, therefore, consider this objection, also, insuf- ficient. 262*] *The third objection, that the check was not presented in due time, appears to me not to be without some weight. It is not easy to be solved why the check, which was dated the 28th of March, 1800, was not presented for payment until the October following. What shall be considered a reasonable time within which a holder of a bill or check shall present it for payment, or whether it is within the prov- ince of the court or jury to determine that point, seems to have been a subject of much discussion in England. (Chitty, 147.) But the better opinion appears to be, that it is a question for the determination of the court ; and this must be decided, in almost every instance, by the particular circumstances of the case. The best general rule, undoubtedly, is, that when a note or bill, is either payable on demand, or where no time of payment is expressed, that it should be presented as soon as possible under all the circumstances. This rule is for the protection of the rights of the third person, who may actually be responsi- ble ; and, in most, if not all the cases in the books, where the question as to the delay or laches of the holder has been brought under consideration, the suit was not against the party liable in the first instance, but against some one through whose hands the instrument has passed by negotiation in the course of business. In such case it is right and proper that the holder should show due diligence, as the drawer might otherwise sustain a loss liy the holder's delay. It might, perhaps, under these circumstances, be incumbent on the plaintiff to show that the defendant has sus- tained no damage by the delay. I think the circumstance of the defendant's having drawn from the bank large sums of money after the MO date of the check, affords an inference to that effect, sufficient to throw the onux probandi of actual damages on the defendant. The de- fendant is here presumed to have received a full and valuable consideration for the check, and is in justice bound to pay it. He has withdrawn his funds from the bank. There is no evidence or circumstance* to war- [*263 rant an inference that he has sustained any damage by the delay. From aught that appears in the case, the check was originally given by the defendant to the plaintiff, and has never passed through any other hands, and no third person is injured by the delay. I am, therefore, of opinion, that no rule or prin- ciple of law, applicable to negotiable paper, will be violated in giving judgment for the plaintiff ; and that no new trial ought to be granted. LIVINGSTON, J., and RADCLIFF, J., were of the same opinion. KENT, J. I am of opinion, also, that the motion ought to be denied. 1. Hintoris case (2 Show., 247), in which Ch. J. Pemberton ruled that the bearer of a bill, who sued in his own name, must prove a consideration, does not state whether the bill had been previously lost or stolen. It is a short and loose note of that decision, and as it literally stands, it can- not be law. . But in the case of Grant v. Vouglian (3 Burr. , 1516; 1 Black. Rep., 485), the bill had been lost, and, therefore, when the court lay down the rule generally, that if the bearer sue he must entitle himself to recover on a valid con- sideration, we must consider the rule as apply- ing to the subject matter then before the court, which was the case of a lost bill. The law is now understood to be, that a bearer of a bill or note payable to bearer, need not prove a consideration, unless he possesses it under suspicious circumstances. (Chitty, 51.) A note indorsed in blank, and one payable to- bearer are of the same nature. They both go by delivery, and possession proves property in both cases. If a question of mala fde posaesido arises, that is a matter of fact to be raised by the defendant and submitted to the jury. This doctrine is so laid down by Lord Mans- field, in the case of Peacock v. Rhodes (Doug., 636), and it has been cited and sanctioned since. *(2 Dallas, 146.) In a case in [*264 this court, Livingston v. Clinton (decided in July Term, 1799), the law was laid down to the same effect, that if a note be indorsed in blank, the court never inquires into the right of the plaintiff, whether he sues in his own right or as trustee. Any person in possession of the note may sue, and may, in court, if necessary, fill up the blank and make it pay- able to himself. A decision to the like effect was, in March, 1800, affirmed in the Court of Errors, in the case of Cooper v. Kerr. In the case before us, there were no circumstances sufficient to raise a suspicion of a fraudulent possession by the plaintiff, or to repel the pre- sumption of property arising from possession. 2. In the case of Cniger v. Armstrong & Bamwatt (ante, p. 5), I considered it as a set- tled rule, that a check must be presented for payment in a reasonable time, otherwise, the JOHNSON'S CASES, 3_ THE PEOPLE v. GUERNSEY. 264 holder takes upon himself the risk of the banker's responsibility ; and that drawing a check was an appropriation of as much money as it amounted to, in the hands of ihe bank. In the present case, the bank did not fail, but it was the act of the defendant himself which defeated the payment of the check by drawing out the money which, in good faith, was to be considered as appropriated for the payment of the check. There is, therefore, no reason or justice in the present case, that the defendant should not pay, because it was not presented at the bank between March and October. And although checks are now considered as sub- stantially the same as inland bills, I know of no case which goes the length of exonerating the drawer, where the responsibility of the bank has remained good, and where he was himself the cause of the nonpayment, by with- drawing the money. And to allow the de- fendant to avail himself of the nonpayment at the bank, would be to permit him to avail himself of his own fraud. 3. I do not consider the check as coming within the act of Congress laying a duty on stamped paper. The act specifies only bonds, foreign or inland bills of exchange, promis- 2O5*] sory *notes, or other notes for the security of money. The act is to be taken strictly, and none of these expressions will reach the case of checks, as they do not, strictly and technically, answer either of those descriptions ; and it is a rule of construction that when a statute, and more especially a statute with penalties for neglect, specifies particulars, all other particulars not enumer- ated are excluded. The contemporary and uniform exposition of this act has been that it is not applicable to checks ; and they are too frequent and notorious a species of paper to have been omitted by mistake. I am satisfied, therefore, upon all the points, that the defend- ant must take nothing by his motion. LEWIS, Oh. J., was of the same opinion. Judgment for the plaintiff. Distinguished 24 Hun, 289. Cited in 10 Johns., 232; 6 Cow., 455,491; 7 Cow., 176 ; 5 Wend., 602 ; 6 Wend., 622 ; 12 Wend., 407 ; 13 Wend., 553; 14 Wend., 587; 21 Wend., 374; 2 Hill, 428 ; 7 Hill, 384 ; 16 Abb., 147 ; 17 Id., 10 ; 1 Duer, 323 ; 4 Duer, 129; 2 Hall, 463, 557 ; 1 Sheld., 396; 36 Super., 514 ; 38 Super., 195 ; 17 Wall., 504 ; 2 McLean, 228 ; 2 Story, 513; 2 Story, 516, 517, 520. THE PEOPLE v. GUERNSEY. Indictment Omisxion in Conviction Removal Judgment Arrested. Where an indictment was found at the general sessions of the peace, of the county in which the defendant was convicted at the oyer and terminer, and the indictment was removed into this court, with a caption stating that the grand jury were sworn and charged, omitting the words " then and there," on motion in arrest of judgment, the omis- sion of those words was held fatal, and the judg- ment arrested. Citations 1 Mod., 26; 2 Keb., 583; 1 Vent., 60; 12 Mod., 88, 502 ; 2 Stra., 901 ; 2 Hawk., 308, sec. 17 ; 1 Johns. Gas.. 179; Bracton, fol. 122, b, ch. 8, sec. 4; 1 Bl. Com., 117 ; Hale, Vol. II., p. 165. THE defendant was convicted, at the oyer and terminer in Chenango, of extortion, JOHNSON'S CASES, 3. upon an indictment found at the general ses- sions of the peace ; and the same being re- moved into this court, with a caption thereto, a motion was made, on the part of the de- fendant, in arrest of judgment, because the caption of the indictment states that the grand jury were sworn and charged, without saying "then and there," and thereby omitting the venue in respect to the jury. Mr. Spencer, Attorney-General, for the peo- ple. Mr. Hoffman for the defendant. KENT, J., delivered the opinion of the court : This *being an objection to form *26O merely, the strength of it must rest altogether on positive authority. In the case of The King v. Turrfeth (1 Mod., 26 ; 2 Keb., 583 ; 1 Vent., 60), which was on an indictment found at the quarter sessions, the words "then and there charged and sworn," were omitted, and the whole Court of K. B. held the the omission fatal, and quashed the indictment. The clerk of the crown office informed the court that that was always the course, and that the above words were neces- sary where the caption is recited to be taken. This case, which appears in three different reporters, is pretty decisive, to show the prac- tice at that day, and that if a caption be set forth, it must have those words as a requisite part. There are two anonymous cases in 12 Mod., (p. 88, 502), in one of which the want of the words "then and there charged," was held fatal, and in the other it is said that no heed was taken to the exception. These cases, therefore, leave the question where they found it, without being of any influence either way ; for the one case is equal in authority to the other. Neither case states whether the in- dictment was found at the quarter sessions, or in the K. B. or oyer and terminer, which is a material part of the inquiry ; and, lastly, 12 Mod. is not a book of authority. In the case of Tlie King v. Morris (2 Stra., 901), after conviction on an indictment, the judgment was arrested because the words ad tune et ibidem were left out as to the swearing of the jury, and the case of Tfie King v. Turneth was referred to. This authority, at the distance of above fifty years from the other, establishes the law with great force and effect. That case, like the present, was a motion in arrest of judgment, after conviction ; and although it does not state in what court the indictment was found, the inference from *that omission cannot be injurious to [*2(>7 the authority of the decision, as applied to the present case. A distinction is noticed in the books be- tween indictments in inferior courts and indict- ments in the K. B. or grand sessions for coun- ties palatine. (2 Hawk., 308, sec. 17.) In the former, many words in the caption are held fatal which are not so in the latter courts ; and it was said by the counsel for the people that the sesssions for counties palatine were analo- gous in rank to the general sessions of the peace with us. But I apprehend this is a mis- 691 367 SUPREME COURT, STATE OF NEW YORK. 1802 take. In the case of The People v. The Gen- eral Sessions of the County of Chenango (1 Johns. Cases, 179), on the question respecting the power of that court to grant new trials, this court decided that the general sessions of the peace in the several counties, had uni- formly been regarded by law and in practice as inferior courts ; and that they were to be con- sidered, within the reason and meaning of the law, as inferior courts. On the other hand, the courts of counties palatine have always been regarded, in the English law, among the superior courts. They were originally clothed with jura regalia. They had, in the age of Bracton (fol, 122 b, ch. 8, sec. 4; 1 Bl. Com., 117), as he expresses it, regalem potestatem in omnibus, and they are, at this day, privileged as to pleas, so that no 692 inhabitant is compelled to appear and answer out of the same, except for error and in cases of treason, &c. To all these authorities I know of nothing to be opposed, unless it be the form of the caption of an indictment from the sessions, as given in Hale (vol. 2, p. 165), in which the words "then and there" are omitted. Prece- dents are, no doubt, in many cases, of good authority, but a single precedent, in opposi- tion to such adjudged cases, cannot avail. We are of opinion, therefore, that the judgment must be arrested. Judgment arrested. Cited in 19 N. Y., 579 ; 37 N. Y., 122 ; 19 Hun, 603 ; 44 How., 245 ; 4 Abb., N. 8., 94 ; 13 Abb., N. S., 438 ; 4 Trans. App., 37 ; 3 Park, 632. JOHNSON'S CASES, 3. [END OP OCTOBER TERM.] CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE TERM, 1SO3. 269*J *STEINBACK t>. RHINELANDER ET AL. SAME v. CHURCH. Marine Insurance Without Authority Mis- take of Fact No Interest Action for Return of Premium Witness Competency No Risk. A was at Trinidad, in Cuba, where he received vessels and cargoes consigned to him by B and C, of New York, and in which A, B and C were jointly interested. In April, 1800, A purchased a prize ves- sel, and sent her with a small cargo, on the 29th May, to the Havana. On the return of a vessel from Trinidad to New York, which had been sent out by B and C to A, B was informed by the master that A had purchased a prize vessel called the Chance, and that she was to come to New York with a cargo ; and B, without receiving any information from A himself, or any order for the purpose, on the 16th June, caused the vessel and cargo to be insured at and from Trinidad to New York, and paid the prem- ium. The broker, at the time he effected the policy, told the insurer that the plaintiff did not know whether the vessel and cargo had been purchased for A or B or C, and that he had no orders to have them insured ; but that A had the funds of B and C, and they had just heard the vessel was coming to New York. The policy was effected for account of A or C or B and C, or any other person, &c., in the usual form. The vessel not having come to New York, B after- wards brought an action against the insurers to recover back the premium, and, at the trial, A, who had been previously released by B, was admitted as a witness, and testified that the vessel and cargo were his sole property, and were purchased on his own account, and that neither B nor C, nor any other person, had any interest in them ; and that he sent her to the Havana, and though he wrote to B and C in May, he never informed them of the pur- chase, or ever gave any orders to them, or to any other person, to have the vessel insured in New York. It was held that A, under the circumstances, was a competent witness ; that B was not his agent ; and that the supposed interest of B being a mistake, no risk was run, and that the plaintiff was, therefore, entitled to a return of premium. NOTE. Marine Insurance, return of premium. See Holmes v. United Ins. Co., 2 Johns. Cos., 329; Juhel v. Church, 2 Johns. Cas., 333; Delavignev. United Ins. Co., 1 Johns. Cas., 310, and notes. JOHNSON'S CASES, 3. Citations Cowp., 666; Doug., 566; Marshall, 549; 8 Term R., 154; 1 Atk., 545, 548; 2 Atk., 359; Mar- shall, 193. THE first action was for a return of premium on a policy, dated 6th June, 1800, on the body of the schooner *Chance, at and [*27O from Trinidad, in the island of Cuba, to New York, purporting to be made by the plaintiff , for account of himself, or Peter Malibran, or John Murray & Son and the plaintiff, or whoever else, &c. The vessel was valued in the policy at $7,000, and the premium was twenty per cent. It was proved at the trial, by the broker who effected the policy, that the plaintiff informed him that Captain Brown, of the ship Albe- marle, who had just arrived from Trinidad, had informed him that Malibran had pur- chased at Trinidad the shooner Chance, a prize vessel, and had sent to the Havana fora crew, and that she Was coming to New York ; but that he did not know whether she had been purchased for Malibran or for the plaintiff, or for Murray & Son and the plaintiffs, they hav- ing funds there in his hands ; that the plaint- iff informed him he had no orders for insur- ance from Malibran : and these facts the broker communicated to the underwriters. It was further proved by John Murray that the plaintiff mentioned to him the information he had received from Captain Brown, . and that he proposed to insure, and that the schooner was intended to be sent from Trini- dad to New York. It was also proved by a clerk of the plaintiff that the plaintiff had not (as he had heard) any orders from Malibran for insurance, and that Malibran had wrote several letters to the plaintiff, in April and May, 1800, and none of them contained any advice to that effect. The deposition of Malibran, which had been taken de bene esse, by consent, saving all just exceptions, was produced and read in evidence, he having, previous to his examination, been released by the plaintiff of all claims for the 693 270 SUPREME COURT, STATE OF NEW YORK. 1803 premium, and the release accepted, and his general character proved to be good. Mali- bran stated that in April, 1800, he purchased, at Trinidad, the schooner Chance ; that about the 271*] time of the purchase, Captain *Brown, master of the ship Albemarle, was there under charter to the plaintiff, and consigned by him to Malibran ; that Malibran advised with Captain Brown about employing the schooner, and suggested sending her with a cargo to New York, but never positively determined so to do ; that Captain Brown sailed for New York before Malibran had made up his mind as to the destination of the vessel, and without expressing any order or desire that Brown should get the vessel insured ; that soon after Brown sailed, Malibran determined to send the schooner with a small cargo to the Havana, and wrote to his correspondent at the Havana, on the 31st May, 1800, stating "that although by the indorsed bill of lading, the schooner Chance appeared to be bound for New York (which was done for fear of cruisers), his orders were to the captain to go to the Havana, and wait for further instructions ; that his corres- pondent at Havana must get the vessel and cargo insured, for $6,000 ; that the vessel had sailed on the 29th May, and that should the vessel arrive before him at the Havana, and any good offer appear, the correspondent was to sell both vessel and cargo." Malibran further stated that the letter was sent by express, by land, and did not arrive until the day or day after the arrival of the vessel, so that the insurance from Trinidad to the Havana was saved ; that the vessel and cargo were solely his property, and the vessel had no other cargo on board than, that mentioned in the invoice and bill of lading, consisting of sugars, hides, braziletto and fustic, amounting to $1,773; and both the invoice and bill of lading stated the voyage to be to New York, and that the cargo was con- signed to the plaintiff, and belonged to Mali- bran ; that the invoice and bill of lading were on board on the voyage, and the letter was signed by the captain and was dated 27th May ; that he never determined to send the vessel to New York, nor was any part of the 272*] *cargo put on board with that view ; that the bills of lading, &c., were made out for New York, merely to prevent capture, to which the vessel would have been liable in foing from one Spanish port to another ; that [alibran never wrote or ordered the plaintiff to effect the insurance on the vessel or cargo, and that although he wrote to the plaintiff by Captain Brown, he never mentioned the pur- chase of the vessel, or that he intended to send her or any vessel to the United States ; that Brown was dead, and he, Malibran, was unin- terested in this suit, and that he never wrote or ordered any person to insure the said vessel or cargo, from Trinidad to New York. An affidavit of the captain made at the Havana, on the 4th August, 1800, stated that no property was shipped on board the schooner, at Trinidad, except what was specified in the bill of lading, &c. Malibran, on his cross-examination, further stated that he purchased the vessel on the 2d April, 1800, and that she cost, with repairs, $2,110 ; and that he had it in contemplation to 694 send her to New York ; that he wrote to his correspondent to obtain American papers at the Havana for the vessel, and also sent there for the captain ; that Captain Brown sailed from Trinidad the last of April or first of May, and that he wrote by him to Murray & Son, and to the plaintiff, and also to the same persons in May, by other opportunities ; that the name of the plaintiff was inserted in the invoice and bill of lading, because he was his friend and correspondent ; that he, Malibran, was at Trin- idad to receive such cargoes as should be sent by Murray & Son and the plaintiff, who were jointly interested in such cargoes, and he, Mali- bran, was also interested in them ; but that Murray & Son and the plaintiff had no interest in the schooner or her cargo. The jury found a verdict for the plaintiff for $426.20, being the whole amount of the premium. *The second action was for the [*273 return of the premium on the insurance of the cargo, and the same evidence was given as in the first cause ; it was further proved that Cap- tain Brown was a person in the confidence of the plaintiff ; that in the plaintiff's books Mali- bran was charged with the premium of insur- ance, and with subsequent advances to counsel for advice respecting the vessel. The plaintiff also offered in evidence a case made by him with the opinion of counsel, notice to produce which at the trial had been previously given to him by the defendants ; but the defendants' counsel declined reading the paper on their part, and it was then read by the counsel for the plaintiff. A verdict was also found for the plaintiff, for the amount of the premium. A motion was made to set aside the verdict, and for a new trial, on two grounds : 1. Because Malibran was an incompetent witness, and his testimony ought to have been rejected. 2. Because, admitting the evidence, the facts in the case did not entitle the plaintiff to a return of the premium. Messrs. Pendleton, Hamilton, and Harison, for the defendants. Messrs. Golden and Hoffman, contra. THOMPSON, J. The objections stated to Malibran's competency are on the ground of interest, and because his name appears in the policy, which purports to be made by the plaintiff for account of himself, or Peter Mali- bran, or John Murray & Son and the plaintiff. I think, under the circumstances stated in the case, Malibran was a competent witness. It has been settled in this court, that it must be an interest in the event only, that will totally exclude a witness. Whatever objection might have been raised on the score of interest, appears to me to have been removed by the release from the plaintiff to the witness, as far, at any rate, as respected *this suit. It [*274 is said, also, that as the interest, in the vessel turns out to be Malibran's, he must be con- sidered as the principal and the plaintiff as his agent, and that the principal ought not to be permitted to disaffirm the acts of his agent. Admitting this principle to be a sound one, it cannot be applied here, without assuming a fact which does not appear in the case, to wit, JOHNSON'S CASES, 3. 1803 STEINBACK v. RHINELANDER ET AL. 274 that the plaintiff was the agent of Malibran. No evidence whatever appears, that will afford any ground to conclude that the plaintiff was either the general agent of Malibran, or that he was in any way authorized or requested to effect this insurance. On the contrary, the fact is negatived, as far as it could possibly be, by proof. Nor can I see any principle of general policy, which can be urged to exclude this witness. Because his name appears in the policy, is not, of itself, in my judgment, a suf- ficient objection, when, at the same time, it appears, that it was altogether unauthorized, .and without his knowledge, and, as I consider it, by mistake, or rather through want of cor- rect information, as to the situation of this vessel in point of interest. All these circum- stances with respect to Malibran's situation were proper to urge against the credibility of the witness ; but they have been decided upon by the jury, whose province it was to give them their just weight. With respect to the second objection, this, like many other cases, is one where the gen- eral rules of law seem not so much controverted .as their applicability to the case. The pre- mium paid by the insured, and the risk which the insurer takes upon himself, are considera- tions each for the other. The insurer shall not be exposed to the risk, without receiving the premium ; nor shall he retain the premium, which was the price of the risk, if in fact he runs no risk. The rule laid down by Lord Mansfield, in the case of Tyrie v. Fletcher . CUMMINS. Contract to Convey Land Breach Liquidated Damages. Penalty. A and B entered into a written agreement, by which A agreed to convey to B 700 acres of land to be appraised, in part payment for a farm, valued at $3,7oO, which B agreed to sell to A, and it was cove- nanted that in case either party failed to fulfil the agreement, the party failing to perform, " should forfeit and pay to the party who should fulfil the agreement, the sum of $2,000, as damages." It was held that the 2,000 was, according to the intention of the partie_s, as inferred from the whole agreement, to be considered as a penalty, and not as stipulated damages. Citations 4 Burr., 2228 ; 2 Term Rep., 34. THIS was an action of debt, for $2,000, founded on an agreement made between the parties, for the exchange of certain lands, whereby the plaintiff agreed to let the defend- ant have 700 acres of land, in the County of Ontario, at the appraisal of men, in part pay- ment for a farm which the defendant agreed to sell the plaintiff, lying in the town of Ca- naan, in the County of Columbia, valued at $3,750. The agreement, after mentioning the terms of the exchange, contained the follow- ing covenant : " And it is further covenanted in and by the said agreement, by and between the said parties, that in case of failure to ful- fil the aforesaid agreements or covenants, on the part of either of the said parties, that the party not fulfilling the said agreement shall forfeit and pay to the other party who shall fulfil the said agreement, the sum of $2,000 damages." And the question now submitted to the court was, whether that sum was to be considered in the nature of a penalty, or as damages liquidated and agreed on between the parties, to be recovered against the party in default. The case was submitted to the court with- out argument. "THOMPSON, J., delivered the opin- [*298 ion of the court : I think this sum ought to be considered as a penalty, and not as liquidated damages. The real intention of the parties ought to be sought after, and carried into effect. NOTE Penalty Liquidated Damages. The entire penalty was recoverable at common law in case of forfeiture until courts of equity inter- posed to prevent the recovery of more than was warranted by good conscience. Blk. Com., book 2, ch. 20, p. 341 ; Sedgwick on Damages, Vol. II., 203 ; Hale v. Thomas, 1 Vern., 349; Steward v. Rumball, 2Vern.,509; Duvall v. Terry, Shaw., Par. Cas., 15. By act of 4 Anne, ch. 161, sec. 12 and 13, the rule of law was modified to conform to the practice of equity, and this legislation, having been followed in this country, it is now the general rule here as in England. See statutes of the various States. Under this rule the recovery is only the amount of dam- ages actually shown to have been sustained. Lord v. Gaddis, 9 la., 265; Hallock v. Slater, Id., 599; Brown v. Belloms, 4 Pick., 178 ; Moore v. PlatteCo., JOHNSON'S CASE*, 3. 1803 THE PEOPLE v. FKANKLIN. 298 where it can be discovered from the instru- ment itself. If recurrence be had to this agreement, it never can be presumed that the parties had the sum in view as the measure of damages ; for the full value of the defendant's property, which was to be exchanged, was only $3,750, and the value of the plaintiff's considerably less. It would be a strange con- struction to suppose that the damages, on a failure in fulfilling such a bargain, should be $2,000. It is true that where it is clearly in- ferable, from the nature and terms of the con- tract, that the parties have estimated and liquidated the damages, and have inserted that sum, as the amount to be paid, in case of non- performance, the court would be bound so to consider it. The cases, however, in the books (4 Burr., 2228 ; 2 Term Rep., 34), where pen- alties have been considered in the nature of liquidated damages, are either where it ap- pears from the contract that the penalties have barely exceeded the damages sustained, or where, from the nature and circumstances of the case, no rule for estimating the actual damages could be adopted, or it was mani- festly the intention of the parties that the sum, inserted should be considered as a compensa- tion, and not as a penalty. But those cases by no means compare with the present. This is a case of strict penalty, and for which there does not appear to be any equivalent to the other party. To consider this $2,000 as the measure of the damages in the present case, would be ' excessive and unreasonable in the extreme. We are, therefore, of opinion that it must be viewed only in the nature of a pen- alty, and that the plaintiff ought to assign 299*] *breaches under the statute, and as- sess the damages by a jury. Judgment accordingly. 1 Cited in 7 Cow., 310 ; 17 Wend., 454 ; 2 Edw., 475 60 N. Y., 412 ; 12 Barb., 373 ; 16 Abb. N. S., 405. 1. In Astley v. Weldon (2 Bos. & Pull., 346), Lord Eldon, and the other judges of the Court of C. B., acknowledge the difficulty of laying down any prin- ciple for the decision of cases of this nature. That case was an action of assumpsit, on an agreement made with a theatrical performer, in which it was stipulated, at the conclusion, "that if either party neglected to perform the agreement, according to the tenor and effect and true intent and meaning thereof, he should pay to the other the full sum of 200, to be recovered," &c. And the court held that the sum was a penalty, and not liquidated damages. The different adjudications on this subject are stated, and examined, by Mr. Evans, in the appen- dix to his translation of Pothier on Obligations. (Vol. II., p. 93-98.) He inclines to the opinion that the penalty ought to be regarded as stated damages, unless there is some particular reason, in the nature of the contract, to the contrary ; and his observa- tions are calculated to excite doubts as to the cor- rectness of the above decision. THE PEOPLE v. FRANKLIN. Forgery Bitt of Exchange Insufficiency of Indictment. In an indictment for forging a bill of exchange or bank bill, it is not necessary to insert the marks, letters or figures used in the margin of the Dill, for ornament, or the more easy detection of forgeries, as such marks or cyphers form no part of the bill. rPHE prisoner was indicted for forging a bill -L of exchange, drawn by George Desbrough, Commissary-General of the British wind- ward and leeward islands, on the commission- ers of the treasury in London. The bill produced in evidence contained various letters and marks, in cypher, in the margin, which were used in the genuine bills, for the purpose of rendering the detection of forgery more easy, and which marginal letters or cyphers were omitted in the description of the bill in the indictment. It was objected that the variance, in this re- spect, between the bill described in the indict- ment, and the one offered in evidence was fatal. Per Curiam. It was not necessary to insert the marginal cyphers or marks in the indict- ment, for they make *no part of the [*3OO bill. It might as well be required that the water-marks and a fac simile of all the en- graved ornaments used in a bank bill, for the more easy detection of forgeries, should be in- serted in an indictment. 2 Cited in 52 N. Y., 305. HILDRETH v. HARVEY, Impleaded with BEECKER. Attorney Death Notice to Appoint Another. Where the attorney of a party dies, actual notice or warning must be given to him to appoint an- other attorney. A notice put up in the clerk's of- fice, or a notice of the proceedings in the cause, is not sufficient. Citation 2 Johns. Cas., 411. MR. VAN VECHTEN, for the defendant, moved to set aside the interlocutory judg- ment, final judgment, and execution in this cause, on the ground that the defendant's attor- ney died before the entry of the judgment, and that the defendant had not been warned to ap- point a new attorney, pursuant to the direc- 2. See Commonwealth v. Bailey, 1 Mass. Rep., 62. 8 Mo., 467 ; Jackson v. Baker, 2 Edw. (N. Y.), 471 ; Colwell v. Lawrence, 38 Barb., 643 : Thoroughgood v. Walker, 2 Jones (N. C.), L. 15; Curry v. Larer. 7 Pa. St., 470 ; Bearden v. Smith, 11 Rich. (S. C.), L. 554; Robinson v. Cathcart, 2 Cranch C. C., 590; Wilcus v. Kling, 87 111., 107 ; Kennedy v. Rich- ardson, 70 Ind., 524; Scofield v. Tompkins, 95 111., 190; Burr v. Todd, 41 Pa. St., 206 ; S. C., 35 Am. Rep., 160 ; Berry v. Harris, 43 N. H., 376 ; Ricketson v. Richardson, 19 Cal., 330; Dehler v. Held, 50 111., 491 ; Battey v. Holbrook, 11 Gray, 212. This rule applies to statutory 7>onc?,s. Bennett v. Brown, 31 Barb., ]58 ; 20 N. Y., 99 ; Silsbe v. Lucas, 53 111., 479. But parties may agree on luruidated, stipulated, or stated damages, and whether the sum mentioned is JOHNSON'S CASES, 3. a penalty or liquidated damages is a question of construction. Perkins v. Lyman, 11 Mass., 76 ; Fo- ley v. McKeegan, 4 la., 1 ; Gomer v. Saltmarsh, 11 Mo., 271; Brewster v. Edgerly, 13 N. H., 275; Lind- say v. Ansley, 6 Ired. (N. C.), L. 186 ; Maurice v. Bradey, 15 Abb. (N. Y.) Pr., 173 ; Hosmer v. True, 19 Barb., 106; Streeper v. Williams, 48 Pa. St., 450; Durst v. Swift, 11 Tex., 273 ; Cowell v. Burroughs, 53 Pa. St., 329; Williams v. Vance, 9 S. C., 344; Gowen v. Garrish, 15 Me., 273; Iveson v. Althrop. 1 Wyo. Ter., 71 ; De Lavcllette v. Wendt, 75 N. Y., 579 ; Birdsall v. St. By. Co., 8 Daley (N. Y. ), 419 ; Louis v. Brown, 7 Or., 326. For a full discussion on this subject see Sedgwick on damages, 7th Ed., Vol. II., pp. 200-264 and authori- ties there cited. 703 300 SUPREME COURT, STATE OP NEW YORK. 1803 tious of the act. (Sess. 24, ch. 32, sec. 5.) The affidavit which was read, also stated that the defendant had a good and substantial de- fense. Mr. Etnott, contra, read an affidavit, stating that the attorney lived in the same town with the defendant, who must have known when he died ; that a notice had been put up in the clerk's office, directed to the defendant, re- questing him to appoint another attorney, and that notice of executing the writ of inquiry had been sent to the defendant by post. Per Guriain. The statute is peremptory and decisive, that "where any attorney shall die, or cease to act, or be put out of the roll, the person for whom he was attorney shall be warned to appoint another attorney in his 704 place." A constructive notice or warning is not sufficient, nor is it enough that the de- fendant knew of the death of his attorney. A notice put up in the clerk's office, or of execut- ing a writ of inquiry, is not such notice as the act *requires. The final judgment and [*3O1 execution must be set aside with costs ; but the interlocutory judgment, having been entered previous to the death of the attorney, must stand. It appears to have been entered after argument on demurrer ; and, according to the decision in Seaman v. Has/an (2 Johns. Cases, 411), it is too late after judgment is en- tered up, and the term over, to apply for leave to withdraw the demurrer. Cited in Col. and Cai., 486 ; 81 N. Y., 232. JOHNSON'S CASES, 3. [END OK JANUARY TERM.] CASES ADJUDGED IN THE COURT FOR THE CORRECTION OF ERRORS STATE OF NEW YORK, IN FEBRUARY, 18O2, A7V 1_> MARCH. 18O3. 3O3*} *DOMINICK LYNCH AND THOMAS STOUGHTON, Appellants, v. JOSEPH IGNATIUS DE VIAR, Adminis- trator of DON DIEGO DE GARDOQUI, De- ceased, Respondent. Commercial Adventure Interest in Considera- tion Paid Account Rendered Refusal to Settle Recovery Interest. A, in 1789, advanced to B, a merchant, a sum of money, in consideration of which B engaged that A should be interested in certain commercial advent- ures of B, in proportion to the sum advanced ; and promised to render an account to A of the proceeds, and pay to him his proportion thereof. In September, 1794, B rendered an account of the adventures to A, and offered to come to a settlement, if A would give up the written engagement of B, which was refused. A died, and his administrator in 1799 filed a bill against B for an account, &c., and it was held that A was entitled to recover, not only the principal of the balance due for his proportion of the proceeds of the adventures ; but interest from the time B received the money, or, at least, from the time.he offered to come to a settlement in Sep- tember. THE respondent, on the 30th July, 1799, filed his bill against the appellants, in the Court of Chancery ; alleging, among other things, that the intestate, Don Diego, in his lifetime, and between the years 1789 and 1794, made advances of considerable sums of money to the appellants, then carrying on trade, as copartners, under the firm of Lynch & Stough- ton. In consideration of these advances, the appellants engaged to the respondent to give him an interest, proportioned to the advances, 3O4*] in *several cargoes of goods and mer- chandise, to be shipped by the appellants to Canton and other foreign parts. The cargoes were accordingly shipped by the appellants, and were afterwards sold by I them or their factors, in foreign parts, to great ' profit. The proceeds of the cargoes were in- vested in other cargoes and shipped to the ap- pellants, in the city of New York, where the same arrived, and were afterwards sold by the appellants to great profit, and the proceeds of the sales were received by the appellants. Gardoqui, in his lifetime, often applied to the appellants, and requested them to render him an account of the cargoes and of the sales thereof, and to pay him what, upon a balance of the account, should be found fairly due him ; and the appellants neglected to comply with these requests. Gardoqui died intestate, on the 12th Novem- ber, 1798, and administration upon his estate was granted, in due form of law, to the re- spondent. The respondent afterwards applied to the appellants, and requested them to render him, as the administrator of Gardoqui, an account of the cargoes and of the sales thereof, and to pay to him what, upon a balance of the account, should be found fairly due to the estate of Gardoqui ; but the appellants neglected to comply with the request. The bill concluded with a prayer for a discovery, for an account, and for the payment to the respondent of the balance which should be found justly due to the estate of Gardoqui. The appellants, in their answer, admitted that on or about the 18th February, 1789, being copartners in trade under the firm of Lynch and ought to have been a party to the suit. appellant gave William Green a promissory note for $1,551.64, payable to him or order at the Bank of New York, on the first day of May, 1798. That to secure the payment of the" note, Jonas Platt executed to Green a mortgage on two lots of land, which he held in trust for the appellant; which mortgage was duly proved and registered. Green, being in- debted to the respondent in the sum of $1,491.- 11, by a promissory note, payable to him or order the 3d March, 1798, as collateral security for the payment of that note, in October, 1796. indorsed the appellant's note to the respondent, and delivered it to him, with the mortgage, for a full and valuable consideration, and the ap- pellant had notice of such indorsement, shortly thereafter, *and before the note became [*323 due. That the note of the appellant was not paid when due, though regularly demanded and protested, and it -remained still unpaid, and the respondent, therefore, prayed that the appellant might be decreed to pay the note, or that the mortgaged premises might be sold for that purpose. The appellant demurred to the bill, because it did not appear that Green had assigned the mortgage to the respondent, or devested himself of the estate or interest in the prem- ises, and that Green was still interested there- his bill in the court below, or to amend the -322*] same, *by adding other parties thereto ; and in case he shall elect to amend the same, that then the present parties have leave to use all depositions and other testimony already taken in the cause, as between them, subject to all just exceptions ; that each party shall pay his own costs in this court ; and that the costs in the Court of Chancery abide the further order of that court, on a final decree. Judgment of reversal. Cited in 19 Hun, 449; S. C., 57 How., 405 ; S. C., 6 Abb. N. C., 484 ; 1 Sawy., 342. JOHNSON'S CASES, 3. The demurrer was overruled, the 17th May. 1800, and the appellant thereupon put in his answer to the respondent's bill, and admitted the note and mortgage, and that the money due thereon was unpaid, but denied that Green ever assigned or transferred the mortgage. The answer further stated that the appellant was informed by Green, in March, 1800, that he, Green, applied to the respondent for the loan of $1,061 on usurious interest, and that the note and mortgage were put into the hands of NOTE. As to partits, who should be made. note to preceding case, Hickock v. Scribner. See 711 323 COURT OF ERRORS, STATE OF NEW YORK. 1803 the respondent, as a collateral security for the payment of such loan, and he contended that the interest in the mortgage was still in Green, who ought to have been a party. On the 29th November, 1799, Jonas Platt put in his an- swer to the respondent's bill, and stated that he took a deed of the premises from Green in trust for the appellant, because he was at the time an alien, and conveyed the same back, by way of mortgage, to secure the consideration money, being the note above mentioned ; and that he had otherwise no interest in the mat- ters litigated between them. On the hearing of the cause in the court below, the receipt of the respondent, dated the 2d September, 1796, was proved, in which he acknowledged to have received of Green, as collateral security for the note of $1,491.11, payable the 3d May, 1798, the note of 324*] *the appellant which was secured by the mortgage aforesaid to Green, but not as- signed to him. The Chancellor directed the principal and interest due on the mortgage to be ascertained, and the premises to be sold to pay the same, and the residue of the money (if any) to be brought into court. From this decretal order there was an appeal to this court by the defendant below, and he contended that the decree ought to be re- versed. 1. Because it does appear from the plead- ings that William Green has, at least, a legal estate in the mortgaged premises, and ought, therefore, to have been made a party to the bill of complaint. 2. Because it does not sufficiently appear that the respondent hath any interest, or lien, on the premises. 3. Because if any assignment or transfer of the mortgage or mortgaged premises wag ever made by William Green to the respondent, yet no memorandum thereof in writing, signed by Green, appears to have been made, and the same is therefore void by statute. 2. Because, if any such assignment was ever made, the consideration thereof was usurious and unlawful, and the same is there- fore void. The respondent, on the contrary, insisted that the order ought to be affirmed. 1. Because the mortgage executed by Jonas Platt to William Green, and the note accom- panying the same, were deposited by Green with the respondent, as a security for the pay- ment of the debt due from Green to the re- spondent, and such deposit is regarded by a court of chancery as an equitable mortgage. 2. Because, it being admitted that the ap- pellant had paid no part of the money secured by the mortgage, it is apparent that he can have no account to settle with William Green respecting the debt, and, therefore, the ap- pellant can have no interest in making Green a partv to the suit. - 325*] *3. Because the appeal from the order overruling the demurrer has not been made in due time. 4. Because it is now too late for the appel- lant to avail himself of the want of parties in this cause. 5. Because William Green having, by the deposit of the mortgage, parted with all his 712 equitable interest therein, it was not necessary to make him a party to the bill filed by the respondent. Mr. Emott for the appellant. Mr. Hoffman, contra. RADCLIFF, J. 1. Admitting that trusts in equity are governed by the same rules as legal estates, I think the objection founded on the alienism of the appellant is not well taken. It appears to have been settled, from the time of Lord Coke, that an alien may purchase and hold lands, and even maintain an action for them, if the crown, in England, or the people here do not interpose. A purchase by him is not an offense whereby a forfeiture is neces- sarily incurred ; but the government, on prin- ciples of policy, may interfere and deprive him of his title. The estate, however, is vested in the alien, to all purposes, until an actual exer- cise of* the right by the people, by office found, or until the death of the alien ; in which case, as he can have no heirs, and his title cannot descend, it immediately reverts to the people, and no office is necessary. If an alien has a right to purchase and hold, the objection fails, and he must have an equal right to con- vey or mortgage his estate, and the purchaser or mortgagee will be equally entitled to hold the premises. 2. But the second objection appears to me well founded, and supported by considera- tions which are important and decisive in favor of the appellant. It is true, this objec tion comes with an ill grace from him, be- cause, by paying his debt and redeeming the mortgage, he could, at *once, put an [*32(> end to all controversy on the subject. Yet this circumstance, however it might incline the scale in a doubtful case, cannot authorize a departure from established rules. These rules in relation to parties are well settled ; and they are not arbitrary, but founded on principles that are essential to the protection of individual rights and the distribution of justice. They are so many landmarks from which it would be dangerous to depart, except we have other guides equally safe and obvi- ous. To consider the merits of this objection, as applied to the present case, it is necessary distinctly to observe the several interests of the parties concerned. The mortgage being- executed to Green, vested in him the legal es- tate. This mortgage was never assigned, nor did Green ever execute any instrument or con- veyance by which the title at law could be transferred to another. The indorsement of the note could not have that effect. That in- dorsement, by virtue of the statute concern- ing promissory notes, transferred the legal as well as the equitable title to the note, but it transferred the note only. From its nature and its terms, independent of the statute of frauds, it can have no other operation. At the same time, I am satisfied that in equity the disposition of the debt would draw after it the right to the legal estate as its security. The debt, for this purpose, is considered as the principal, and the security, whether by mort- gage or otherwise, as the accessary. The transfer of the note, therefore, to the respond- ent, Hart, carried with it a right to claim the JOHNSON'S CASES, 3. 1803 AYLMER. JOHNSON v. EPHKAIM HART. benefit of the mortgage security, and a court of equity will enforce this right against Green, and oblige him, if a party, to do and submit to every necessary act to carry it into effect. But this is an equitable right only. The trans- fer of the note could not, in fact, convey the legal estate. A determination that it did, would, I believe, extend beyond any doctrine hitherto known in our law, and tend to con- found all distinctions between legal and equi- table estates. I can easily conceive that the 327*] indorsement *of the note transfer- red to Hart a right in equity to the benefit of the mortgage, for the security of his debt, and that the fee still resided in Green, but I can- not understand how the simple indorsement of the note, by any rule of law, should have the power of transferring the legal estate. This appears to me a novelty and a fiction, which would dispense with the legal forms of con- veyance, and, therefore, ought not to pre- vail. It is true, that a debt, although secured by mortgage, is considered as personal estate, and may be disposed of as such. It may be devised as a debt. It is considered as assets in the hands of executors and administrators ; and a transfer of the debt will carry with it the title to the mortgaged security. As between the mortgageor and mortgagee, the extinguish- ment of the debt has also been held to extin- guish the mortgage. The debt, in that case, is presumed to have been paid at the day, or accepted instead of such payment, and the estate of the mortgagee to be thereby defeated at law, as well as in equity. But these princi- ples do not govern the present case. The question is not, whether the debt shall be con- sidered as personal property, and be disposed of as such, nor what shall be the operation of an extinguishment of the debt, as between the mortgageor and mortgagee. The mortgage, in this case, remains unsatisfied, and exists in full force, and the question arises upon its legal assignment to another. For the reasons which have been given, I am of opinion that no such assignment has been made, to carry the estate at law ; that the fee is, therefore, still vested in Green, and that the respondent, Hart, has no more than an equitable right to the benefit of the mortgage. It is clear that the other parties, Johnson and Platt, have no greater interest. Their right is the equity of redemption merely. All the parties before the court are, therefore, pos- sessed of equitable interest only, and the legal estate is vested in Green, who is not a party. 328*] Yet *the Chancellor has decreed the whole estate to be sold. It is certain that a decree can never affect the interest of a party not before the court. It can only operate on the interests of those who are parties to the suit. On this ground, therefore, as far as the decree directs the sale of the legal estate which is vested in Green, it must clearly be errone- ous. In another view, I think this decree was equally improper. The note made by John- son, the appellant, to Green, and the mortgage accompanying it, admitting them both to have been legally assigned, were assigned to the re- spondent, Hart, as a collateral security only, for the debt due from Green to Hart. It was JOHNSON'S CASES, 3. so expressed in the receipt given by Hart, and, the debt due from Johnson to Green was also larger in amount than the debt from Green to- Hart. It is evident, therefore, that Green did not part, nor intend to part, with his whole demand against Johnson. The note and mort- gage were assigned or delivered, not absolute- ly, but as a security merely. Green, there- fore, has an interest in that security. If it prove incompetent, he will be liable to make good the deficiency. If it be more than suffi- cient, he has an interest for the surplus of his demand against Johnson beyond his own debt. It is no answer to this to say that the respond- ent, Hart, is willing to pay the surplus as this court may direct for the benefit of Green. There is no one here to receive it. Green is not before us ; he is a stranger to the suit, and no court will become bankers for others, in order to cure the errors in the proceedings of any party before it. Besides, there is another and a more impor- tant consideration in the case. If we affirm this decree, we establish not only the debt against Johnson, but the demand of Hart against Green, who is not a part}', and has had no opportunity to be heard in his defense. Hart, as has been already shown, has no inter- est in the note and mortgage against Johnson and Platt, except for the security *of [*32J> his own debt against Green, and yet we do not know that his debt against Green ought ever to be recovered. For aught that appears, it may have been paid, or the note may original- ly have been given for an illegal or a void con- sideration. It may, as has been alleged by Johnson, be usurious. No one can answer these points but Green. He is principally, if not solely, interested, and is entitled to make a defense on these or any other grounds ; and yet, by this mode of proceeding, he is effectu- ally precluded from doing it. If usury ex- ists, this would be an easy and secure method to escape the inquiry, and elude the statute ; and if there be any other defense, it would be still more oppressive. It follows, that the de- cree, without a hearing, directly and essen- tially affects the interest of a party who is not before the court, and the case in this respect, I think, is as strong as that of Hickock v. Scrib- ner, decided during the present session. Pur- suing the principles adopted in that case, and for the other reasons which have been men- tioned, I think the Chancellor's decree ought to be reversed ; and that, in this case, as in the other, we ought to direct that the com- plainant below have leave to dismiss his own bill, or add new parties, as he shall be advised, on payment of costs in the court below. KENT, J. If Green had passed Johnson's note absolutely to Hart, I should have no diffi- culty in approving of the decree, and that, too, without giving any opinion on the operation of a deposit of title-deeds. Here was a note given to Green, which was secured by a mortgage. Wherever the note goes it will carry the charge upon the land along with it. The estate in the land is here the same thing as the money due on the note. It will be liable to debts ; it will go to executors. It will pass by a will not made with the solemnities of the statute of frauds. The assignment of the debt, 71* COURT OF ERRORS, STATE OF NEW YORK. 1803 or forgiving it, even, by parol, draws the land 33O*] after it, as a consequence. The *right to the land will follow, notwithstanding the statute of frauds. This doctrine was estab- lished by the Court of King's Bench as early as the year 1760 (2 Burr., 978, 979); and ac- cording to this doctrine, when Green dulj' negotiated his note to Hart, the interest in the mortgage, which was given for no other pur- pose but to secure that note, passed of course. It required no writing, no assignment on the back of the mortgage. The assignment of the note applied equally to the note and the pledge. The one was but appurtenant to the other. Whoever was owner of the debt, was likewise owner of the security. There must be some- thing peculiar in the case, some very special provision of the parties, to induce the court to separate the ownership of the note from the ownership of the mortgage. In the eye of common sense and of justice they will gen- erally be united. By the transfer, then, of the note to Hart, the mortgage went with it, and the same interest passed in the one as in the other. Had this been an absolute transfer, there could have been no good reason for requiring Green to be a party to the suit, because he had no further interest in the subject. He could not be con- sidered as having any longer even the estate at law in him. From the doctrine to which I have referred, he would be considered at law, as well as in equity, as having passed all his interest in the mortgage, by the assignment of the note. The assignment of the one would be deemed an assignment of the other. But, in the present case, it appears, from a receipt of Hart, that he took the note for $1,551.64 to secure the payment of a note he held against Green for $1,491.11. Both notes were payable within three days of each other, and, consequently, Hart took, by way of col- lateral security (as he himself admits), a note for a greater sum secured by a mortgage, as a pledge for the payment of a lesser sum. The difference between the two notes was $60.53, and Green had a right to redeem his larger 331*] note *and mortgage on paying the lesser sum. He has a substantial interest in such a redemption, because he thereby regains a security for the payment of the balance of $60.53 due him. By not being a party to the suit, he has no opportunity to redeem, and the land may be sold without his knowledge. Here are two mortgagees : Johnson, who mortgages to Green, and Green, who mortgages to Hart, and both ought to be made parties, and for the same reason. Although their interests may not be equally extensive, yet the rules of justice ap- ply with equal force and precision to the smaller, as to the greater interest. On this ground, I deem the decree errone- ous. Green had an interest in the subject ; a right to redeem, in order to secure the balance coming to him, and he ought, therefore, to have been made a party to the suit below. Green ought also to have been made a party, in another point of view. If he has, in fact, paid his note to Hart, Hart has no further interest in Johnson's note and mortgage ; for Hart took it only to secure the note from Green. And how can we know, as Green has 714 not been called in to answer, but that he has paid his note to Hart? We certainly cannot know this ; and yet the decree goes on the pre sumption that Green has neglected to pay his note to Hart. It can go on no other presump- tion. But the court had no authority to con- clude Green to be in default till he had been heard. Such a proceeding would contradict all the maxims of justice. In answer to this, it may be observed that we have on file an affidavit of Green, stating that he has not paid his note to Hart. But that affidavit cannot be received as evidence to that point, because it is wholly irrelevant to the matter in issue, as the suit stood, between Johnson and Hart. Green would have a right, notwithstanding that affidavit, to exhibit his bill against Hart, to obtain a redelivery to him of Johnson's note and mortgage, or of moneys arising there- from ; and Hart would be obliged to answer and. *show that Green had not paid [*332 him, and to show this by the production of the note itself. By omitting to make Green a party to the suit, the decree does not, as de- crees ought to do, close the door against fur- ther litigation on the subject. In judgment of law. Green is a stranger to the present suit, since he is no party on the record, and yet his rights are essentially involved in the litigation. My opinion, accordingly, is, that Green ought to have been a party. 1st. To have enabled him to redeem the note and mortgage of Johnson by paying his own. 3d. By enabling him to show, if he could show, that he had in fact paid his own note, and so was entitled to a re-assignment of the note and mortgage of Johnson. The decree, therefore, I think, ought to be reversed, and the complainant below to be at liberty to dismiss or amend his own bill, as he shall elect, on payment of costs. The court being of opinion that the de- cree ought to be reversed, it was there- upon unanimously ordered, adjudged and decreed, that the decretal orders of the Court of Chancery be reversed, and that the respond- ent have leave to dismiss his bill in the court below, or to amend the same by adding proper parties, on payment of the costs of that court. Judgment of reversal. l Explained-61 N. Y., 118. Cited in Ante, 113 ; 11 Johns., 538 ; 7 Wend., 368 ; 1 Barb. Ch., 359; 7 Johns. Ch., 147; 1 Paige, 56; 2 Paige, 295 ; 6 Paige, 586; 1 Sand. Ch., 78 ; 12 N. Y., 508 ; 21 N. Y., 364 ; 54 N. Y., 608 ; 64 N. Y., 658 ; 11 Abb. N. S., 151 ; 3 Leg. Obs., 126 ; 33 Super., 76 ; 1 Woods., 220. *THE PEOPLE v. PEASE. [*333 Witness Competency Prison for Life Pardon Proviso Disabilities. ! A having been convicted of forgery, was sen- I tenced to the State Prison for life. He was after- j wards pardoned by the governor. The pardon con- tained a provision that it was not to be construed I so as to relieve A from the legal disabilities arising ! from his conviction and sentence, &c., but only i from the imprisonment. 1. See Green and Johnson v. Hart, in error, 1 i Johns. Rep., 580. JOHNSON'S CASES, 3. 1803 THE PEOPLE v. PEASE. He was afterwards offered as a witness for the people, on a trial for an indictment, and admitted to testify, although objected to as incompetent. It was held that the proviso in the pardon being' in- congruous and repugnant to the pardon itself, ought to be rejected, and that the witness was com- petent. prisoner, Pease, was indicted for grand J- larceny in stealing a quantity of shoes and leather, the property of Noah Gardner, a shoemaker. At the trial, the Attorney- General offered Gardner as a witness. The counsel for the prisoner objected that Gardner had been convicted of forgery and sentenced to the State Prison, and was, therefore, an in- competent witness. The Attorney-General admitted the conviction and judgment, but alleged that having been pardoned by the .governor, he was restored to his competency. The pardon was then produced under the great seal of the State, dated the 4th May, 1801, by which the witness " is pardoned, re- mised, and released, of and from the forgery, conviction, sentence, and imprisonment, &c., -so far as the same extends to the said imprison- ment : provided always, and it is hereby de- clared. that nothing therein contained is in- tended, or shall be construed, so as to relieve the said Noah Gardner of and from the legal disabilities to him, from the conviction, sen- tence, and imprisonment aforesaid, other than the said imprisonment. " The prisoner's counsel then contended that by this pardon the legal disability of Gardner was not removed, and that he was still an in- competent witness ; but the court below over- ruled the objection, and he was sworn, and testified against the prisoner, who was con- victed. VAN VECHTEN, Senator. The defendant stands convicted of grand larceny, on the evi- dence of Noah Gardner, who, having been convicted of forgery, was sentenced to im- prisonment in the State Prison for life. Gard- ner was afterwards pardoned by the executive, but in his pardon is contained a proviso, that 334*] it shall not be construed to *remove the legal disabilities which attach to him on his conviction and condemnation. The question for the decision of this court is, whether the pardon to Gardner renders him a competent witness. It is admitted, on all sides, that the right of pardoning, in cases of forgery, resides in the governor of this State to the same extent as in the King of Great Britain. Hence it is ma- terial only to ascertain whether the pardon of the governor does away all the consequent legal disabilities which have attached to him. The disabilities to which I refer, form no part of the judgment against a convict, but are the legal marks of infamy which it fixes upon him. When, therefore, the judgment is par- doned, the legal infamy flowing from it is equally disposed of by the pardon. For the proposition appears to me untenable that the judgment to which those disabilities are mere- JOHNSON'S CASES, 3. ly consequential can be released, and yet the disabling effect thereof remain. This doctrine I take to be perfectly consist- ent with the spirit of the authorities cited in the course of argument, that the operation of a pardon shall not be extended beyond its strict import, because a general pardon neces- sarily imports that the personal incapacities of the convict, dependent on the judgment against him, are thereby removed. In En- gland, the forfeiture of the property of con- victs, in certain cases, is superadded to cor- poral punishment ; and there it is clearly set- tled that a pardon of the conviction and judg- ment removes all those incapacities, but does not save the forfeiture without express words of restitution. And hence it is manifest that the distinction which I have taken respecting the effect of a pardon, as to personal incapaci- ties, and other consequences resulting from a conviction for an infamous crime, is fulJy admitted in the English courts. In this State the reason for considering the removal of the personal disabilities of a con- vict, as included in the general effects of a pardon, is much stronger. For, by *our [*335 law, a person sentenced to imprisonment for life in the State Prison is declared to be civilly dead. He is not only disqualified as a witness, but is devested of all his civil rights and relations. All these are legal disabilities flowing from the judgment pronounced against him. In what situation, then, will such a con- vict be, if a pardon granted to him does not extend beyond his liberation from confine- ment? He will be recognized by the pardon as a person legally raised from the tomb of the State Prison, and by a proviso of the kind now under consideration, it will be declared in the same pardon, that, to every legal intent, he shall be considered as remaining in his civil grave. This incongruity between the pardon and proviso renders the rejection of the latter indispensable, in order to give a legal effect to the former. With respect to the power of the executive to annex conditions and restrictions to pardons, I do not percive that my doctrine destroys it. Those conditions and restrictions may be imposed, in various ways, without involving the absurdity which I have stated, and with- out impairing the executive power of making full evidence of the reformation of the con- vict, a condition precedent to a general pardon. The punishment may be mitigated, or it may be changed from imprisonment to voluntary transportation ; but every condition and re- striction annexed to a pardon must be reason- able and consistent with the sound rules of law. I am, therefore, of opinion that Noah Gard- ner was a competent witness, and that the con- viction of Pease is legal. Per totam curiam. Judgment of the Supreme Court affirmed. I Cited in 1 Edm., 243 ; 4 Legal Obs., 180 ; S. C., 1 I Park, 53 ; 10 Peters, 568 ; 21 Ohio St., 420. 7U [END OF THE CASES IN ERROR.] APPENDIX. The nature and magnitude of the questions discussed in the following case, which came before the Supreme Court subsequent to the time of these reports, will, it is believed, render any apology unneces- sary for its insertion as an appendix to this volume. It was obligingly communicated to the reporter by a person of great legal eminence, on whose accuracy and judgment the utmost reliance is placed It is proper, however, to remark that the brief sketch of the arguments of counsel is not given with a view to exhibit, in any degree, the solid and ingenious reasoning, or the powerful and matchless eloquence, dispayed in this interesting and celebrated cause, but merely to present to the profession the general course of argument, and the legal authorities adduced on a very important and much litigated subject of jurisprudence. . 337*] 'FEBRUARY 13, 1804. THE PEOPLE v. CROSWELL. Libel. On an indictment for libel, can the defendant give the truth in evidence? And are the jury to decide both on the law and the fact ? See Act of the 6th April, 1805, sess. 28, ch. 90. ^TZ Citations Barnes, 442; Hawk., tit. Libels, sec. 1; t Wils., 403 : 1 Esp. Gas., 238 ; Whine's Eunomus, dial. 3, sec. 53 ; 3 Term R., 429, and note ; 2 Salk., 417 ; Essay on the Power and Duties of Grand Juries, p. 7 ; Dagge on Crim. Law, bk. 1, ch. 11, sec. 2 ; Litt., sec. 368 ; Co. Litt., 228 o; 4 Co., 53 /) ; Hob., 227 ; Hist. Com. Law, ch. 12; H. H. P. C., Vol. II., 313; 4 Bl. Com., p. a54; Stat. Westm., 2 (13 Edw. I.) ; 9 Co., 13 a ; Plowd., 92 ; Bracton, fol. 119, a, b; Barrington on the Statutes, 18, 26, 311 ; Vaughan, 149 ; 2 St. Tr., 69, 81, 82 ; Vaughan, 135 ; Sir T. Jones, 13 ; 3 St. Tr., 817 ; 4 St. Tr.; 5 St. Tr., 542; 3 Term R., 429; 9 St. Tr., 255; 11 Mod., 86; 2 Ld. Ravm., 1485 ; 2 Str., 766 ; Foster's Discourse on Homi- cide, 255, 256, 257 ; 10 St. Tr. Appendix, 196 ; 5 Burr., 3661 ; 3 Term R., 430 ; Parliamentary Senator, Vol. V., p. 823 ; 3Term It., 428 ; Senator, Vol. III., p. 647, 650, 651, Vol. V., 686, 822 ; 11 St. Tr., 288 ; 3 Term R., 418 ; Laws of U. S., Vol. IV., p. 204 ; 3 Dallas, 4 ; Stat. 32, Geo. III.; Paley's Moral Philosophy, p. 188; Vinnius Com., lib. 4, tit. 4, sec. 1 ; 1 Hawk., tit. Libel, sec. 3, 6, 7 ; Hud- son on the Star Chamber, p. 102 ; 8 Term R., 297, 298 ; 1 Bos. & Pull., 526; Esp. Dig., 506; 2 Collectanea Juridicia ; Barrington on the Statutes, 68 ; 5 Co., 125 ; Hob., 252; 5 Co., 125, 126 a; Code Lib., 9, tit. 36; Pau- lus Dig., lib. 47, tit. 10, ch. 18 ; Vinnius, Vol. II., 208 ; Stat. West.. 1 Edw., I., ch. 34 ; 2 Rich. II., ch. 5, 11 ; 1 and 2 Ph. & M., ch. 3; Dyer, 155; Senk., 5, c 55; 1 Leon, 287 ; 2 Inst., 226 ; 2 Mod., 1551, 152 ; Fleta, lib. 2, ch. 1, sec. 10 ; 3 Inst., 174 ; 7 Term R., 4 ; 9 St. Tr., 302 ; 1 Bl. Reja., 114, 115 ; 4 Bl. Com., 152, note ; Stat. 13 and 14 Car. n., ch. 33 ; 5 St. Tr., 442, 444 ; 8 St. Tr., 78 ; 9 St. Tr., 303 ; M'Nally on Evid., Vol. II., p. 649 ; 11 Mod., 99 ; Str., 498 ; 9 St. Tr., 269 ; Senator, Vol. V., p. 684 ; Jd., Vol. III., p. 649 ; Journals Congress, Vol. I., p. 57 ; Id., p. 44, 51, 52, 73, 74 ; Str., 189 ; Gilbert's Rep. K. B., 297 ; Moore, 627 ; 7 Term R., 4 ; 1 Lev., 287 ; 5 St. Tr., 445 ; 9 St. Tr., 255 ; 10 St. Tr., 194 ; 4 Burr., 2527 ; 5 Burr., 2661 ; 3 Term R., 428. AN indictment was found against'the defend- ant on a libel, at the General Sessions of the Peace in Columbia County, which was removed, by certiordri, into this court, in Jan- uary Term, 1803, and the issue of traverse thereon was tried, at the Columbia Circuit, in July, 1803, before Mr. Chief Justice Lewis. The indictment was as follows, to wit : "At a. court of general sessions of the peace, holden, &c ; It is represented that. Harry Croswell, late of the city of Hudson, in the County of Columbia aforesaid, printer, being a malicious and seditious man, of a depraved mind and JOHNSON'S CASES, 3. wicked and diabolical disposition, and also deceitfully, wickedly, and maliciously devis- ing, contriving, and intending, Thomas Jeffer- son, Esq., President of the United States of America, to detract from, scandalize, traduce, vilify, and to represent him, the said Thomas Jefferson, as unworthy the confidence, respect, and attachment of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson, Esq., Presi- dent *as aforesaid, the obedience, [*338 fidelity, and allegiance of the citizens of the State of New York, and also of the said United States ; and wickedly and seditiously to dis- turb the peace and tranquillity, as well of the people of the State of New York, as of the United States ; and also to bring the said Thomas Jefferson, Esq. (as much as in him the said Harry Croswell lay), into great hatred, contempt, and disgrace ; not only with the people.of the State of New York, and the said people of the United States, but also with the citizens and subjects of other nations ; and for that purpose the said Harry Croswell did, on the ninth day of September, in the year of our Lord one thousand eight hundred* and two, with force and arms, at the said city of Hud- son, in the said County of Columbia, wickedly, maliciously, and seditiously, print and pub- lish, and cause and procure to be printed and published, a certain scandalous, malicious, and seditious libel, in a certain paper or publica- tion, entitled "The Wasp ;" containing therein, among other things, certain scandalous, mali- cious, inflammatory, and seditious matters, of and concerning the said Thomas Jefferson. Esq., then and yet being President of the United States of America, that is to say, in one part thereof, according to the tenor and effect following, that is to say : Jefferson (the said Thomas Jefferson, Esq., meaning) paid Call- ender (meaning one James Thompson Call- ender>for calling Washington (meaning George Washington, Esq., deceased, late President of the said United States) a traitor, a robber, and a perjurer ; for calling Adams (meaning John Adams, Esq., late President of the said United States) a hoary-headed incendiary, and for most grossly slandering the private characters of men who he (meaning the said Thomas Jefferson) well knew to be virtuous ; to the great scandal and infamy of the said Thomas Jefferson, Esq., President of the said United States, in contempt of the people of the said State of New York, in open violation of the 717 339 SUPREME COURT, STATE OF NEW YORK. [APPENDIX.] 1804 339*] laws of the said State, to *the evil example of all others in like case offending, and against the peace of the people of the State of New York, and their dignity. The defendant applied to the judge, at the circuit, to put off the trial of the cause, on affidavit, which stated that James Thompson Callender, of the State of Virginia, was a material witness for the defendant, without the benefit of whose testimony the defendant could not, as he was advised, safely proceed to the trial of the cause ; that the defendant expected to be able to prove, by the said witness, the truth of the charge set forth in the indictment, so far forth as this : that the said James Thomp- son Callender was the writer of a certain pamphlet called "The Prospect Before Us," and that he caused the same to be printed, which pamphlet contains the charges against Washington and Adams, as in the publication set forth in the indictment, &c., &c., and that Mr. Jefferson, well knowing the contents of the said publication, paid, or caused to be paid, to the said J. T. Callender, two several sums of $50 each, one of which was prior to the pub- lication of the said pamphlet, and the other subsequent to the publication thereof, as a reward, thereby showing his approbation thereof, &c., &c. That it had been wholly out of the power of the defendant to procure the voluntary attendance of the said Callender, at that court, though he had, at the last General Sessions of the Peace, and since, until a few days past, good reason to believe that he would attend, as a witness, at the then court ; and that the defendant expected to be able to pro- cure the voluntary attendance of the said Call- ender at the next circuit court, to be held in the said county, &c., unless the court would grant a commission to examine the said Call- ender, upon the application of the defendant, which he intended to make, at the next term of the court, for that purpose. to this the counsel for the defendant objected ; but the Chief Justice overruled the objection. The witness was examined, and testified that he understood the epithets Jefferson, Wash- ington, and Adams, mentioned in the alleged libel, to be as stated in the innuendoes in the indictment, and that he had seen similar charges, in other papers, previous to the pub- lication in "The Wasp ;" which was one of the reasons which induced his opinion that the innuendoes were correct. The prosecutor having rested on this evi- dence, the defendant offered to prove that he had no agency in devising, writing, or inditing the publication in question, and that the same was handed to be printed to a person in his employ, and in his absence, without his knowledge. To the introduction of this testi- mony the prosecutor objected, and the Chief Justice refused to receive the same, *un- [*34 1 less the defendant meant also to prove that he was not privy to the printing and publication of the alleged libel. This the defendant's counsel did not offer to prove. The defend- ant's counsel proceeded to sum up the evidence, and read a paragraph in "The Bee," a news- paper printed in Hudson by Holt, the per- son in the alleged libelous piece mentioned, to show that he declared the burden of the fed- eral song to be such as mentioned in the libel. Though this had not been previously proved or read in evidence, it was not objected to. In the course of the summing up, on the part of the prosecution, the Attorney-General offered to read certain passages, from number 7 of "The Wasp," and the prospectus contained in the first number, which had not before been shown, or pointed out to the defendant's counsel, or read in evidence. To this objec- tions were made, but the Chief Justice decided that the prosecutor had a right to read such passages, from such numbers of "The Wasp" as he thought fit. The Attornev-General ac- The Chief Justice refused to put off the j cordingly read, in order to show the intent of trial, on this affidavit. It was proved, on the part of the public prosecutor, that the defend- 34O*] ant was editor of a newspaper *entitled "The Wasp," a series of which were printed and published in the city of Hudson. In one of them (number 7) was contained a piece, from which was extracted the matter charged in the indictment, as the libel, the whole of which piece was read by the prosecutor, in the fol- lowing words: "Holt says, the burden of the federal song is, that Mr. Jefferson paid Callen- der for writing against the late administration. This is wholly false. The charge is explicitly this : Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer ; for calling Adams a hoary -headed incendiary ; and for most grossly slandering the private characters of men who he well knew were virtuous. These charges, not a democratic editor has yet dared, or ever will dare, to meet in an open and manly discussion." It was further proved, on the part of the prosecutor, that a file of "The Wasp," from number 1 to number 12, inclusive, was purchased at the office where they had been printed ; from num- ber 1 to number 5 had been sold by the defend- ant, and the residue by one of the journeymen in his office. The prosecutor then called a witness, to prove the truth of the innuendoes ; 718 the defendant in publishing the alleged libel to be such as charged in the indictment, from number 1 of "The Wasp," the prospectus, and another piece from number 7, in neither of which passages was there anything alleged against Thomas Jefferson, in his private or official capacity. The Attorney-General further stated, that from an examination of every mim- ber of "The Wasp," it would be manifest that the intent of the defendant was malicious. The judge charged the jury, among other things, that the rule of law which confined jurors to the consideration of facts alone, was strictly applicable to the case of libels, where the question of libel or no libel was an infer- ence of law from the fact ; and that it was, perhaps, the only case in which courts invari- ably regarded a general as a special verdict; and where they would, ex mero molu, arrest the judgment, if the law was with the defendant. His Honor then read to the jury the opinion of Lord Mansfield, in the case of The Dean of St. Asaph, (as reported *in a note in 3 [*342 Term Rep., 428, and charged them that the law therein laid down was the law of this State ; that it was no part of the province of a jury to inquire or decide on the intent of the defendant; or whether the publication in ques- tion was true, or false, or malicious ; that the JOHNSON'S CASES, 3. 1804 THE PEOPLE v. CROSWEI-L. [APPENDIX.] 342 Cent., 5, case 55.) The form of the ancient precedents was agreeable to this doctrine, and made the essence of the crime to consist in the falsehood; and precedents are the best evi- dence of the common law. There is a form of the record of a conviction in 3 Inst., 174, which grounds the charge on its falsity, quia, litera continet in ne nuttam tteritatem; and in- dictments continued, until very lately, to use the epithet of a libel. only questions for their consideration and de- cision were, first, whether the defendant was the publisher of the piece charged in the in- dictment; and, second, as to the truth of the innuendoes; that if they were satisfied as to these two points, it was "their duty to find him guilty; that the intent of the publisher, and whether the publication in question was libel- ous or not, was, upon the return of the postea to be decided exclusively by the court, and therefore, it was not his duty to give any opin- ion to them, on these points; and accordingly no opinion was given. A motion was made, in behalf of the defend- ant, for a new trial on the following grounds : 1. Because the trial ought to have been put off, in order to give an opportunity to the de- fendant to procure the testimony in the affi- davit mentioned. 2. That the piece alleged to be libelous, and which was read in evidence, from number 7 of "The Wasp," is materially and substan- j tions on the Statutes (68). " The Court of Star ' false," as a substantive description (2 St. Tr., 58, 90 ; Cowp., 672 ; 7 Term Rep., 4.) There is not a *trace [*344 of the contrary position to be met with in the simplicity of ancient times. The opposite doctrine, which mentions that a writing is equally libelous, whether true or false, originated in a polluted source, the des- potic tribunal of the Star Chamber. (Moore, 627, 5 Co., 125.) The decision in Coke was evidently extra judicial, and so it has been considered by Mr. Barrington, in his Observa- tially different from that charged in the indict- ment, and the piece so read is not libelous. 3. For the misdirection of the judge, in his Chamber acted without the aid of a jury, and introduced violent and oppressive principles. But, notwithstanding the sanction of that charge to the jury, that in cases of libel, they court, Lord Coke, when Attorney-General, were not the judges of law and fact ; that in maintained the old common law doctrine case of libel only, could a court set aside a gen- eral verdict of guilty ; that the law laid down in the case of The Dean of St. Asaph is the law of this State ; that the intent was simply a (Hob. , 252) ; and in the trial of the seven bishops (4 St. Tr., 394), Mr. J. Powell, who, according to Lord Camden, was the only honest man upon the bench, charged the jury, question of law, and, therefore, not to be left , that to maintain a prosecution for a libel, it to the jury, but to be decided exclusively by | must appear to be false, malicious, and tend- the court on the return of the postea,; and that ; ing to sedition. The Star Chamber had no whether the piece in question was libelous or j authority to alter the common law. Our an- not, was not to be decided by the jury ; and | cestors, when they emigrated to this country, because the judge did not, as he ought to have brought with them the common law, as their done, give his opinion to the jury, on the point last mentioned. 343*] *Several other points were made, but were abandoned by the counsel, in the course of the argument. The cause was argued in February Term, 1804, by Messrs. Hamilton, Harison, and W. W. Ness, for the defendant, and by The Attorney-General (Spencer) and Caines for the people. Van Mr. inheritance and birthright; and one of the ear- liest acts of our Colonial Legislature was to assert their claim to the en joyment of the com- mon law. The decision in Zanger's case, in the year 1735, was of no great authority. The times were then violent; no great research or temper were displayed on that occasion, by the court, and the decision was reprobated by the public. The Act of Congress commonly called the Sedition Act, was expressly declar- atory, in that part of it which allowed the truth to be given in evidence, and was a high authority of the sense of the nation, as to the antecedent law. The doctrine which will be contended for on the other side, that the truth cannot be 1. The cause ought to have been put off at given in evidence, and is in no case to justify ARGUMENTS IN SUPPORT OF THE MOTION, ON THE PART OF THE DEFENDANT. the circuit, to have enabled the defendant to procure testimony, to prove the truth of the libel. The law allows the defendant, upon an indictment for a libel, to give in evidence the truth, as explanatory of his intent. This was the rule of the common law, and it has never since been repealed or altered by any competent authority. The ancient statutes De Scandal. Magnatum (Wm. I., 3; Edw. I., ch. 84; 2 Rich. II., ch. 5; 12 Rich. II., ch. 11, and 1 and 2 Ph. and M., ch. 3), made the falsity of the charge a material ingredient in the crime. These statutes have been consid- ered, by Lord Coke and others (2 Inst., 226, 227; 2 Mod., 161, 162), as declaratory of the common law; and prosecutions for libels, even down to the period of the establishment of the Court of Star Chamber, were founded upon these statutes. (Dyer, 155, and Jenk. JOHNSON'S CASES, 3. a libel, although it should be promulgated with the purest motives, is repugnant to the first principles of policy and justice, and con- trary to the genius *of a free represent- [*345 ative republic. Freedom of discussion and freedom of the press, under the guidance and sanction of truth, are essential to the liberties of our country, and to enable the people to select their rulers with discretion, and to judge correctly of their merits. The Chief Justice misdirected the jury, in saying they had no right to judge of the intent and of the law. In criminal cases, the de- fendant does not spread upon the record the merits of the defense, but consolidates the whole in the plea of not guilty. This plea embraces the whole matter of law and fact in- volved in the charge, and the jury have an undoubted right to give a general verdict, 719 345 SUPREME COURT, STATE OP NEW YORK. [APPENDIX.] 1804 which decides both the law and the fact. The verdict is final, and cannot be questioned by the court, and they were never responsible for it by attaint, which would not lie in a criminal case. (Budiell's case, Vaugh., 150.) The maxim that ad qu&tstionemjuri* non respond- ent juratores, applies to cases where the facts are contained in the record, and completely separated from the law. ' All the cases agree that the jury have the power to decide the law as well as the fact; and if the law gives them the power, it gives them the right also. Power and right are convertible terms, when the law authorizes the doing of an act which .shall be final, and for the doing of which the agent is not responsible. The intent constitutes crime. To deny, then, to the jury the right to judge of the intent, and yet to require them to find a gen- eral verdict* of guilty, is requiring them to commit perjury. The particular intent con- stitutes the- crime, in cases of libel, because the act is not, of itself, unlawful; and where the particular intent alone constitutes the guilt, the court cannot judge of that intent, and the complicated question of law and fact ; and the same doctrine was advanced *by two [*347 of the judges upon the trial of the seven bishops. During the existence of the licens- ing acts, the judge used to charge the jury as to the publication only, for the intent was not then material ; and, afterwards, when the licensing acts finally expired, under William III., this rule it was found convenient to extend to newspaper publications. The law, as laid down in Franklin's case, has since been carried to a rigorous and alarming extent by Lord Mansfield. But in Woodfall's case (5 Burr, 2661), the jury fairly met the new doc- trine, and found all they were directed or per- mitted to find, to wit, that the defendant was guilty of printing and publishing only, and yet the court dared not to act upon such a finding. They deny to the jury any cog- nizance of the intent, and yet they require of them a general unconditional verdict, which embraces that intent. In Took's case, as re- ported by the accurate Mr. Hargrave (11 St. Tr., 288), Lord Mansfield acted, however, in opposition to his former practice, and left to jury must find it. The time and circum- the jury the whole matter in issue, including stances are very material in cases of libel. To j the law, the fact, and the criminal intent ; say "the king had a cold " when the Pre- j and it appears from their speeches, in the tender had just landed in Scotland, was held punishable in England. So, to have propa- gated a report, in December 1776, that Gen- 346*1 eral *Washington was dead, might have deserved punishment; but to have said so in the year 1785 would have been harmless, &i least in a legal view. It is admitted to be the duty of the court to direct the jury as to the law, and it is advis- able for the jury, in most cases, to receive the law from the court ; and in all cases, they ought to pay respectful attention to the opin- ion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact ; and if they have a clear con- viction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent. After a gen- eral verdict of guilty, relief, as to the question of intent, cannot be granted to a defendant, by motion in arrest of judgment, or by writ of error, because the court can judge only from what appears upon the record itself, and the context is not spread upon the record. The prosecutor selects such parts only of the libel- ous publication as he deems material, and the Avhole context is allowed to be read to the jury at the trial (Salk., 417) ; but without any kind of meaning or use, if the jury are not to judge of the intent. The court ancl jury, at the cir- cuit, proceed, therefore, upon one publication, and the court above upon another. Before Franklin's case in the time of Lord Raymond (9 St. Tr. , 855), the courts never laid it down as a rule that the jury were not to judge of "the criminal intent. In 1 Leon., 287, an indictment that did not find the criminal intent was held bad. In BusheWs case, it was de- cided that, on the plea of not guilty, the jury, a general verdict, determined the whole Parliamentary Register, that Lord Camden and Lord Loughborough always held and laid down, as judges, a doctrine different from Lord Mansfield in relation to the rights of the jury. The English Declarator}- Act of 179H put this question at rest in England ; and that, decision is entitled to the greatest respect, as the question had been long discussed, and had exercised the learning and researches of th<; first lawyers in the nation. The Declaratory Act of Congress, which has been already mentioned, and the opinion of the Supreme Court of the United States, as delivered by Chief Justice Fay (3 Dallas, 4), are decisive authorities to show the general sense of this country in favor of the common law right of the jury to judge of the criminal intent, and of the law as well as of the fact. *3. The piece read to the jury from [*348 No. 7 of "The Wasp" was not libelous. The defendant refuted only a charge made by Holt, the printerof " The Bee," andstated what was the true federal charge, and invited a discus- sion of it. He never averred the charge to be true, nor published it with any other view than to correct a misstatement in the other paper. The record and the evidence pro- duced differed, and the latter ought to have been rejected. Whether the whole paper, taken together, would or would not have been libelous, was immaterial in this view, because the evidence and the charge varied sub stantially. The prosecutor cannot omit anv part of the publication which, if inserted*, would alter or qualify the sense of the libel. ARGUMENTS ON THE PART OF THE PEOPLE, AGAINST THE MOTION. 1. The first question arising in this case is, whether the Circuit Court properly overruled the motion to put off the trial. It was properly overruled, because the defendant did not show due diligence to obtain the testi- mony, and there was no probability that the JOHNSON'S CASES, 3. 1804 witness could ever be procured, and if pro- -cured, the testimony would not have been .admissible. The affidavit did not state a single act done by the defendant to procure the witness, and it was filled only with hopes and expecta- tions. There was sufficient time, previous to the trial, to have procured the witness. The fact of the residence of the witness out of the State, was a decisive objection to the motion, especially as the affidavit did not state any good ground for expecting the witness at the next circuit. The case in 1 Bl. Rep., 514, proves the affidavit bad on these grounds, and if the affidavit was insufficient, the motion was properly overruled. But if the witness had been present, his testimony could not have been received, 349*] because the law is well *settled, that, -on an indictment for a libel, the truth cannot be given in evidence ; and this rule of law rests upon the most solid grounds, notwith- standing the popular and captivating impres- sion of the contrary doctrine. A libel is punishable, not because it is false, but because of its evil tendency ; its tendency to a breach of the peace. (4 Bl. Com., 151 ; 3 Woodd., 138; 2 Hawk., 128, sec. 6, 129, sec. 7 ; 5 St. Tr., 532, 539.) This tendency equally exists, whether the libel be true or false. The malicious publication of truth will often -affect, to a most pernicious degree, the har- mony and happiness of society. A libel is THE PEOPLE v. CROSWELL. [APPENDIX.] 848 modern precedents have laid it aside. (7 Term Rep., 4.) The declaratory English statute of 1793 (if indeed it was declaratory) does not permit the truth to be given in evi- dence, although the twelve judges, in their opinion to the House of Lords, apprised the House that the settled law and practice was not to allow the truth to be given in evidence. The patriotism of the English nation has never considered this rule of law as hostile to their liberties ; and in England it is admitted, that personal rights and freedom of discussion are as well secured and protected as in any country. The law has wisely balanced be- tween extremes upon this subject, and has allowed all reasonable and useful freedom of inquiry, without 'granting the pernicious indulgence to traduce and blacken private reputation. A free discussion of public measures, without descending to delineate private vices, is sufficient for all beneficial purposes. To expose personal vices, defects, and foibles, to the public eye, corrupts the morals of the community, tends to drive use- ful men from office, and to render the press a vehicle to scatter firebrands, arrows and death. 2. The next ground upon which the motion is attempted to be supported is, that the Chief Justice ruled that the jury had no right to judge of the intent, for that the intent was a question of law. The jury have, undoubtedly, the power, in criminal cases, to decide the law -correctly said to be the more libelous for being as well as the fact, if they will take upon true, for it has an increased, tendency to a j themselves the exercise of it ; but we must distinguish, in this case, between power and right. It is the right of the jury to decide the fact, and only the fact ; and it is the exclusive *province of the court to decide the [*3o 1 law in all cases, criminal as well as civil. A jury is wholly incompetent, and necessarily must be, from the nature of their institution, to decide questions of law ; and if they were invested with this right, it would be attended breach of the peace. (Str., 498.) In a moral view, the malicious relating of either truth or falsehood, for the purpose of creating misery, is equally reprehensible. (Paley's Moral Philosophy, 237, 238.) The intent does not constitute the punishable nature of the libel, for the reasons suggested. This doctrine is firmly supported by the uniform language of . authorities ; and it has been received for ages a principle of the common law. (5 Co., I with mischievous and fatal effects. The law, 125; Moor, 627; Hob., 253.) It is no objec- 1 instead of being a fixed rule, would become tion to the rule, that the earliest decisions j uncertain and capricious, and there would not which we meet with, expressly recognizing it, were Star Chamber decisions. The doctrine in Twyne's case, and many of the most valu- able and received principles in our law, had their origin in that court. It was not so much the arbitrary decisions of that court, as its mode of proceeding, without trial by jury, that drew upon it the general odium of the nation. It is not correct, as stated by the opposite counsel, that in the ancient law the libel was founded upon the falsity of the charge. The Anglo-Saxon laws treated libelers with the most merciless severity, by cutting out the offender's tongue (2 Inst., 227), and Bracton (bk. 3, ch. 36) goes to prove remain any stability or uniformity of decision, or certainty of principle,' in the administration of justice. The reasoning of Lord Mansfield, in the case of Tlie Dean of St. Asapli (3 Term Rep., 491, 71), must work its way to the judg- ment and conviction of every person who reads it. It is eloquent, impressive and solid. Where an act becomes criminal by reason of a particular intent, in that case the jury must judge of the intent ; but when the act is un- lawful in itself, independent of the motive, the jury have nothing to do with the quo animo. This is the case with libels. They are equally injurious to the public peace, and all their deleterious effects follow, whether the that in his time falsity was not regarded as the i intent be criminal or not ; therefore, an inquiry essence of the libel, to be drawn from The inference attempted the statutes De Scandal. 35O*] Magnatum, *does not apply to libels at common law. Those statutes gave new and additional remedies ; and that was the reason into the intent becomes wholly immaterial. The facts are also all spread upon the record, and this forms a peculiar and strong case for the exclusive determination of the court upon the construction and legal inferences arising upon the publication. If the jury were to judge of the law in the they allowed the truth to be given in evidence. Fuller's case (5 St. Tr., 441) was a prosecu- tion founded upon those statutes. If the ; case of libels, why not of the effect of writ- . ancient precedents used the epithet " false," it j ings in civil cases, and of the law in all cases was merely a word of form, and the more \ where the plea is the general issue? Surely .JOHNSON'S CASES, 3. Y. REP., BOOK 1. 46 721 351 SUPREME COURT, STATE OF NEW YORK. [APPENDIX.] 1804 the counsel on the other side are not prepared to carry their doctrine to this extent. The decision by Lord Raymond, in Prank- Un'g case (9 St. Tr., 255), and the uniform stream of judicial decisions from that day to the present, have settled the law, as it was laid with the guilty. Single drops of water con- stantly falling may wear out adamant. The best character of our country, he to whom it was most indebted, and who is now removed beyond the reach of calumny, felt its corrosive effects. No, he did not contend for this ter- down by the Chief Justice at the circuit. The { rible liberty of the press, but he contended for opinions of the twelve judges, delivered to the ' the right of publishing truth, with good mo- House of Lords in 1793, are an authority the j tives, although the censure might light upon most commanding and weighty, to show that the government, magistrates, or individuals. 352*] the criminal intent *is not of the es- The check upon the press ought to be de- sence of the libel, and that the courts, and not : posited, not in a permanent body of magis- the jury, are the rightful judges of all ques- trates, as the court, but in an occasional and tions of law. And admitting the English j fluctuating body, the jury, who are to be statute of that year to have been intended as declaratory, it cannot outweigh, in point of authority, and as matter* of evidence, on a question touching the common law, the clear, decided, and uniform language of the courts. The Act of Congress of 1798 has not been considered as declaratory. It was stated, in a selected by lot. Judges might be tempted to enter into the views of government, and to ex- tend, by arbitrary constructions, the law of libels. In the theory of our government, the- executive and legislative departments are oper- ated upon by one influence, and act in one- course, by means of popular election. How, report of a committee of the House of Repre- ' then, are our judges to be independent? How sentatives, to be an amelioration of the com- mon law. It could not have had reference to any antecedent common law, for the common law of England, in respect to criminal mat- can they withstand the combined force and spirit of the other departments? The judicial is less independent here than in England, and, of course, we have more reason, and stronger ters, was never adopted by the Constitution of j necessity, to cling to the trial by jury, as our the United States. ; greatest safety. 3. With respect to the objection that the j *Men are not to be implicitly trusted [*354 publication was not libelous, it was clearly j in elevated stations. The experience of man- so, for the defendant adopted and reiterated j kind teaches us that persons have often arrived the federal charge, and so made it his own. ( at power by means of flattery and hypocrisy ^ He who republishes a libel is equally guilty [ but instead of continuing humble lovers of the with him who originates it. (5 Term Rep., j people, have changed into their most deadly 444.) The charge, in the present case, was ! persecutors. bold and audacious ; and it was proper to read j Lord Camden said, that he had not been the prospectus, to show the intent, and as con- i able to find a satisfactory definition of a libel, ducive to the proof of publication. In that j He would venture, however, but with much prospectus the defendant avows his libelous i diffidence, after the embarrassment which that intentions. j great man had discovered, to submit to the- The following is a brief summary of the j court the following definition: A libel is a argument of Hamilton, in reply : censorious or ridiculing writing, picture or He said, that the two great questions that sign, made with a mischievous and malicious arose in the cause were : 1. Can the truth be | intent towards government, magistrates or in- given in evidence? 2. Are the jury to judge j dividuals. According to Blackstone, it is a of the intent of the law? The first point i malicious defamation made public, with intent might be more embarrassing, but the second ! to provoke or expose to public hatred and was clear. j ridicule. The malice and intent enter into the The liberty of the press consisted in publish- 1 essence of the crime, and must be proved, and ing with impunity, truth with good motives, ; are, accordingly, to be left to the jury, as par- and for justifiable ends, whether it related to ! eel of the fact. The definition of Lord Coke men or to measures. To discuss measures ' does not oppose this result. He speaks of a without reference to men was impracticable. | libel as having a tendency to break the peace. Why examine measures but to prove them bad, j This, also, is a fact to be proved to the jury, and to point out their pernicious authors, so j for the tendency depends upon time, manner, 353*] that the people *might correct the evil i circumstance, and must, of necessity, be a by removing the men? There was no other j question of fact. way to preserve liberty and bring down a ty- j Texts taken from the Holy Scriptures, and rannical faction. If this right was not permitted scattered among the people, may, in certain to exist in vigor and in exercise, good men times, and under certain circumstances, be- would become silent ; corruption and tyranny > come libelous, nay, treasonable. These texts would go on, step by step, in usurpation, until, j are, then, innocent, libelous or treasonable, at last, nothing that was worth speaking, or j according to the time and intent ; and surely writing, or acting for, would be left in our i the time, manner and intent, are matters of It is the intent that consti- This is a fundamental prin- fact for a jury. But he did not mean to be understood as ! tutes the crime. country. being the advocate of a press wholly without I ciple of jurisprudence. If we run through the control. He reprobated the novel, the vision- several classes of offenses, we shall perceive ary, the pestilential doctrine of an unchecked that in every instance the intent constitutes press, and ill-fated would be our country if and varies the crime. An instance was given this doctrine was to prevail. It would en- in a Star Chamber case, of a father sending a courage vice, compel the virtuous to retire, j reproachful letter to his son, and the intent destroy confidence, and confound the innocent i was made the test whether it was to be ad- 722 JOHNSON'S CASES, 3. 1804 THE PEOPLE v. CROSWELL. [APPENDIX.] 355 355*] judged a libel. Homicide *is not, of itself, murder. Killing in battle, or in self-de- fense, is lawful. Murder depends upon the malicious intent. Nothing is criminal, per se, which admits of a lawful excuse. Whether crime or not, will always depend upon intent, tendency, quality, manner, &c., and these must be matters of fact for the jury. The law cannot adjudge a paper to be a libel, until a jury have found the circumstances connected with the publication. But it is not only the province of the jury,in all criminal cases, to judge of the intent with which the act was done, as being parce.l of the fact ; they are also authorized to judge of the law as connected with the fact. In civil cases, the court are the exclusive judges of the law, and this arose from the nature of pleadings in civil suits ; for, anciently, matters of law aris- ing in the defense, were required to be spread upon the record, by a special plea, and the jury were liable to an attaint for finding a verdict contrarv to law. But in criminal cases, the law and fact are necessarily blended by the feneral issue, and a general verdict was always nal and conclusive, both upon the law and the fact. Nor were the jury ever exposed to an attaint for a verdict in a criminal case ; and this is decisive to prove that they had a con- current jurisdiction with the court on questions of law ; for where the law allows an act to be valid and definitive, it presupposes a legal and rightful authority to do it. This is a sure and infallible test of a legal power. In England trial by jury has always been cherished as the great security of the subject against the oppression of government ; but it never could have been a solid refuge and se- curity, unless the jury had the right to judge of the intent and the law. The jury ought, undoubtedly, to pay every re- spectful regard to the opinion of the court; but suppose a trial in a capital case, and the jury are satisfied from the arguments of counsel, the law authorities that are read, and their own judgment, upon the application of the 356*] law to *the facts (for the criminal law consists in general of plain principles), that the law arising in the case is different from that which the court advances, are they not bound by their oaths, by their duty to their Creator and themselves, to pronounce according to their own convictions? To oblige them, in such a case, to follow implicitly the direction of the court, is to make them commit perjury and homicide, under the forms of law. Their error is fatal and cannot be corrected. The victim is sacrificed ; he is executed ; he per- ishes without redress Was he a juror, in such a case, he would endure the rack rather than surrender his own convictions on the altar of power, rather than obey the judicial man- date. Lord Mansfield showed, by his inconsisten- cies and embarrassment on this subject, that he was supporting a violent paradox. But he did not speak of the errors of that great man but with the highest veneration for his mem- ory. He would tread lightly over his ashes, and drop a tear of reverence as he passed by. The case of The Seven Bishops, and Fuller's and Tuchin's cases, are a series of precedents in favor of the right of the jury. The oppo- JOHNSON'S CASES, 3. site precedents begin with Lord Raymond, but they have not been uniform nor undisputed. It has been constantly a floating and litigious question in Westminster Hall. A series of precedents only can form law. There can be no embarrassment in the court ; they are at liberty to examine the question upon princi- ples. The English Declaratory Act recites that doubts had existed, and being declaratory, it is evidence of the sense of the nation. The Marquis of Lansdowne observed, in the House of Lords, that the same declaratory bill had been brought in twenty years before, and was then deemed unnecessary. The question how far the truth is to be given in evidence, depends much on the question of intent ; for if the intent be a subject of in- quiry for the jury, the giving the truth in evidence is requisite, as a means to determine *the intent. Truth is a material ingre- [*357 dient in the evidence of intent. In the whole system of law there is no other case in which the truth cannot be shown ; and this is sufficient to prove the proposition, which denies it in the present case to be a paradox. The Roman law 1 permitted the truth to justify a libel. The ancient English statutes prove also, that in the root and origin of our law, falsity was an ingredient in the crime, and those statutes were declaratory of the common law. The ancient records and prece- dents prove the same thing, and they are the most authoritative evidence of the ancient law. In the celebrated case of The Seven Bishops, the court permitted the defendants to prove the truth of the facts stated in the petition. That case is also very important, in various views. It establishes the necessity of inquiring into the circumstances and intent of the act. It was an instance of a firm and successful effort to recall the principles of the common law, and was an important link in the chain of events that led on to the glorious aera of their revolu- tion. In Fuller's case, Lord Holt allowed the defendant to go into proof of the truth of the charge. But while, he said, he advocated the admission of the truth, he subscribed to the doctrine of Want's case, in Moore, that the truth ought only to be given in evidence, to determine quo animo the act was done. It ought not to be a justification in every case, for it may be published maliciously. It may be abused, to the gratification of the worst of passions, as in the promulgation of a man's personal defects or deformity. The Court of Star Chamber was the pol- luted source from whence the prosecutor's doc- trine was derived. That *is not the [*358 court from which we are to expect principles and precedents friendly to freedom. It was a most arbitrary, tyrannical and hated tribunal, under the control of a permanant body of magistrates, without the wholesome restraints of a jury. The whigs in England, after the Rev- olution, in order to prop up their power, adopted, as in Franklin's case, the arbitrary maxims of that court which had been repro- 1. The counsel cited Dig-., lib., 47, tit. 10, ch. 18 ; the following- opinion of Paulus: "Bum qui nocentem infamavit, non esse ponum equum ob earn rem con~ demnari, peccata enim nocentium nota esse ft oportere et erpedire," and Perezius on the Code, Vol. II., p. 208 ; Vinnius on the Inst.. 762, lib. 4., tit. 4. 723 3oS SUPREME COURT, STATE OF NEW YORK. [APPENDIX.] bated at the Revolution ; and this ought to j tice by the trial by jury. 1804 We have gone fur- ther in this country into the popular principle, and he cordially united his prayers with the opposite counsel that the experiment with us might be successful. The question on the present libel ought to serve as a monitory lesson to rulers at the pres- ent day, for such is the nature, progress and effect of the human passions. The right of giving the truth in evidence, in cases of libels, la all-important to the liberties of the people. Truth is an ingredient in the I be asrain tried. It concerns the reputation of eternal order of things, in judging of the qual- < Mr. Jefferson. It concerned *deeply [*36O ity of acts. He hoped to see the axiom, that i the honor of our country. It concerned the truth was admissible, recognized by our legisla- j fame of that bright and excellent character tive and judicial bodies. He always had a pro- 1 General Washington, in which he had left a found reverence for this doctrine" and he felt i national legacy of inestimable value, a proud elevation of sentiment in reflecting | He concluded by recapitulating the sub- that the act of Congress, which had been the ! stance of the doctrine for which he contended, object of so much unmerited abuse, and had in the following words: been most grossly misrepresented by designing "1. The liberty of the press consists in the men, established this great vital principle. It j right to publish, with impunity, truth, with was an honorable, a worthy and glorious effort j good motives, for justifiable ends, though in favor of public liberty. He reflected also ; reflecting on government, magistracy, or indi- with much pleasure on the fact that so illus- j viduals. trious a patriot as Mr. Jay had laid down, "2. That the allowance of this right is essen- correctly and broadly, the power of the jury, tial to the preservation of a free government ; These acts were monuments were consoling : the disallowance of it fatal. vestiges of the wisdom and virtue of the administration them. and character that produced He maintained that the common law applied to the United States. That the common law was principally the application of natural law "3. That its abuse is to be guarded against, by subjecting the exercise of it to the animad- version and control of the tribunals of justice ; but that this control cannot safely be intrust- ed to a permanent body of magistracy, and requires the effectual co-operation of court and jury. "4. That to confine the jury to the mere to the state and condition of society. That the Constitution of the United States used terms and ideas which had a reference to the j question of publication, and the application of common law, and were inexplicable without : terms, without the right of inquiry into the its aid. That the definition of treason, of the intent or tendency, reserving to the court the writ of Tiabeas corpus, of crimes and misde- exclusive right of pronouncing upon the con- meanors, &c., were all to be expounded i struction, tendency, and intent of the alleged 359*] *by the rules of the common law. That j libel, is calculated to render nugatory the the Constitution would be frittered away or j function of the jury ; enabling the court to borne down by factions (the evil genii, the pests make a libel of any writing whatsover, the of republics) if the common law was not ap- most innocent or commendable, plicable. That without this guide, an}' polit- "5. That it is the general rule of criminal ical tenet or indiscretion might be made a crime law, that the intent constitutes the crime ; and or pretext to impeach, convict, and remove ', that it is equally a general rule, that the intent, from office, the judges of the federal courts, mind, or quo animo, is an inference of fact to That if we departed from common law princi- \ be drawn by the jury. pies, we should degenerate into anarchy, and "6. That if there are exceptions to this rule, become the sport of the fury of conflicting they are confined to cases in which not only passions. The transition from anarchy was to the principal fact, but its circumstances can despotism, to an armed master. j be and are specifically defined by statute or The real danger to our liberties was not , judicial precedent. from a few provisional troops. The road to "7. That, in respect to libel, there is no tyranny will be opened by making dependent ! such specific and precise definition of facts judges, by packing juries, by stifling the press, j and circumstances to be found ; that, conse- by silencing leaders and patriots. His appre- ; quently, it is difficult, if not impossible, to hensions were not from single acts of open , *pronounce that any writing is, per [*361 se, and exclusive of all circumstances, libel- ous ; that its libelous character must depend on intent and tendency ; the one and the other open violence. Murder rouses to vengeance ; it awakens sympathy, and spreads alarm. But the most dangprous, the most sure, the most fatal of tyrannies, was, by selecting and sacrific- being matter of fact. ing single individuals, under the mask and j "8. That the definitions or descriptions of forms of law, by dependent and partial tribu- j libels to be met with in the books, founded nals. Against such measures we ought to I them upon some malicious or mischievous keep a vigilant eye, and take a manly stand. ' intent or tendency, to expose individuals to Whenever they arise, we ought to resist, and resist, till we have hurled the demagogues and tyrants from their imagined thrones. He con- curred most readily with the learned counsel opposed to him, in the opinion that the En- glish were a free, a gloriously free people, what country is free where the people have a hatred or contempt, or to occasion a disturb- ance or a breach of the peace. "9. That, in determining the character of a libel, the truth or falsehood is, in the nature of things, a material ingredient, though the truth may not always be decisive ; but being abused may still admit of a malicious and representation in the government, so that no i mischievous intent, which may constitute a law can pass without their consent ; and where ! libel. they are secured in the administration of jus- " 10. That, in the Roman law, one source 724 JOHNSON'S CASES, 3. 1804 THF PEOPLE v. CROSWELL. [APPENDIX.] 361 of the doctrine of a libel, the truth, in cases interesting to the public, was given in evi- dence ; that the ancient statutes, probably declaratory of the common law, make the falsehood an ingredient of the crime ; that the ancient precedents in the courts of justice cor- respond, and that the precedents to this day charge a malicious intent. "11. That the doctrine of excluding the truth, as immaterial, originated in a tyrannical and polluted source, in the Court of Star Chamber ; and though it prevailed a consider- able length of time, yet there are leading prec- edents down to the Revolution, and ever since, in which a contrary practice prevailed. "12. That the doctrine being against reason and natural justice, and contrary to the origin- al principles of the common law, enforced by statutory provisions, the precedents which support it deserve to be considered in no bet- ter light than as a malus usus, which ought to be abolished. "13. That, in the general distribution of power, in any system of jurisprudence, the cognizance of law belongs to the court, of fact J562*] to the jury ; that as often as *they are not blended, the power of the court is abso- lute and exclusive. That, in civil cases, it is always so, and may rightfully be so exerted. That, in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the pow- er of deciding both law and fact. "14. That this distinction results: 1. From the ancient forms of pleading, in civil cases ; none but special pleas being allowed in mat- ters of law ; in criminal, none but the general issue. 2. From the liability of the jury to attaint in civil cases, and the general power of the court, as its substitute, in granting new trials, and from the exemption of the jury from attaint, in criminal cases, and the defect of power to control their verdicts by new trials ; the test of every legal power being its capacity to produce a definitive effect, liable neither to punishment nor control. "15. That, in criminal cases, nevertheless, the court are the constitutional advisers of the jury, in matters of law, who may com- promit their consciences by lightly or rashly disregarding that advice ; but may still more compromit their consciences by following it, if, exercising their judgments with discretion and honesty, they have a clear conviction that the charge of the court is wrong." Cur. ad. milt. On the last day of this term (MayTerm, 1804), the Chief Justice observed that the court, being equally divided in opinion (Mr. Justice Spencer having, while Attorney-General, 1 con- ducted the prosecution against the defendant), the motion for a new trial was lost ; that they were prepared to state their reasons at length*; but that it was not ^thought requisite ; 4 [*363 and he took it for granted that the public pros- ecutor was entitled to move for judgment on the verdict. (CartKdge v. Eyles, Barnes, 442.) No motion, however, was made for judg- ment. The following are the opinions of KENT, J., and LEWIS, Ch. J., as prepared, and intended . to have been delivered by them: KENT, J. The defendant was convicted, at the last Circuit Court in Columbia County, of printing and publishing a scandalous, mali- cious and seditious libel upon Thomas Jeffer- son, the President of the United States. And a motion was made at the last term for a new trial, on the ground of a misdirection of the judge. The motion was principally founded upon the two following objections: 1. That the Chief Justice charged the jury that it was not their province to inquire or decide on the intent of the defendant, or whether the publication was libelous or not. That those were questions of law, to be de- cided exclusively by the court, upon the return of the postea ; and that the only points for their consideration were, *first, whether the [*364 defendant published the paper stated in the in- dictment; and second, whether the innuendoes were true, and that if they were satisfied of these two points, it was their duty to find the defendant guilty. 2. That he denied to the defendant the op- portunity of producing testimony to prove the truth of the libel, on the ground that the de- fendant could not be permitted to give in evi- dence to the jury, the truth of the charges con- tained in the libel. I shall consider these two very important questions in the order in which they have been stated. 1. The criminality of the charge in the in- dictment consisted in a malicious and seditious intention. (Hawk., tit. Libel, sec. 1 ; 2 Wile., 403 ; 1 Esp. Cas., 228.) There can be no crime without an evil mind. Actm non facit reum, nisi mens sit rea. The simple act of publica- tion, which was all that was left to the jury, in the present case, was not, in itself, criminal. It is the application to times, persons and cir- cumstances ; it is the particular intent and tendency that constitute the libel. Opinions and acts may be innocent under one set of circumstances, and criminal under another. This application to circumstances, and this particular intent, are as much matters of fact 1. He was appointed one of the judges of this court, February 3, 1804, in the place of Mr. Justice Kadcliff , who had resigned his seat. 2. In the case of Chandler v. The Hundred of Sunning- (Barnes, 458), on a case made on a verdict, subject to the opinion of the court, though the judges were equally divided, each of them deliver- ed their opinions, but no judgment was given on the verdict. In Bolton and Watt v. Bull (2 H. Bl., 463), on a case reserved at the sitting's, the judges were equally divided, and gave their reasons sepa- rately, but no judgment was rendered. See, also, The King v. The Inhabitants of Criswell, 3 Term Rep., 707. In Nelson v. Tucker (3 Bos. & Pull., 257), JOHNSON'S CASES, 2. the judges were equally divided in opinion, and gave their reasons seriatim, but on the intimation of the counsel for the plaintiff, that they wished judgment to be pronounced against th>ir client, in order that they might bring a writ of error, Heath, J., withdrew his opinion, and the court gave judg- ment for the defendant. In Smith v. Taylor (4 Bos. & Pull.), 196, or Vol. I., N. S , there was a motion for a new trial, and the judges, who gave their reasons at large, being equally divided, no rule was made, and the plaintiff retained his verdict. See, also, Jackson, ex dem. Rensselaer, v. Whitlock, 1 Johns. Cases, 213; Foot v. Tracy. 1 Johns. Rep., 46, and Bird et al. v. Pierpont, 1 Jc.uns. Rep., 117. 725 364 SUPREME COURT, STATE OF NEW YORK. [APPENDIX.] 1804 as the printing and publishing. (Winne's Eunomus, dial. 3, sec. 53.) Where an act, innocent in itself, becomes criminal, when done with a particular intent, that intent is the material fact to constitute the crime. (Lord Mansfield, 3 Term Rep., 429, in the note.) And I think there cannot be a doubt, that the mere publication of a paper is not, per *e, criminal ; for otherwise, the copying of the indictment by the clerk, or writing a friendly and admonitory letter to a father, on the vices of his son, would be criminal. The intention of the publisher, and every circumstance at- tending the act, must therefore be cognizable by the jury as questions of fact. And if they are satisfied that the publication is innocent ; that it has no mischievous or evil tendency ; 365*] that the *mind of the writer was not'in fault ; that the publication was inadvertent, or from any other cause, was no libel, how can they conscientiously pronounce the defendant guilty from the mere fact of publication ? A verdict of guilty embraces the whole charge upon the record, and are the jury not permitted to take into consideration the only thing that constitutes the crime, which is the malicious intent ? According to the doctrine laid down at the trial, all that results from a verdict of guilty is, that the defendant has published a certain paper, and that it applies to certain persons, according to the innuendoes ; but whether the paper be lawful or unlawful ; whether it be criminal, or innocent, or merit- orious ; whether the intent was wicked or virtuous, are matters of law which do not be- long to the jury, but are reserved for the de- termination of the court. The prosecutor se- lects and sets forth such parts only of the paper as he deems exceptionable, but the defendant is allowed (2 Salk., 417 ; 3 Term Rep., 429) to read in evidence the context, in order to deter- mine the intent, and yet how can this evidence be material or pertinent, if the jury are not to judge of that intent ? Or how can it be mate- rial to the court above, on the motion in arrest of judgment, when that motion is founded entirely on the charge as it appears upon the face of the record ? To bear out the doctrine the courts have involved themselves in incon- sistency and paradox ; and I am induced to believe that it is a departure from the ancient, simple, and true theory of trial by jury in criminal cases. To deny to the jury the right of judging of the intent and tendency of the art is to take away the substance, and with it the value and security of this mode of trial. It is to transfer the exclusive cognizance of crimes from the jury to the court, and to give the judges the absolute control of the press. There is nothing peculiar in the law of libels to withdraw it from the jurisdiction of the jury. The twelve judges, in their opinion to 36G*] the House of Lords (April, *1792), ad- mitted that the general criminal law of En- gland was the law of libel. And by the general criminal law of England the office of the jury is judicial. "They only are the judges," as Lord Somers observes (Essay on the Power and Duty of Grand Juries, p. 7), "from whose sentence the indicted are to expect life or death. Upon their integrity and understanding, the lives of all that are brought into judgment do ultimately depend. 726 From their verdict there lies no appeal. They resolve both law and fact, and this has always been their custom and practice." If the criminal intent be, in this case, an in- ference of law, the right of the jury is still the same. In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special ver- dict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue ; because, in every such case, they are charged with the deliverance of the defendant from the crime of which he is accused* The indictment not only sets forth the particular fact committed, but it specifies the nature of the crime. Treasons are laid to be done traitorously, felonies, feloniously, and public libels to be published seditiously. The jury are called to try, in the case of a traitor, not only whether he commit- ted the act charged; but whether he did it traitorously : and in the case of a felon, not only whether he killed such a one, or took such a person's property, but whether he killed with malice prepense, or took the property feloniously. So in the case of a public libeler, the jury are to try, not only whether he published such a writing, but whether he published it seditious- ly. In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and doing so, they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment. (Dagge on criminal Law, bk. 1., ch. 11, sec. 2.) The law and fact are so involved, that the *jury are under an indispensable neces-[*36 7 sity to decide both, unless they separate them by a special verdict. This right in the jury to determine the law as well as the fact has received the sanction of some of the highest authorities in the law. -The inquest, says Littleton (sec. 368), may give a verdict as general as the charge, if they will take upon themselves the knowledge of the law. The same principle is admitted by Coke, and other ancient judges (Co. Litt., 228 ; 4 Co., 53 b, Wrey, Ch. J. ; Hob., 227); although they allege it to be dangerous for the jury to do so, because if they mistake the law, they run the hazard of an attaint. As the jury, according to Sir Mathew Hale, assist the judge in determining the matter of fact, so the judge assists the jury in determining points of law. And it is the conscience of the jury, he observes, that must pronounce the prisoner guilty or not guilty. It is they, and not the judge, that take upon them his guilt or inno- cence. (Hist. Com. Law, ch. 12 ; H. H. P. C., Vol. II., 313.) Blackstone, in his Commentaries (Vol IV., p. 354), when speaking of the verdict of the jury in criminal cases, says, that the jury may find a special verdict where they doubt the matter of law, and, therefore, choose to leave it to the determination of the court ; though they have an unquestionable right to determine upon all the circumstances, and find a general verdict, if they will hazard a breach of their oaths. The Statute of Westm. 2 (13 Edw. I.), which declared that the justices of assize should not compel the jurors to say precisely whether it be a disseisin or not, so as they state the truth of the fact and pray the aid of the justices, was in affirmance of the JOHNSON'S CASES. 3. 1804 THE PEOPLE v. CROSWELI,. [APPENDIX.] 367 to their conception of all direction by the common law (9 Co., 13 a; Plowd., 92), and was intended for the relief of the jurors, and that they should not be compelled to find, at their peril, things doubtful to them in law. This indulgence to the jury, and which ex- tended to all cases civil and criminal, is the most decisive proof that on a general verdict the jury were obliged to judge of the whole matter in issue, and that the direction of the 3G8*] *court upon the point of law was not conclusive upon their judgments, or binding on their consciences. The twelve judges, in their opinion, to which I ^have alluded, " dis- claim the folly of endeavoring to prove that a jury who can find a general verdict, cannot take upon themselves to deal with matter of law arising on a general issue, and to hazard a verdict made up of the fact and of the matter of law, according the law, against judge." To meet and resist directly this stream of authority is impossible. But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it, without compromitting their consciences, and that they are bound implicitly, in all cases, to receive the law from the court. The law must, how- ever, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power is its capacity to produce a definitive effect liable neither to cen- sure nor review. And the verdict of not guilty, in a criminal case, is, in every respect, absolutely final. The jury are not' liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned and upheld in constant activ- ity from the earliest ages. It was made*a question by Bracton (fdl. 119, a b), who was to sit in judgment upon and decide points of law on appeals in capital cases. It could not be the king, he says, for then he would be both prosecutor and judge ; nor his justices, for they represented him. He thinks, there- fore, the curia and pares were to be judges in all cases of life and limb, or disherison of heir, where the crown was the prosecutor.' And, indeed, it is probable that in the earlier stages of the English juridical history, the jury, instead of deciding causes under the direction of the judge, decided all causes with- out the assistance of the judge, on the Statutes, 18, 26, 311.) (Barrington *The maxim that ad qucestiomm legi* respondent judices, ad qimstionem facli respond- ent juratores, is the ground of the doctrine, that the jury are not in any case to judge of the law ; and where the law and fact can be separated, as in the case of demurrer and special verdict, the maxim is literally true. - tur." (Dig., lib. 47, tit. 10; 1. 5, sec. 9.) In the reign of the emperors Valentinian and Valens, the punishment of libelers was made capi- tal. Capitafi pocna plectitur. (Cod. 9, 36; Defamrmis W>ettis.) By this law any person who accidentally found a libel, and did not burn or destroy it, but made it known to others, was considered as the author, and subjected to the same punishment. Commentators, however, suppose that this law applied to cases only of very atrocious libels, as where the injured person was charged with some capital offense, as murder, robbery, adultery, &c., and not where the libel imputed inferior crimes or offenses. The Athenians regarded calumniators and defum- ers in a less odious view. The delinquent was mere- ly fined from three drachms to five hundred, ac- , cording to the nature of the charge. (Potter. Ant., I 1. 179.) JOHNSON'S CASES, 3. St. Tr.) is the first instance in which the new doctrine of libel was brought into the Court of King's Bench and submitted to the test of a jury ; and here we consult once more the genuine oracles of the common law, and although their responses may not be 1804 THE PEOPLE v. CROSWELL. 386 Y^- [APPENDIX.] trines 'of the Star Chamber, to control seditious I Raymond overruled the evidence, and ob- and libelous publications. The case of the j served, that it was not material whether the facts charged in the libel were true or false. "Then I submit," replies Mr. Bootle, "whether this will not tend to the utter suppression of the liberty of the press, which has been so beneficial to the nation. As the Star Chamber is now abolished, I don't know how far that altogether consistent or unequivocal, we listen doctrine may be adhered to. I should be glad to them with delight and instruction. On this J to have one instance or authority of this, where trial, the Attorney-General contended that it ! a publisher of news is not allowed to say this was not to be made a question, whether the libel was true or false, and he grounded him- self entirely upon the decisions in the Star Chamber, as he cited no other. But the counsel for the defendants, under the permission of the court, went at large into argument and proof, to show the dispensing power of the crown illegal, and that the allegation in the petition was true. And when the judges came 387*J to ^charge the jury, which they did separately, two of them were of opinion that the petition was a libel, and that whether true or false, was immaterial. The third judge placed the question altogether upon the quo . Beach, Who are aliens, effect of alienage. Kelly v. Harrison, 427 Right to take and hold real property by purchase and descent. Jackson, ex dem., v. Lunn, 636 ATTORNEY. Disbarment, manner of trial, right to be heard; Evidence, commissions, felony; Effect of Pardon. People v. Smith, 206 Attorney's lien for costs, settlement by parties. See PARTIES. ARREST. Member of Congress privileged from arrest. Lewis v. Elmendorf, 494 BAILMENT. Agreement to undertake a trust in the dark without consideration ; COL. AND CAI., AND JOHNS. 1, 2, 3. Entry upon trust. Rutgers v. Lucet, 449 BANKS. See BILLS, NOTES AND CHECKS. BILLS, NOTES AND CHECKS. Acceptance of promissory note, when dis- charge of original cause of action. Herring v. Sanger. 621 Delivery of note not payment of prece- dent debt. See PAYMENT. Lex loci, &c., Lodge v. Phelps, 275 Notice of dishonor, form and contents. Reedy v. Seixas, 536 Notice of non-acceptance and non-pay- ment; Due diligence; Duties of agents ; Failure to give notice; What aside from acts of parties will excuse. Tunno & Cox v. Lague, 417 Notice of nonpayment of promissory note, Contents of, error in. James v. Badger, 270 Presentment of bank check time. Conroy v. Warren, 689 Rights of holders of negotiable paper trans- ferred after maturity. Johnson v. Bloodgood, 239 See USURY. CHANCERY. Jurisdiction of. Armstrong v. Gttchrist, 565 COMMON CARRIER. Delivery inability to find consignee. ' Mayell v. Potter. 547 CONCEALMENT. See INSURANCE, MARINE. CONFESSIONS. Confessions of defendant as evidence in action of divorce on ground of adultery. Doe v. Roe, 228 CONSPIRACY. Trial for failure of jury to agree, their discharge by court, second trial. People v. Okott, 523 CONTRABAND OF WAR. See INSURANCE, MARINE. 743 INDEX TO NOTES. CONTRACTS. Of indemnity when original undertaking. Attairev. Ouland, 435 Made by infant, see INFANT. Under seal by parties, see PARTNERSHIP. Ext ention of time of performance of written contract by parol. Note to Keating v. Price, 226 Variation of place of Jperf ormance of written contract by parol. Id. 226 CORPORATIONS. See STOCK. What is not a corporation. Ernst v. Bartle, 338 COVENANTS. Taken distributively. Ernst v. Bartle, 338 In deed, when construed together. Cole v. Hawes, 488 CREDITOR. Legacy to. Rickets v. Livingston, 451 DAMAGES. Liquidated, stipulated or stated agreement as to. Dennis v. Cummins, 702 DEBTOR. Legacy to; Appointment of debtor as executor. Rickets v. Livingston, 451 DEED. Of lands held adversely. See ADVERSE POSSESSION. Covenants in, when construed together. Cole v. Hawes, 488 Recitals, estoppel. Denn, ex dem. Golden, v. Cornell, 659 Delivery and acceptance. Jackson, ex dem. M'Crea, v. Dunlop, 263 DELAY. When constitutes deviation. See INSURANCE, MARINE. DEVIATION. See INSURANCE, MARINE. DOMICILE. What constitutes in foreign country. Filth v. Stoughton, 558 EQUITY. Necessary parties to, action in. Hickock v. Scribner, 708 ESCAPE. What constitutes and what does not. Voluntary and negligent, distinction be- tween ; When sheriff can and cannot retake. Lansing v. fleet, 418 744 ESTOPPEL. ., Recitals in deeds, wills, statutes and public documents. Denn, ex dem. Golden, v. Cornell, 659' EVIDENCE. Action for divorce on ground of adultery; Confessions of defendant. Doe v. Roe, 228 Handwriting of subscribing witness when evidence of, admissible. Matt v. Doughty, 307 Handwriting, competency of witness to tes- tify to ; Opinion what witness may give ; Comparisons, statute law of New York ; Persons never having seen party write ; Witness may refresh his memory by refer- ence to papers admitted genuine ; Qualified Experts. Tilford v. Knott, 49O On construction of marine insurance policy.. See INSURANCE, MARINE. EXECUTOR. Appointment of debtor as such. Rickets v. Livingston, 451 558 EXPATRIATION. See note to Fish v. Stoughton, EXPERTS. On handwriting, see EVIDENCE. FOREIGN JUDGMENTS. What effect to be given to. Vandenheuvel v. United Ins. Co., 675* GIFT. Parol gift of land. Jackson v. Rogers, 233- GRANT. See ADVERSE POSSESSION. HANDWRITING. Competeny of witness on question of. See EVIDENCE. Of subscribing witness, proof of, by. See EVIDENCE. INDEMNITY. Contract of, when original undertaking. Allaire v. Ouland, 435 INDORSER AND INDORSEE. See BILLS, NOTES AND CHECKS. INFANTS. Acts of, void or voidable ; Allegation by infant that he is of full age ; Contracts made upon such representations. Responsibility torts. Conroyv. Birdsall, 268 INSURANCE, MARINE. Abandonment, deduction of one third, new for old. Dupuy v. United Ins. Co. COL. AND CAI., AND JOHNS. 1, 2, 3. INDEX TO NOTES. INSURANCE, MARINE. Abandonment, time for. Roget v. Thurston, 504 Earl v. Shaw, 336 Abandonment, right of determined by state of facts at time ot offer. Mumford v. Church, 278 Adjustment, effect of, defences, conclusive- ness of; Money paid on under mistake. Fauguier v. Hattett, 499 Assignment of policies. Earl v. Shaw, 336 Bottomry interest, responsibility of insur- ers of. Robertson v. United Ins. Co., 505 Concealment. Seton v. Low, 219 Construction of policy, different clauses. BakeweUv. United Ins. Co., 503 Construction of policy; General rules; Ambiguous or equivocal; External evidence not admissible; Intention of parties; Exceptions. N. T. Ins. Co. v. Thomas, 597 Contraband articles. Seton t. Low, 219 Delay, when deviation. Earl v. Shaw, 386 Deviation. What constitutes. What will excuse. On time policies. Intention alone will not constitute. Visiting ports in wrong order. What exercise of judgment and what knowledge required of master. Delay. Effect of usage. Temporary deviation. Gilfert v. Halktt, 521 Deviation, definition of, effect of, general rule. What is and what is not deviation, unnec- essary delay. Palrick v. Ludlow, 600 Exceptions in policy. Roget v. Thurston, 504 Fire policies. Silvav. Low, 291 Foreign adjustment. Denn, ex dem. Golden, v. Cornell, 660 Goods laden on deck. Id. 660 Insurable interest. Robertson v. United Ins. Co., 505 Profits and freight. Abbot v. Sebor, 610 Representation, what is, distinguished from warranty, materiality, test of. Mackay v. Rhinelander, 370 Return of premium. Delamgne v. United Ins. Co., 335 Holmes v. United Ins. Co., 533 Juhelv. Church, 534 Risk divisible. Juhel v. Church, 634 COL. AND CAI., AND JOHN. 1, 2, 8. Seaworthiness, implied warranty of; What it includes, burden of proof. Sttva v. Low, 291 Warren v. United Ins. Co., 490 Usage as modifiying Ins. Contract. Mackay v. Rhinelander, 37O Warranty of national character Murray v. United Ins. Co. 476 JUDGMENT. See FOREIGN JUDGMENT. JURY. Discharge of, after failure to agree. People v. Okott 523 LAND. Parol gift of land. Jackson v. Roger, 253 Sale of land by sheriff. Jackson, ex dem. Jones, v. Striker, 327 LEGACY. To debtor, to creditor. Rickets v. Livingston. 451 LEX LOCI. Negotiable paper. Lodger v. Phelps, 275 Usury, loan secured by mortgage. Van Schaick v. Edward*. 542 LIBEL. See SLANDER and LIBEL. LIEN. Of attorney for costs. See PARTIES. MEMBER OF CONGRESS. Privileged from arrest. Lewis v. Elmendorf, 494 NATURALIZATION. See ALIENS. NEGOTIABLE INSTRUMENTS. See BILLS, NOTES and CHECKS. NEGOTIABLE PAPER. As payment of precedent debt. See PAY MENT. NEW TRIAL. Verdict against law and evidence, conflict of evidence. Wilkie v. Roosevelt, 67O See TRIAL. NOTICE. See BILLS, NOTES and CHECKS. PARTIES. Settlement between, lien of attorney for costs. Finder v. Mori-is, 204 In equity, who necessary. Hickock v. Scribner, 708 PARTNERSHIP. What constitutes. Holmes v. United Ins. Co., 633 INDEX TO NOTES. Agreement between partners, third par- ties, when bound by. Ensign v. Wands, 286 Power of one partner to bind copartner by seal ; English and American doctrines. Clement v. Brush, 661 PAYMENT. Acceptance of promissory note when dis- charge of original cause of action. Herring v. Sanger, 621 Delivery of negotiable paper not payment of precedent debt. Burden of proof. Rules in different States. Due diligence in collecting. Murray v. Qouverneur, 369 PENALTY. See note to Dennis v. Cummins, 702 PLACE OF TRIAL. Change of, see venue. PRINCIPAL AND AGENT. Ratification of acts of agent. Armstrong v> GUchrist, 565 PRISONERS. See ESCAPE. PRIVILEGE. Member of Congress privileged from ar- rest. Lewis v. Elmendorf, 494 REFEREE. Power of referee, expiration of time to report. Drawer v. Kingsley, 344 RENT. Accrued before death of decedent goes to executor or administrator; Accrued after death of decedent goes to heir. Executors of Van Rensselaer v. Eexcutors of Plainer, 423 REPRESENTATIONS. See INSURANCE, MARINE. SALE. Of land by sheriff. Jackson, ex dem. Jones, v. Striker, 327 SEAL. Power of one partner to bind his copart- ner by seal. Clement v. Brush, 661 SEAWORTHINESS. See INSURANCE, MARINE. SHAREHOLDERS. See STOCKS. SHERIFF. Sale of land by Jackson, ex dem. Jones, v. Striker, 327 See ESCAPE. 746 SLANDER AND LIBEL. Words, otherwise actionable, explained by reference to particular transaction; Burden of proof. Van Rensselaer P. Dole, 325 Words spoken relative to an officer. Dole v. Van Rensselaer, 342 STOCK. Liability of, for debts of shareholders ; Assignee of shares. Bates v. N. T. Ins. Co., 681 SUBPCENA. Waiver of service Andrews v. Andrews, 61 SUBSCRIBING WITNESS. Proof of handwriting of, see evidence. TRIAL. Second trial in criminal action may be had where jury fail to agree on first trial. People v. Olcott, 523 Change of place of, see VENUE. TRUSTS. See TRUSTS AND TRUSTEES, BAILMENT. TRUSTS AND TRUSTEES. Death of one of two or more trustees survival of trust, People v. Byron, 615 USAGE. Modifying insurance contracts. SURANCE, MARINE. USURY. See IN- 670 See note to Wilkie v. Roosevelt, Accommodation paper. Jones v. Hake, 438 Law of place, loan secured by mortgage. Van Schaick c. Edwards, 642 VENUE. Change of, on ground of that cause of ac- tion arising in another county; Residence of witnesses, motion. Bentley v. Weaver, 311 On ground of convenience of witnesses. Gourley v. Shoemaker, 364 On ground that fair trial could not be had. Affidavit, contents of, Scott v. Gibbs, 457 WARRANTY. See INSURANCE, MARINE. WILLS. Recitals in, estoppel. Denn, ex dem. Golden, v. Cor- nell, 659 WITNESS. Waiver of service of subprena, liability to attachment. Note to Andrews v. Andrews, 61 Competency on question of handwriting. See EVIDENCE. COL. AND CAI., AND JQHN. 1, 2, 3. GENERAL INDEX COLEMAN AND CAINES, AND THE THREE VOLUMES OF JOHNSON'S CASES CONTAINED IN THIS BOOK. FORMED BY CONSOLIDATION. N. B. Figures at right of title shows volume to whose index it belongs. Figures in parenthesis refer to marginal paging 9f the volumes contained in this book respectively, while the black-faced figures indicate the page of this book on which the marginal paging referred to is found. ABANDONMENT Johns. 1. See Insurance, 6, 7, 8, 9, 14, 15, 27. ABATEMENT-COL- and Cai. Where the name is a foreign name, it is sufficient if the pronunciation is preserved in the pleadings. (496) 206 ABATEMENT Johns. 1. See Practice, 29, 49. ABATEMENT-Johns. 2. Where a defendant is sentenced to the State Prison for life, he is regarded as civilly dead, and the suit against him is abated. Graham v. Adams, (408) 559 ABSENT AND ABSCONDING DEBTORS Johns. 1. See Debtors, absent and absconding. ACCOUNTS Johns. 2. Where A B and C entered into partnership, in 1767, and continued business until 1774, when B died, and the partnership was thereby dissolved, and C afterwards died in 1782, and A also died in 1788, and in 1794 the representatives of A filed a bill in chancery against the representatives of B and C for an examination and settlement of accounts, and for the payment of a balance claimed; the court dismissed the bill, on account of the lapse of time and death of the parties, considering it as a stale demand. Ray et al. v. Bogart et al. (432) 567 ACCORD AND SATISFACTION Johns. 3. A being indebted to B by a promissory note, for 81,667, it was agreed in writing between them that A should deliver to B as much coal, at $10 the chaldron, as would amount to the sum due on the note, the coal to be of the like quality with that purchased by A of B out of a certain ship. No time or place was fixed for delivery. A having in his coal yard a large quality of coal, and sufficient of the quantity mentioned, though consisting of different kinds, immediately afterwards, arid at dif- ferent times, tendered to B the coal, in satisfaction of the note, and B made no objection to the place or mode of delivery, but said at one time, that he would send and take them, and at another that he was not ready to receive them, and finally neglected to take them. In an action afterwards brought by B against A on the note, it was held that the agree- ment for the delivery of the coal was valid, and that the tender on the part of A was equivalent to a performance, so as to bar the plaintiff's action, and might be pleaded by way of accord and satis- faction. Cmt& Woolsey v. Houston, (243) 684 ACTS INTERPRETED Col. and Cai. Act for relief of debtors, with respect to the im- prisonment of their persons. (73, 78) 49, 89 Act for the relief of absconding and absent debtors. (78, 83, 85. 503) 5O, 90, 3O9 Act concerning the Supreme Court. (85, 89) 53, 92 Act to reduce the laws concerning costs into one statute. (96, 90) 52, 92 COL. AND CAI., AND JOHNS. 1, 2, 3. ACT FOR GIVING RELIEF IN CASES OF IN- SOLVENCY Johns. 1. See Debtors Insolvent. ACT FOR RELIEF AGAINST ABSENT AND ABSCONDING DEBTORS Johns. 1. See Debtors absent and absconding. ACT FOR THE RELIEF OF DEBTORS, WITH RESPECT TO THE IMPRISONMENT OF THEIR PERSONS Johns. 1. In proceedings under this act, creditors residing out of the State, as it respects notice, are to be con- sidered as not found. In Re Williams, (416) 374 See Practice, 6. AN ACT TO LAY A DUTY ON STRONG LIQ- UORS, AND FOR REGULATING INNS AND TAVERNS. (24 SESS., CH. 164.)- Johns. 2. 1. In an action rjui tarn, &c., for the penalty given by the 7th sect, of the Act regulating inns and tav- erns, for retailing strong liquors, without a license ; it was held that a license granted by two of the commissioners of excise, without the presence or consent of the supervisor, and when they were not assembled for the purpose of granting licenses, was illegal and void ; and such a license, though regular on the face of it, is no justification to the tavern- keeper, who is liable for the penalty. Palmer qui tarn, &c. v. Donej/, (346) 539 2. But a tavern-keeper who has a legal and com- petent license, is not liable to the penalty for retail- ing liquors after his license has expired, and before the time of the next meeting of the commissioners of excise, for the purpose of granting licenses. Id. (7b.) 539 ACT CONCERNING SLAVES-Johns. 2. See Slaves, 1, 2, 3. ACTION OF ASSUMPSIT Johns. 1. If one of two partners in trade dies, an action of indehitatm asiftimpsit will lie against the survivor, for goods before sold to the partnership, without taking notice of the partnersnip, on the death of one, and the survivorship of the other. Ooelet v. M'lmtry, (405) 369 ACTION, COMMENCEMENT OF Johns. 1. See practice, 41. ACTION-Johns. 2. 1. In an action of debt on a judgment in the Su- preme Court of Pennsylvania the defendant pleaded 71 if dehct and payment ; and it was held that he was bound to produce and prove the record of the judg- ment, or an exemplification thereof. 'Rush r. Cohbett, (256) 5O7 2. Where A by writing, for a valuable considera- tion, guaranteed the payment of a sum of money by B to C, and Bon demand refused to pay at the time, and C gave notice to A of the failure of payment, and demanded the amount of him ; it was held that the demand of payment of B and refusal by him, 747 ii GENERAL INDEX. and notice thereof to A were sufficient to entitle C to recover against A on his guaranty, without a previous suit against B. Bank of New York u. Livingston, (409) 559 ACTION FOR MESNE PROFITS Johns. 2. An action for mesne profits is an equitable suit, in which every equitable defense may be set up. Murray v. Gouverneur & Kemble, (438) 569 ACTION FOR USE AND OCCUPATION Johns. 2. An action for use and occupation is not local in its nature, being founded on privity of contract, and not on privity of estate. Corporation of New York v. Dau-son, (335) 535 ACTION Johns. 3. 1. A note was lost or mislaid, and A, the maker, having paid the amount to B, the holder, took his bond of indemnity against the note, &c., and after- wards A having a demand against B for money, B refused to pay, without first deducting the amount of the note, to which A consented and took the bal- ance, and a receipt from B for the amount of the note as due, and afterwards brought an action against B on his bond of indemnity. It was held, that the second payment, being voluntary on the part of A and no fraud alleged on the part of B, no action could be maintained against him on the bond. Bazen v. Roget, (87) 627 2. The issuing of the writ in a cause is, for every material purpose, the commencement of the suit. Carpenter v. Butterfield, (145) 649 3. Where a right of action is vested, and an action commenced, nothing can deprive the plaintiff of his right to recover, except some act done by himself in relation to that right. Id. (Ib.) 649 ACTION FOR MONEY HAD AND RECEIVED Johns. 3. A subscribed fifty shares in The New York Insur- ance Company, at $50 each, the amount to be paid in five installments of 10 on each share ; and by the articles of association, no transfer of any share could be made, until all the installments were paid in. A, after paying the two first installments, on the 22d July, 1796, assigned the shares, and all his interest therein, to B, who punctually paid the three remaining installments to the company, at the times at which they were respectively payable. The com- pany knew of the assignment to B, on the 20th Jan- uary, 1797, and between that time and the 20th Jan- uary, 1798, three dividends had been declared on the stock or shares by the company, which amounted to $525. The company held three notes of A, given forpremiums of insurance, one of which, dated the 3d June, 1796, was for $1,000, and became due in De- cember, 1796, and the others, dated in September, 1796, became due in March f ollowing ; and they ap- plied the $525, due for the dividends, towards the payment of A's notes, after deducting which sum, and the sum for the return of premiums, there re- mained due to the company, on the notes of A, $465; and when B, on the 20th January, 1798, paid the last installment, and demanded a transfer of the shares to him, the company refused to make the transfer until the balance due from A (who was then insolvent) was paid to them. B paid the $465 to the company, who thereupon made the transfer to him. In an action for money had and received, &c., brought by B against the company, to recover back the $465, and also the dividends after the 20th Jan- uary, 1797, it was held that the action would lie, and that the plaintiff was entitled to recover back the $465 paid by him, but not the dividends received by the defendants prior to the 20th January, 1798, as the defendants had an equitable lien on that money in their hands, to pay the note of A, which was actually due to them, before they had notice of the assignment to B. Bate* v. The New York Insurance Company, (238) 681 ADULTERY-Johns. 1. See Evidence, 2. ADVERTISEMENT-Col. and Cai. Where the statute requires three months adver- tisement, a weekly notice is sufficient. (428) 186 AFFIDAVIT Col. and Cai. other affidavits but those on which he originally grounded it. Supplementary affidavits cannot be received. (113, 116, 465) 59. 99, 196 2. Not even to a collateral fact. (224) 139 3. How to proceed upon discovery of new facts after notice. (406) 17 4. When affidavit to support a motion is made by a third person, a sufficient reason must be shown why it was not made by the defendant himself, be- fore the court will allow it to be read. (465) 196 5. The jurats of affidavits must be signed by the person before whom the oath is taken, and it must mention his office. (468) 197 6. Affidavit of service made by the attorney, on information from a clerk who had left the State, held sufficient. (474) 199- 7. Affidavit to support a motion for judgment as in case of nonsuit, must be made by the attorney for the defendant, and not by his clerk ut semb, and must state that the cause was not tried. (481) 2O1 8. Affidavit need not be subscribed by deponent; it is sufficient that his name is at the top of it. (495) 306 9. If the affidavit of service of notice merely states that notice was served without setting forth a copy of that notice, it is sufficient, if there is no opposition. (473) 199 10. The court will not set aside a regular verdict on a mere affidavit of merits. (214) 136 AFFIDAVIT Johns. 1. An affidavit, on which a notice is made for a rule against the Court of Common Pleas, to show cause why a matulam its should not issue, directing them to restore an attorney to his office, must state that the attorney was improperly removed. Ex-parte Gephard, (134) 271 See Bill in Chancery, 1, 2, 3. AFFIDAVIT Johns. 2. 1. The affidavit on which a motion for a commis- sion is made ought to state that there are material witnesses to be examined at the place to which the commission is to be directed. A general affidavit that material evidence is to be obtained in the cause is not sufficient. Franklin v. The United Insurance Company, (68) 441 2. An affidavit on which a motion is made for a commission to examine witnesses, may be made by a third person, not a party to a suit. Demar v. Van Zandt, (69) 441 3. Counter affidavits may be read to oppose a motion, though copies have not been served, but supplementary affidavits in support of a motion, cannot be read. Campbell v. Grove, (105) 454 4. In ossumpsii, the venue will not be changed on a general affidavit. Wheaton v. Slosson, (111) 456 5. An affidavit to change the venue made by the defendant's attorney, stating that the plaintiff con- fessed that the cause of action arose in another county, was held sufficient. Scott i?. Gibbis, (116) 457 6. A counter affidavit of the plaintiff that he believed that he could not have a fair trial in the county to which the venue was moved to be changed, is not sufficient. He ought to state the facts on which his belief is founded. Id. Qb.) 457 7. An affidavit of service on a clerk of an attor- ney, must state that the clerk was, at the time, in the office of the attorney. Paddock v. Bebee, (117) 458 AGENT-Johns. 1. 1. An agent to whom a bill of exchange was re- I mitted for collection, though liable for neglect in the first instance, was held discharged from his re- sponsibility, by the principal's adopting his acts. Tmi'le and Jackson v. Stevenson, (110) 268 2. Where an agent received goods upon condition to pay to B a certain sum out of the first proceeds thereof, which acceptance so made was afterwards approved of by the principal, the agent was held bound to pay to B the sum stipulated, notwith- standing the goods had been previously assigned by the principal to C without the knowledge of the agent. Nettson v. Blight, (205) 298 See Factor, 1, 2, 3. AGENT-Johns. 2. See judgment as in case of nonsuit. (9) 32 Where A received from B the note of C to collect, 1. A party can never support his motion by any i and C being reputed insolvent, and having ab- 4g COL. AND CAI., AND JOHNS. 1, 2, 3. GENERAL INDEX. iii sconded, D in behalf of C offered to pay A thirteen shillings and four pence in the pound for the debt, and this proposal being 1 communicated to B he made no objection, and A afterwards settled with D at that rate, it was held that A was not responsible to B for more than he received of D, the silence of B amounting to an assent to the proposal, and a rati- fication of the act of A. Armstrong & Barnwall v. Gttchrist, (424) 564 See Insurance, 21. AGENT- Johns. 3. See Factor. Insurance, 26. AGREEMENT Col. and Cai. 1. Where parties agree to submit a cause to the sheriff, the inquest is in nature of an arbitrament, and the inquisition will not be set aside because the sheriff admitted improper or rejected proper testi- mony. (135) 65,105 2. When the court has upon application relieved a party from an agreement made with his oppo- nent, he is thereby restored to all his previous rights. (192) 180 3. The rule that all agreements must be in writ- ing, extends as well to the parties as the attorneys. (473) 199 4. If a verbal agreement is admitted by the par- ties, and no objection raised on the ground of its being verbal, the court will give it effect. (474) 199 AGREEMENT Johns. 3. A and B entered into a written agreement, by which A agreed to convey to B 700 acres of land, to be appraised, in part payment for a farm, valued at $3,750, which B agreed to sell to A, and it was cove- nanted that in case either party failed to fulfill the agreement, the party failing to perform "should forfeit and pay to the party who should fulfill the agreement, the sum of 2,000 and damages." It was held, that the $2,000 was, according to the intention of the parties, as inferred from the whole agree- ment, to be considered as a penalty, and not as stip- ulated damages. Dennis r. Cummins, (297) 7O2 See Contract, 1, 2, 3. ALIEN Col. and Cai. The petition of an alien defendant to remove the cause into the federal court, is in season, though filed after bail put in, if the plaintiff has accepted to the bail, and bail has not been perfected. (58,64,227) 45,85,130 ALIEN Johns. 1. 1. A conveyed land to B in trust for C, who was an alien, C. afterwards, and before any office found, became duly naturalized, and B then released to him the estate so held in trust: It was held, that the conveyance to C was valid. Jackson, ex dem. Culverhouse, v. Beach, (399) 367 2. No title, in case of alienism, vests in the people of the State, until after office found, (lb.) 367 3. Naturalization has a retroactive effect, and con- firms the former title of the alien, (lb.) 367 ALIEN Johns. 2. 1. A widow, whose husband emigrated from Ire- land to New York in 1760, and died possessed of lands in 1798, who had herself continued to reside in Ireland, being an alien, is entitled to dower in lands of which her husband was seized prior to the Ameri- can Revolution, or the 4th July, 1776, but not in .such lands as he acquired after that period. Kelly v. Harrison, (29) 437 2. Where A a British subject became a natural- ized citizen of this State, and took the oaths of ab- juration and allegiance in 1784 ; and afterwards, in 1795, took an oath of allegiance to the King of Spain and was appointed a consul for the Spanish king, and continued to reside in New York, without ever changing his domicile ; it was held he was still to be considered as an American citizen, and not a Span- ish subject or alien. Fish v. Stoughton, (407) 558 ALIEN-Johns. 3. Though in case of a purchase, the law will recog- nize the title of an alien in lands, until office found ; yet in case of a descent, the law takes no notice of an alien heir, on whom, therefore, the inheritance is not cast. But where the title to land in this State was acquired bv a British subject, prior to the American Revolution, it seems that the right of COL. AND CAI., AND JOHNS. 1, 2, 3. such British subject to transmit the same, by de- scent, to an heir, in esiie, at the time of the Revolu- tion, continued unaltered and unimpaired ; the case of a revolution or division of an empire, being an exception to the general rule of law on this subject. The objection of alienism is not to be favored. Jackson, ex dem. Ganxevoort, etal.,v. Lunn, (109) 636 See Feme Covert. Revolution. AMENDMENT-Col. and Cai. See cases. (5) 31 See ejectment. (10) 32 1. The plaintiff may amend a declaration in eject- ment, by adding a new demise of a new lessor, up- on payment of costs, if the defendant elects to re- linquish his plea. (49, 55) 43, 83 2. A writ may be amended by adding the clerk's name, on payment of costs. (55, 61) 44, 84 3. A writ of venditioni exponas may be amended after a second nonsuit awarded for variance be- tween writ and record. , (59, 64) 45, 85 4. As long as the record is before the court, amendments to which the party would be entitled as of course, will be allowed by the court, on pay- ment of costs, provided no prejudice thereby ac- crues to the opposite party. (61, 67) 46, 86 5. The interrogatories filed against a sheriff on an attachment, may be amended after the sheriff has answered them, if the amendment be not to new matter, but merely to obtain a more full answer. (64,70) 47,87 6. Fi. fa. may be amended after it is returned sat- isfied. (66,71) 47,87 7. A defendant cannot amend by adding a new plea. (87,92) 53,93 8. Where a plaintiff amends his narr. after plea pleaded, the defendant is entitled both to impar- lance and costs. (92, 96, 231) 64, 94. 131 9. A count may be amended by the original writ. (158) 111 10. The dclaration delivered to a tenant, may be amended before the tenant's appearance. (228) '13O 11. A declaration allowed to be amended on com- mon terms, six years after service, by adding new demises from new lessors. (230) 131 12. Certwrari allowed to be amended after return, by altering it from case to debt. (303) 15O 13. A record not amendable after trial, by insert- ing an award of a venire de novo. (336) 132 14. Quce,re, whether after verdict, declaration may be amended by increasing the damages laid. (337) 133 15. Amendment allowed after opinion pronounc- ed on demurrer. (396) 148 16. Ca. sa. allowed to be amended after action brought for false imprisonment under it. (450) 192 AMENDMENT Johns. 1. 1. On error coram vobis, an amendment of the record was allowed by entering a suggestion of the death of one of the defendants, pending the original action. Hamilton v. Hnlcnmb. (29) 229 2. A fieri facias, after it had been returned satis- fled, was allowed to be amended. Phelps v. BaU, (31) 23O 3. The jurata and distringas may be amended after a verdict, without costs. Heermancc v. Delamater, (220) 3O3 4. Before a default for not joining in demurrer, the party may amend the plea demurred to, but not add a new one. Doyle v. Mmilton, (246) 313 5. The plaintiff cannot amend his declaration after plea pleaded, without paying costs and giving an imparlance. Holmes v. Lansing, (lb.) 313 AMENDMENT Johns. 2. 1. A declaration was allowed to be amended, by increasing the aiiiouiit of damages laid in the con- clusion ot the declaration, on payment of costs. Bogart r. W Donald, (219) 493 2. A declaration may be amended, after a plea in abatement, but not by adding the name of another defendant, against whom a separate suit was brought for the same demand. STwte v. Davis et al., (336) 535 APPEAL Johns. 1. See Practice in the Court of Errors. Costs in the Court of Errors. APPEARANCE Col. and Cai. 1. When a writ is returned with the defendant's appearance indorsed, it is the duty of the clerk, and 749 iv GENERAL INDEX. not of the attorney, to enter it, and if he neglects, it may be entered nuiic pro time after default en- tered. (324) 156 2. When an appearance is indorsed on a writ in vacation, returnable in a preceding- term, and the plaintiff neglects to file it, the court on application, will allow it to be filed, and appearan9e entered of a subsequent term, but not of that in which the writ was returnable, ut senib. (327) 157 3. Indorsement of appearance on a writ in vaca- tion, after the day on which it is returnable, is not a written agreement within the meaning of the rule of court, that the proceedings shall be of that term. (lb.) 157 ARGUMENT Col. and Cai. Either party may notice cause for argument. (131) 63,103 ARREST OF JUDGMENT Col. and Cai. See pleadings, (5) 31 1. It is not to late to move in arrest of judgment on the merits, after attending the execution of a writ of inquiry. (183) 118 2. If the judge certifies that the evidence given would apply as well to the good as to the bad counts, a general verdict may be amended. (280) 144 3. When upon motion in arrest of judgment a general verdict is prayed to be amended, the cor- rect practice is, to obtain the judge's certificate of the application of the testimony given. (283, in note.) 144 4. A defect of record is moveable in arrest of judsr- ment. (336) 159 5. Motion in arrest of judgment is a non-enume- rated motion, and the notice need not specify the reasons. (394) 176 6. That there is a variance between the issue roll and the misi prius roll, is no ground of motion in arrest of judgment. (487) 2O3 7. Nor is an award of a venire on an insufficient suggestion. (lb.) 203 ARREST OF JUDGMENT. See Practice, 37, 38. ARREST OF JUDGMENT Johns. 3. Where an indictment was found at the general sessions of the peace of the county in which the de- fendant was convicted, at the Oyer and Terminer, and the indictment was removed into this court, with a caption stating that the grand jury were sworn and charged, omitting the words "then and there," on motion in arrest of judgment, the omis- sion of those words was held fatal, and the judg- ment arrested. The People v. Guernsey, (265) 691 ASSIGNEE Johns. 1. Where the obligor of a bond, after notice of its being assigned, took a release from the obligee, and pleaded the release to an action brought by the as- signee, in the name of the obligee, and the plaintiff replied the prior assignment, the replication was held good, and the release a nullity. Andrews v. Beecker, (411) 372 ASSIGNMENT Johns. 2. 1. Courts of law will take notice of and protect the rights of assignees. Wardell v. Eden, (121) 459 2. Where a plaintiff after he had assigned a judg- ment to a third person, entered up satisfaction on the record, the court on motion ordered the entry of the satisfaction to be vacated. Id. (lb.) 459 S. P. Wardell v. Eden, (258) 508 3. A and B, partners in trade, Having dissolved their partnership, B took the property and engaged to pay all the debts, among which was a judgment against A and B at the suit of C. B having become insolvent, C threatened to take out execution on the judgment against A who therefore paid the amount, and C agreed that A should have the bene- fit of the judgment to recover the amount out of the property of B in the name of C. A sued out an execution against the lands of B which were bound by the judgment. B assigned over all his property to D and others, for the benefit of his creditors. It was held that A was to be considered merely as a surety of B and entitled to an equitable lien on the property of B and that D and others to whom it was assigned, took it, subject to such equitable lien, and could not therefore be relieved by audita querela. Waddinaton et al. v. Vrederibergh, (227) 497 750 ASSUMPSIT Col. and Cai. Assumpsit founded on a past consideration, good. (333) 158 ASSUMPSIT Johns. 2. Where A directed B, his servant, to enter a certain meadow which he said belonged to him, but which was, in fact, the meadow of C, and promised to save B harmless, &c., the promise was held to be an ori- ginal undertaking, and not necessary to be in writ- ing, and that the act of B in obeying such a com- mand was lawful, and a sufficient consideration to support the promise of indemnity. Allaire v. Ouland, (52) 435 ATTACHMENT Col. and Cai. 1. The court will grant an attachment, in the first instance, against a witness, on an affidavit of his being regularly summoned and expenses tendered to him, -and on this motion the sufficiency or insuffi- ciency of the sum tendered is immaterial, if no ob- jection was made by the witness at the time. (119, 121) 61, 101 2. Attachment lies for the cost of putting off a trial. (124, 126) 62. 102 3. How a party must proceed to entitle himself to his attachment. (lb. lb.) 62, 102 4. On a rule to show cause why an attachment should not issue for contempt of court, the party ought to appear in person. (301) 149 5. It is sufficient to answer by affidavit. (412) 181 6. Attachment for not obeying a peremptory mandamus refused, because it did not appear that it had been served on those who ought to obey it. (263) 139 ATTACHMENT-Johns. 1. See Practice, 7, 8, 50. Sheriff, 2. ATTAINDER, ACT OF Johns. 1. The wife of a person attainted under the Act of the 22d October, 1779, is entitled to dower out of the es- tate of her husband, which has become forfeited. Palmer v. Horton, (27) 229 ATTAINDER- Johns. 2. 1. Where a person was convicted under the Act of Forfeiture and Attainder, passed the 22d October, 1779, of adhering to the enemies of the State, and all his property, real and personal, was declared to be forfeited, it was held that he could not, after his re- turn to the State, maintain an action for rent which had accrued prior to the 28th October, 1779 ; nor could he set off the rent against the demand of the plaintiff in the suit against him. Sleght v. Kane, (236) 50O 2. Where a person whose real name was Joshua Temple De St. Croix, was convicted and attainted under the Act of the 22d October, 1779, by the name of Joshua De St. Croix, it was held that the pro- ceedings under the act were to be governed by the rules in cases of attainder, and not by the ordinary course of judicial proceedings ; that the conviction contained an imperfect or incompetent description of the person, which might be supplied by proof ; and that the identity of the person was a matter of fact to be ascertained by a jury. Jackson, ex dem. St. Oroix, v. Sands, (267) 511 3. Aliter, where the description of the person is false, or repugnant to truth. Id. (lb.) 511 , ATTORNEY-Col. and Cai. 1. An attorney, after he gives notice of retainer is entitled to all subsequent notices. (363) 139 2. When two attorneys give notice of retainer for the same defendant, it is incumbent on the plaintiff to inform the last, that he had received notice from another. (61, 66) 46. 86 3. If an attorney appear for the defendant as agent, and not as an attorney, and take any steps in such capacity, the court will set them aside, and compel the attorney himself to pay costs. (70, 75) 48, 88 4. When an action on a note of hand was com- menced against T. and C. and T. only taken, who employed an attorney, and afterwards C. takes up the note and pays the plaintiff's costs, T.'s attorney proceeds and obtains judgment as in case of non- suit, the court will set aside the proceedings, and make the attorney pay the costs of the motion. (76) 49,89 5. When a compromise takes place between the plaintiff and defendant, and the plaintiff instructs his attorney to stay, on payment of costs ; if they remain unpaid, he is entitled to proceed in the ac- tion. (113, 115) 59, 99 CCXL. AND CAI., AND JOHNS. 1, 2, 3. GENERAL INDEX. 6. If an attorney does not practice for one year, he loses his privilege. (134) 64, 1O4 7. Where an attorney in the course of a cause is promoted to the bench, the opposite party, on giving thirty days notice to appoint another, may proceed as if no attorney had been retained. (486) 2O3 8. Where an attorney retains his client's money, on the ground of counter-claims, the court will order the attorney to exhibit his counter-claim to the clerk and pay in the balance, if any, in twenty days, or that attachment issue. (497) 206 ATTORNEY Johns. 1. It is improper for an attorney to appear and act for a party in a suit, as an agent, and not as an at- torney. Meyer v. Denning, (105) 259 See Costs. Pleadings, 29. Practice, 35. ATTORNEY- Johns. 2. An attorney of this court, who had ceased to prac- tice for a year, and had entered the Army of the United States, was held to have lost his privilege. Brooks v. Patterson, (103) 453 ATTORNEY Johns. 3. Where the attorney of 'a party dies, actual notice or warning must be given to him to appoint an- other attorney. A notice put up in the clerk's office, or a notice of the proceedings in the cause, is not sufficient. Hildreth v. Harvey, (300) 703 See authority. AUCTION Johns. 3. See Sale at Auction. AUDITA QUERELA Johns. 2. 1. An audita querela, quia limit, cannot be sued out by a purchaser of land, until after an execution has been issued. Waddington et al. v. Vrederibergh, (227) 497 2. The writ of audita querela must be allowed in open court, but is not, of itself, a supersedeas ; and where a party is not in actual custody, or sues quia timet, a venire facias is the proper process. Id. (Ib.) 497 3. A and B, partners in trade, having dissolved their partnership, B took the property, and engaged to pay all the debts, among which was a judgment against A and B at the suit of C. B having been in- solvent, C threatened to take out execution against A, who paid the amount of the judgment, and C agreed that A should have the benefit of the judg- ment to recover the amount out of the property of B in the name of C. A sued out execution on the judgment against the lands of B which were bound by the judgment. B assigned all his property to D and others for the benefit of his creditors. It was held that A was to be considered merely as the sure- ty of B and entitled to an equitable lien on the prop- erty of B and that D, and others to whom.it was as- signed took it subject to such equitable lien ; and the court refused to relieve them against the exe- cution on an audita querela. Id. (Ib.) 497 AUTHORITY Johns. 3. A person who signs a note in the name of another, as his attorney, without any authority for that pur- pose, is personally liable on the note to the party who accepts the note under such mistake or impo- sition. Dusenbury v. Ellis, (70) 621 BAIL Col. and Cai. 1. It is requisite if the plaintiff exacts it, that two responsible persons should become bail. (53, 59) 44, 84 2. Surrender by one of two bail is good and avail- able for both. If bail are sued jointly, he who is first taken has time to surrender until the last is taken ; but if separately sued they may be separate- ly fixed. (Ib.) Id. 44,84 3. Court will always relieve bail, on return of the bail-bond writ. (57,58,63,64) 45,85 4. When the principal is confined for a felony, and the bail bona fide attempt a surrender before return of capias which is frustrated, and the prin- cipal is afterwards imprisoned for life, the court will enter an exoneretur. (60, 66) 46, 86 COL. AND CAI., AND JOHNS. 1, 2, 3. 5. In an action on a bail-bond, the equity powers of the court can never be exercised until after for- feiture. (65, 71) 47,87 Where an action is commenced against five, and four are arrested, and bail-bond taken for appear- ance of five, and an action commenced against all on bond, the court will not interfere on motion, but will compel the defendants to resort to their Plea. (ib.) 47, 87 6. The court will stay proceedings on the bail- bond where the plaintiff has neglected to except to the bail put in. (95, 99) 55, 95 7. Bail may depute ex necessitate. (108, 111) 58,98 8. If a party convicted of a conspiracy appears before the court on his own petition, to have judg- ment passed upon him, if the record of conviction is not made up and brought into court, he is to be admitted to bail. (176) 116 9. Where the court will allow the plaintiff's at- torney to put in bail for the defendant in order to surrender him. (314) 153 10. Common bail, when allowed to be filed nunc pro tune. (441) 189 11. The court under special circumstances, will delay the time for bail to surrender the principal. (481) 201 12. To fix bail there is no need of eight days be- tween the test e and return of the ca. sa. (503) 2O8 BAIL Johns. 2. 1. Where the proceedings against bail were irreg- ular ; but they suffered two te -ins to elapse, after a knowledge of the irregularity before they applied to set aside the proceedings, the motion was de- nied, as coming too late. Jones v. Dunning & Doe, (74) 443 2. Where the plaintiff agreed to stay the proceed- ings in a bail-bond suit, on payment of costs, the original suit having been settled, and the defendant neglecting to pay the costs, the plaintiff proceeded in the bail-bond suit, the court refused to set aside the proceedings, as the plaintiff had no other way of obtaining his costs. Camp v. Grove, (105) 454 3. On an application to set aside a default for not pleading, bail are not entitled to any peculiar indul- gence. Gorham v. Lansing <& Doe, (107) 455 4. If the principal be surrendered, pending the suit by scire facias against the bail, the court will not allow an exoneretur to be entered on the bail- piece, until the costs of the proceedings against bail are paid. Parker v. Tomlinson, (220) 495 5. Where the principal against whom a commis- sion of bankruptcy had issued, was arrested on a ca. sa. and discharged, it was held that his bail were also discharged, and it was not necessary to enter an exoneretur on the bailpiece. Milner et al. v. Green, (283) 516 6. In an action of scire facias against bail, the de- fendant pleaded that another person of the same name and description became bail, and traversed that he was the same person named in the bail- piece. It was proved at the trial, that the name of Elnathan Noble, the defendant, was inserted in the bailpiece ; but that Stephen Norton was the person who intended to be bail, and who, in fact, appeared before the judge who signed the acknowledgement on the bailpiece. The plea was held good, and the evidence competent to support the plea, on the issue joined, as to the identity of the person. Renoard v. Noble, (393) 52O 7. Where bail are personated, the court will, in their discretion, on motion, order a vacatur of the bail ; but if there has been a felonious personating of the bail, they will stay any order for relief, until the party personated has prosecuted the felon. Id. (Ib.) 520 8. Bail to the sheriff are responsible only for the principalland interest due on the bond in the origi- nal suit, and not for any matter dehors the condition for which the penalty is claimed as security. TreadweUv.M'KceletaL, (340) 537 9. Where the principal in a cause had obtained his discharge under the bankrupt law of the United States, before the bail had become fixed, the court ordered an eroneretur to be entered on the bail- piece. Kane v. Ingraham, (403) 555 10. Bail are not considered as fixed, until after eight days in full term, after the return of process against them, or within the time allowed for the surrender of the principal. Id. (Ib.) 555 751 GENERAL INDEX. BAIL AND BAIL-BOND-Johns. 1. 1. Bail are entitled to an exorwretur where the prisoner is committed to prison on a charge of felony. Cathcart v. Cannon, (28) 229 2. The court will not exercise its equity power, in granting 1 relief on bail-bonds, until after the condi- tion is forfeited. Bird v. Mabbett, (31) 23O 3. Where bail are relieved, on payment of costs, it is a condition which they must offer to perform, without waiting for a tender of the bill. Cathcart v. Cannon, (220) 3O3 4. After the special bail is put in, the plaintiff, if he is dissatisfied with it, must except to it, and can- not proceed on the bail-bond. Ferrfe r. Phelps, (249) 314 5. If the bail surrender the principal within 8 days in term after the return of process against them, it is sufficient, and the exoneretur may be entered af- terwards. Strong v. Barber and Griffin, (329) 342 6. Bail having 8 days in full term, after return of capias against them, within which to return their principal, application for leave to surrender before the expiration of that time is unnecessary and pre- mature. Ettwtt v. Hay, (334) 344 See Homine Replegiando. Practice, 48, 52, 53. BANK OF THE UNITED STATES-Johns. 1. In an action brought by the President, Directors and Company of the Bank of the United States, it is not necessary to set forth the act of incorpora- tion, or the names of the individuals composing the company. President, Directors and Company of the Bank of the United States v.Haskins, (132) 271 BANKRUPT Johns. 2. 1. Where a person against whom a commission of bankruptcy had issued, was arrested on a ca. so. and discharged, it was held that his bail in the suit were also discharged, Mttner et al. v. Green, (283) 516 2. Whether the court has power to discharge a defendant from execution, on the ground, that a < -i . n 1 1 1 1 issi * m of bankruptcy has issued against him ? Quaere. Id. (Ib.) 576 BILL IN CHANCERY Johns. 1. 1. Where a bill filed by several complainants, praying an injunction, and seeking' relief, on ac- count of lost deeds, an affidavit of one of the com- plainants that "he had been informed and verily be- lieved, and hoped to be able to prove, that the deeds in question did not exist ; but were_ now lost or de- stroyed in the manner mentioned in the bill," was held sufficient. Le Roy v. Feeder et al. (In Error). (417) 375 2. Where a bill seeks to perpetuate the testimony of aged and infirm witnesses ; or where a bill seeks to have a title established, and the possession quiet- ed, an affidavit of the facts on which such applica- tion is founded, is necessary. Laioht et al. v. Morgan, (In Error) (429) 379 3. Where a bill seeks discovery as to lost deeds, which does not require an affidavit, and also to per- petuate the testimony of witnesses, a general de- murrer to the whole bill for want of an affidavit, is bad. (Ib.) 379 4. Where a bill is filed for a discovery and also for relief, the bill being good for the one object without affidavit, though not for the other, it will be retained as for the sound part ; and the defendant ought to answer to the part which is good, and demur, if he thinks proper, to the other. (Ib.) 379 BILL IN CHANCERY Johns. 3. See Chancery. BILLS OF EXCHANGE AND PROMISSORY NOTES Johns. 1. 1. Where after an assignment was made of all his estate by an insolvent debtor to trustees, for the benefit of all his creditors, and B, a debtor of the insolvent, purchased a promissory note of the in- solvent after it was due, but the exact time was not stated, it was presumed to have been purchased after the assignment ; for every presumption is to be made against the purchaser of a note after it is due. Johnson v. Bloodgood, (51) 239 752 2. A note of an insolvent debtor purchased after the assignment of all his estate to trustees, cannot be set off by the debtor of the insolvent against the debt for which a suit is brought by the assignees. (Ib.) 239 3. If an indorser of a promissory note, pay it after the maker has been discharged under the insolvent act, he may recover the amount from the maker, whose discharge will be no bar to the action. Frost v. Carter, (73) 247 4. In the case of bills of exchange and promissory notes, time is computed by calendar, and not by lunar months. LefflngweU and Pterpoint v. White, (99) 256 5. Where the indorsor of a promissory note, before it became due, informed the holder that the maker 1 had absconded, and being secured for his responsi- bility, he would give a new note, and requested time to pay, and in the mean time the note fell due, it was held that the holder was not bound to make a demand on the maker, or to give notice to the in- dorser, (Ib.) 256 6. Where one of a set of three bills of exchange on London was protested for non-payment, it was held that an action might be brought here on one of the set, not protested, with a protest of the other. Kenworthji v. Hopkins, (107) 261 7. A proceeding against the acceptor of a bill of exchange, under a commission of bankruptcy, in England, does not discharge the right or action against the indorser here, (lib.) 261 8. Where a bill of exchange, remitted to pay an antecedent debt, is returned protested, no damages are recoverable, (Ib.) 261 9. Where the holder of a note, on the day it was payable, received a part from the maker, and gave notice of non-payment generally, to the indqrser, it was held sufficient to charge the indorser with the payment of the residue. James v. Badger, (131) 27O 10. The indorsee of a promissory note given in Connecticut, where promissory notes are not nego- tiable, may maintain an action in his own name, in this State, against the maker. Lodge v. Phelps, (139) 275 11. A payment to a payee of a note before it was indorsed, cannot be set off by the maker in an ac- tion brought against him by the indorsee. Prior v. Jacocks, (169) 286 12. A notice to the indorsee on the third or last day of grace, after a demand on the maker, and his default, is good. Corpv.M'Comb, (328) 341 13. Where a note Is indorsed, after it is dishon- oured, the maker may set up every equitable de- fence, in an action by the indorsee, which he might have done against the payee. Sebring and Van Wyck v. Rathbun, (331) 342 14. But if the maker has confessed judgment on the note, in favor of the indorsee, the court will not, then, set aside the judgment in order to let in such equitable defense, (Ib.) 342 See Covenant, 1. BILLS OF EXCHANGE AND PROMISSORY NOTES-Johns. 2. 1. Where an agent receives a bill of exchange in order to obtain payment, he must send notice of the non-acceptance and nonpayment, with the protests, to the remitter of the bill, whose duty it is to give immediate notice to the drawer. Tunno & Cox v. Lague, (1) 417 2. If the agent himself undertakes to give notice to the drawer of the non-acceptance, &c., it will be sufficient if it be given, as soon as, under the cir- cumstances of the case, it could have been received from the holder. Id. (Ib.) 417 3. The prevalence of a malignant fever in the city of New York, where the party resided, was held a sufficient excuse for not giving notice to the draw- er until November, of a protest of nonpayment made in September. Id. (Ib.) 417 4. A drawer of a hill which has been accepted, is not responsible until after a default of the accept- or, and the holder must use due diligence to demand payment of the acceptor, before ne can resort to the drawer. Munroe .) 55, 95 3. The court will not set aside a default on an affi- davit of merits mentioned. (116, 118) GO, 1OO 4. There must be an affidavit of merits, and some excuse suggested for not having pleaded. (134, 125) 62, 102 Cot,., & COL. & CAI., & J.'s CAS. 1, 2, 3. 5. Default set aside on the ground of apparent mistake on the part of the defendant. (215,482) 127,201 6. Default set aside on the ground of surprise, the action being on a penal ordinance of the corpora- tion, and default entered pending a petition to cor- poration for relief. (420) 183 7. An affidavit of merits stating a conditional ac- ceptance of a bill by parol, is sufficient. (430) 186 8. On motion to set aside default, if there is a con- tradiction between the affidavits of plaintiff and defendant, the court will set aside the default on payment of costs if an affidavit of merits is pro- duced. (442) 19O 9. Default will not be set aside on an affidavit of a substantial defence" without stating that there are merits. (444) 190 10. Defaujt will not be set aside after judgment and execution without excusing laches, although defendant produces an affidavit of merits. f (447) 191 11. Default entered before writ returned and filed will be set aside for irregularity. (448) 191 12. What shall be a sufficient excuse to accompany an affidavit of merits. (478) 2OO DEMURRER Col. and Cai. 1. Defendant will not be allowed to withdraw a frivolous demurrer even on an affidavit of merits. (75, 80) 50, 90 2. It is plaintiff's right to make up the demurrer books and bring on the argument. (103, 106) 57, 97 3. Motion for judgment on a frivolous demurrer must be brought on by notice of argument. (345) 162 4. And the notice must state that the motion will be grounded on the f rivolousness of the demurrer. (366, 470) 168. 198 5. Demurrer to evidence confesses all facts that a jury might infer. (387) 174 6. If demurrer is brought on as frivolous it is not sufficient for the opposite counsel to say, that they oppose. An opposition that has the colour of reali- ty must appear to the court. (415) 182 7. Demurrer, if not frivolous, may always be withdrawn during the term in which judgment on it is given, and defendant may then take issue on the facts. (416) 182 8. When there is a demurrer to the whole declara- tion and one count is clearly good, judgment must be for the plaintiff. (443) 19O DEMURRER Johns. 1. If a defendant puts in a frivolous demurrer, he cannot withdraw it afterwards, and plead the gen- eral issue, though he has a good defense. GrteivoM v. Haskins, (135) 272 See Practice, 9. DEMURRER (IN CHANCERY) Johns. 1. 1. A demurrer to a bill of discovery (charging that the defendants claimed land by conveyances from persons out of possession, and praying a dis- covery of that fact), because it might subject the de- fendant to the penalties of the act against buying pretended titles, is bad, unless it appears that the answer would show that the defendant knew of the vendors being out of possession, and of a subsisting adverse possession. Le Ron v. Veeder et al., (417) 375 2. If a complainant be properly before the court for a discovery, and at the same time prays relief, a general demurrer to the bill for want of equity, or because the complainant has adequate remedy at law, is bad, unless it is manifest, on the face of the bill, that no discovery or proof can posssibly make his case a subject of equitable jurisdiction. Id. <7W 375 3. Where several defendants in chancery put in separate demurrers, on which separate decrees were given, the Court of Errors, on the reversal of those decrees, on appeal, obliged each respective respond- ent to pay to the appellant his costs on the appeal, for each respective decree so reversed. Id. (Ib.) 375 4. Where a bill seeks discovery as to lost deeds, and also to perpetuate the testimony of witnesses, a general demurrer to the whole bill, for want of an affidavit, is bad. Laiylit et al. r. Morgan, (429) 379 DEMURRER TO EVIDENCEJohns. 3. On a demurrer to evidence, every fact which the jury could legally infer from the evidence, is ad- mitted. Forbes et al. r. Church, (159) 653 759 GENERAL, INDEX. DEMURRAGE Johns. 3. See Charter party. DEPOSITIONS DE BENE ESSE Johns. 1. When, and under what circumstances they can be taken. Mumford v. Church, (147) 278 See Evidence, 8. DESCENT Johns. 3. A, a feme covert, died seized of lands, in June, 175)5, leaving a husband, and two sons and three daughters. The husband continued seized, as ten- ant by the courtesy, until his death, in 1798. B, the eldest son, died abroad, in 1784, an infant, intestate, and without issue. C, the other son, on the death of his father, entered as heir to his mother. It was held that the descent was suspended, during the tenancy by courtesy, and that A being last seized, was the stock of descent; and as she died before the statute of descent*, C, the second son, took the inheritance, as sole heir to his mother. Jackson, ex dem. Gomez, et at. v. Hendricks, (214) 673 See Alien. DEVIATION Johns. 1. See Insurance, 10, 17, 23. DEVISE Johns. 1. See Will. DEVISE-Johns. 2. 1. Where a husband is witness to a will containing a devise to his wife, such devise is void, and the husband is a competent witness. Jackson, ex dem. Beach, et al. v. Durland, (314) 538 2. A devised lands to the use of his wife for life, and to B in fee, and if he died before arriving at full age, then to the surviving brothers of B in suc- cession, if of full age ; then to the first son of his niece M. and his heirs and assigns, forever ; and in default of such issue, remainder over to his own right heirs; and directed that in case his wife should die before B or his surviving brother should come of age, his niece M. should take possession. The wife and the niece of the testator both died before B. It was held that B had a vested interest in possession, on the death of the wife of the testa- tor, and that the devise to the niece failed. Id. (Ib.) 528 3. Where the whole property is devised with a particular interest given out of it, it operates by way of exception. (Ib.) 528 4. Where an absolute property is given, and a particular interest is given in the mean time, as un- til the devisee comes of full age, this will not oper- ate as a condition precedent, but as the descrip- tion of the time, when the remainderman is to take Id. (Ib.) 528 5. Where a precedent limitation, by any means whatever, fails, the subsequent limitation takes ef- fect. Id. (Ib.) 528 See Limitations. DEVISE Johns. 3. 1. N. in August, 1778, devised land to his son William for life, remainder to W., the son of William, living at the time of the devise, for life, with remainder to the first and every other son of the first son of William successively, in tail male, with remainder to the second son of William (then in esse), with re- mainder to his first and every other son, successive- ly in tail male, with remainder to every other un- born son of William, successively, in tail male ; re- mainder to the first and every other unborn daugh- ter of William, successively, in tail male ; remain- der to the testator's second son Samuel, for life ; remainder to the first and every other son of Samuel, successively, in tail male, with remainder to the testator's three daughters, in tail general, as tenants in common ; with remainder to the same three daughters in fee ; and devised to trustees to preserve contingent remainders. The testator died the 1st March, n^SO, leaving issue two sons. William and Samuel, and three daughters. William, the eldest son, entered under the will, and died seized, in April, 1796, leaving two sons, William and Henry; and William the grandson of the testator, entered, on the death of his father, under the will, and died seized, in June, 1799, leaving issue a daughter, and his wife priocment enceinte, who was delivered of a son, also named William, in October, 1799. It was 760 held, that the posthumous son took the estate in- remainder, by the devise, in the same manner as if he had been born in the lifetime of his father. Stedfast, ex dem. NicoV, v. Nicoll, (18) 6O3 2. A, by his last will and testament, among other things, devised as follows : "And whereas I have conveyed to my son C my lands at C, and to my son D my lands at F, I give and devise all my remaining lands and tenements and real estate whatsoever, to my sons C and D and my daughter," &c. It was held, that the recital in the will was evidence of a conveyance of the farm in F to D and that C as heir of the testator, was estopped, by the recital, to deny that the farm was conveyed to D and that the necessary intendment from the language of the clause in the will was that it was a conveyance in fee to D. Denn, ex dem. C. R. Golden, v. Cornell, (174) 659 DISCONTINUANCE-Col. and Cai. See Certiorari, 17. Judgment as in case of Non- suit, 6. 1. Discontinuance of a prior suit may be entered at any time before plea pleaded in the second suit for the same cause of action, and this without leave of the court or payment of costs. (94. 98) 64, 94 2. And if a discontinuance is entered upon receiv- ing a plea in abatement, and at a subsequent period nil capiat per breve entered, it shall have relation back to the time of entering the discontinuance. (Ib.) 54,94 DISSEISIN Johns. 1. Where a parol gift of land is made, and the donee leases the land, and the donor merely permits the lessee to build and enjoy the term, it does not op- erate as a disseisin. Jackson, ex dem. Van Alen, v. Rogers, (33) 233 DOWER Johns. 1. The wife of a person attainted under the Act of the 22d of October, 1779, is entitled to dower out of the estate of her husband, which has become forfeited. Palmer v. Horton, (27) 234 DOWER Johns. 2. K, a native of Ireland, removed to New York in 1760, where he continued to reside until his death,, in 1798. At the time of his removal from Ireland, he left a wife in that country, having- been married in 1750. His wife, who was also a native of Ireland, never left that country, but continued a subject of the King of Great Britain. In an action brought by the wife to recover her dower, it was held that,, being an alien, she could recover dower in those lands only of which K was seized before the 4th July, 1776, but not of those he acquired after that period. Kelly v. Harrison. (29) 427 EJECTMENT Col. and Cai. See Amendment, 1, 2, 3. Practice, 30. 1. It is a priority of interest, and not the receipt of rent, which is the true testimony of landlord or not. (56,62) 45,85 2. Where one of the lessors of the plaintiff is dead, the court will, upon application, order all counts to be struck out of the declaration in which he is averred to be lessor. (102, 105, 156) 56, 96. 11O- 3. Semb. When an ejectment is brought for a vacant possession, a person claiming title may be admitted to defend, and the strict English principles do not apply. (82, 87) 51. 91 4. Where an ejectment was served on tenant in possession, who shortly after left the premises and a new tenant entered, and plaintiff's agent, without the knowledge of plaintiff's attorney, served a new declaration on the second tenant ; this is a waiver of the proceedings against the first tenant. (109,112) 58.98 5. The defendant ought to file his plea at the same time that he signs the consent rule. If he neglects to file his plea, judgment must be entered against the casual ejector. It is irregular in this case to en- ter judgment by default against the tenant. (115.116) 60,100 6. He must not be considered in this case as not having appeared, and the judgment by default against the casual ejector is taken under the first rule entered at the return of the writ and not under any new rule. (120, 122) 61, 1O1 COL., & COL. & CAI., & J.'s CAS. 1, 2. 3, GENERAL LNDKX. 7. The court will not set aside a judgment against a casual ejector upon an affidavit that the party ap- plying has a claim; he ought to show that he is landlord. (208) 125 8. Although the notices to tenant, &c.. on file are misdirected, the court will presume the services regular if nothing further appears. (316) 153 9. How far the court will go to protect the posses- sion. (330, 477) 155, 2OO 10. A plaintiff may amend his declaration by add- ing a new count on terms. (408, 10) ISO, 32 11. In what manner the court will compel pay- ment of costs by a party made defendant instead of the casual ejector. (414) 181 12. On motion for attachment for non-pa yment of costs on account of the plaintiff being nonsuited for want of confessing lease, entry and ouster, affidavit must state that the person who demanded them of the tenant was duly authorised by the lessor of the plaintiff. (483) 2O2 13. Notice of motion to set aside proceedings against casual ejector, and that the tenant be ad- mitted to defend, is correctly signed by being signed by A as attorney for the tenant. (484) 2O2 EJECTMENT Johns. 1. 1. A parol gift of land creates only a tenancy at will ; and if the donee lease the land, and the donor merely permits the lessee to build and enjoy the term, the lease does not operate as a disseisin, or prevent the donor from devising the land, so that the devisee may maintain an action of ejectment, without giving notice to quit. Jackson, ex dem. Van AUn, v. Rogers, (33) 233 2. In an action of ejectment, the plaintiff gave ev- idence of a title to an undivided moiety of the prem- ises only ; but a general verdict was taken : A mo- tiod for a new trial was refused, the court ordering that the plaintiff, on the hob. fac. poas. should take possession of a moiety only. Jackson, ex dem. Moore, v. Van Bergen, (101) 257 3. A judgment by default against the casual eject- or, in ejectment, without previously entering the default for not appearing, is irregular. Jackson, ex dem. Vrooman, v. Smith, (106) 26O 4. In an action of ejectment, an actual entry is not necessary in any case, except to avoid a fine. Jackson, ex dem. Bronck, v. On/sler, (125) 267 5. After a sale of land by a sheriff under a ft. fa. the defendant becomes quasi a tenant at will to the purchaser, and his possession is not deemed adverse. Kane v. Stembergh, (153) 28O 6. The rules, as to proceedings in ejectment as for a vacant, possession in England, do not apply to the new or unsettled lands of this State. Saltonstall v. White, (221) 304 7. One of several coparceners may maintain an action of ejectment on Tier separate demise. Jackson, ex dem. Fttzroy, et al. v. Sample, (231) 307 8. A person cannot be a witness to show that he is the tenant in possession, and not the defendant. Brandt, ex dem. Van Corttandt, v. Dyckman, (275) 323 9. A recovery of nominal damages in ejectment is no bar to a subsequent action for the mesne profits. Fan Alen v. Rogers, (281) 325 10. The entry of a remittitur damna on the record, in an action of ejectment, is merely a matter of form, and if no remittitur is entered, and the plaintiff enters judgment for the damages and costs, it will not bar the plaintiff's action for the mesne profits, to which he is entitled from the time of the demise laid in the declaration. (Th.) 325 11. If the tenant has made improvements on the land, under a contract with the owner, he will not be allowed for them in an action of ejectment brought by the devisee of the owner, but must seek his com- pensation from the personal representatives of the devisor. (Ib.) 325 12. On affidavit of the tenant, that one of the lessors of the plaintiff was dead at the commencement of the action, the demise from such lessor was ordered to be struck out of the declaration. Jackson, ex dem. Butler, v. Ditz, (392) 364 13. Service of a second declaration in ejectment by the agent of the plaintiff, though without his knowledge, is a waiver of the first. Kemble v. Finch, (414) 373 EJECTMENT Johns. 2. 1. In ejectment, signing the consent rules, deliv- COL., & COL. & CAT., & J.'s CAS. 1, 2, 3. XV ering a new declaration, putting in common bail, and filing a plea, are all simultaneous acte ; and if the tenant neglects to file the plea instanter, a de- fault may be entered against the casual ejector. Jackson, ex dem. Quackenboss, v. Wood- ward, (HO) 456 2. Evidence of an agreement for a lease between the lessor of the plaintiff in ejectment, and the per- son in possession, is not sufficient to enable the plaintiff to recover the possession, when there is no proof that any lease was ever executed, or rent paid; and where the tenant claimed to hold ad- versely. Jackson, ex dem. Southampton, et al. v. Cooly, (223) 494 3. An equitable title cannot prevail in ejectment against the legal estate, more especially if such equitable title is dubious, Jackson, ex dem. Potter, et al. v. Sisson, (321) 53O 4. Where A, who had been many years in posses- sion of land under B, the supposed proprietor, ap- plied afterwards to C as the real owner, to purchase, and requested to be considered as his tenant ; in an action of an ejectment by C against A it was held that A might show that he had made the applica- tion and request to C under a mistake, and prove a title out of C, though he could not set up an adverse possession ; and that A was not entitled to notice to quit, as a tenant of C. Jackson, ex dem. Viely & Clark, v. Guerden, (353) 541 EJECTMENT Johns. 3. Where a landlord, in 1786, brought an action of ejectment against his tenant, holding under a lease containing a clause of re-entry for nonpayment of rent, and recovered judgment against the casual ejector, by default, under the statute, and posses- sion was thereupon delivered to the landlord, who executed a lease and gave possession to another person ; and the tenant under the first lease after- wards brought an action of ejectment, in 1790, for the same premises, against the tenant under the second lease ; it was held that the judgment by de- fault was, prima facie, regular, and a sufficient bar, and that the defendant was not obliged to show an affidavit, or any of the prerequisites to a recovery, required by the statute. (Sess. 24, ch. 36, sec. 23.) Jackson, ex dem. Smith, et at. v. Wilson, (295) 7O1 ENTRY Johns. 3. 1. A tract of land was granted by letters of pat- ent to A in 1735, which was surveyed and laid out into lots. In 1736, B executed leases for several lots to different persons, for lives, reserving rent, in which he asserted his claim to the whole tract, and exercised various acts of ownership, until his death, in 1752, and his heirs also gave leases of some of the l9ts, in 1767, and his title aid that of his heirs con- tinued to be acknowledged by the tenants, and re- mained undisputed, until 1783. In an action of ejectment brought by the heirs of B against C, who had been in possession since 1772, it was held that a grant from the original patentees to B was to be presumed; that entry by him into part, with a claim to the whole, was to be considered as an en- try into the whole ; and that the entry of C was in subordination to the title of B. Jacksim, ex dem. Gansevoort, et al. v. Lunn, (109) 63 2. An entry adverse to the lawful possessor is not to presumed, but must be proved. Jackson, ex dem. Gansevoort, v. Parker, (124) 641 ERROR Col. and Cai. 1. Error in record in Supreme Court amended in the Court of Errors. (41, 46) 41, 81 2. When either party is desirous of bringing a writ of error, the court will grant a rule on the suc- cessful party to have the roll signed and filed in four days, or that opuosite party have leave to do it. (49,54) 43,83 3. When want of plaint in court below is assigned for eiTor, the supreme court will compel that court, by mandamus, to grant leave to file it HI/HO fyrntunc. (55, 61) 44, 84 4. A party cannot assign error in process issued by himself. (384) 173 5. A writ of error cannot be nonprossed before it is returned into the court above. (231) 131 6. If on the justice's return it does not appear that a constable was sworn to attend the jury, it is a fatal error, and the court cannot supply it by in- tendment. " (417) 183 761 GENERAL INDEX. 8. In a justice's court, when the defendant refuses to plead, it is error to award a venire. (497) 2O6 See Sheriff. ESCAPE Johns. 2. ESCAPE Johns. 3. In an action against a sheriff for an escape, if it be averred, or found on the record, that the sheriff permitted the prisoner to escape, it is equiv- alent to the finding of a voluntary Holme* et al. r. Lansing, See Sheriff. Jail liberties, 2. escape. (73) 628 See Devise. ESTATE Johns. 3. ESTOPPEL Johns. 3. 1. By the common law a conveyance of land by a person against whom there is an adverse possession I at the time, to a third person, is void ; but the title I of the grantee is not thereby extinguished or deves- ted; nor will such conveyance inure, by way of estoppel, for the benefit of the defendant in posses- sion. Jackson e.r dem. Jones ct al. v. Brtnckerlwff, (101) 663 2. A stranger or third person, cannot avail him- self of an estoppel by a mere writing, or a matter iii uais. Id. (Ih.) 633 3. No person can be technically estopped by a con- veyance under the statute of uses. Id. (Ih.) 633 EVIDENCE-Col. and Cai. Office-copy of record is sufficient evidence of a judgment recovered in the Circuit Court of the United States for the Commonwealth of Massachu- setts. (135, 136) 65, 105 EVIDENCE Johns. 1. 1. Evidence of a parol agreement to enlarge the time of performance of a written contract, previ- ously made, is admissible. Keating v. Price, (22) 226 Quaere. If it be a covenant or sealed instrument. 2. On a feigned issue to try the fact of adultery, it was held, that the confession of the wife, connected with other proofs, were admissible in evidence. Doe v. Roe, (25) 228 3. Such confession, however, if made by collu- sion, or with a fraudulent intent, are entitled to no weight. Id. (Ih.) 228 4. Letters written by a party are not admissible evidence in his favour, though they are evidence against him. Towle and Jackson v. Stevemnn, (110) 262 5. In an action for breach of promise of marriage the defendant may give in evidence the licentious conduct of the plaintiff, in mitigation of damages. Johnston r. Canlkins, (116) 264 6. In such a case, it is not necessary for the plaintiff (female) to prove a previous offer to marry the defendant. Id (Ih.) 264 7. A receipt in full for money is not conclusive evidence ; and parol evidence of a mistake is ad- missible. En#ign v . Wehxter, (145) 277 8. A deposition taken de hene esse in a cause, after the writ was returned, but before the declaration was filed, and on the same day that the order of the judge was granted for that purpose, was allowed to be read, under the circumstances of the case : the witness being unexpectedly obliged to depart from the State on a distant voyage, and all the notice .given of his examination to the opposite party, that the urgency of the case would permit. Mumford v. Church, (147) 278 9. A resulting trust may be proved by parol. Jackson, ex dem. Kane, v. Sternhergh, (153) 280 10. Where the subscribing witness to a bond is dead, proof of his handwriting is sufficient evi- dence, prima facie. Matt r. Doughty, (230) 3O7 11. The record of a court in another State will not be received in evidence, unless the attestation be certified by the presiding judge of the court, Smith v. BtOfiae, (238) 31O 12. A paper, purporting to be the record of a deed, not duly acknowledged is a nullity, and not admissible in evidence, either as a record or a copy of a deed. Doe v. Roe, (402) 368 762 EVIDENCE Johns. 2. 1. In an action brought on a judgment of the Cir- cuit Court of the United States for the District of Massachusetts, the production of the record under the seal of the court, certified in the usual form, was held to be sufficient evidence. Pejxxm v. Jenkins, (119) 458 2. Where there are strong circumstances to sus- pect a note has been fraudulently altered, general corroborating circumstances may be admitted in evidence, to strengthen the suspicion ; as that other notes drawn and indorsed by the same parties, to take up one of which the note in question was given, had been altered. Rankin i\ Blackwell, (198) 486 3. The handwriting of the maker or indorser of a note may be proved by witnesses, from their previ- ous knowledge of his handwriting, derived from having seen the person write, or from authentic papers received in the course of business ; but if the witness has no previous knowledge of the hand- writing, he cannot be permitted to decide upon it, in court, from a comparison of hands. Titford v. Knott, (211) 49O 4. Whether papers signed by the party, and ad- mitted to be genuine, can be delivered to the jury to determine, by comparison, as to the genuineness of the paper in question '( Qucere. Id. (Ih.) 490 5. The confidential clerk of the plaintiff was ad- mitted to prove a correspondence, by letters, be- tween the plaintiff and defendant who resided in London, and to testify, that from the knowledge he had acquired from the letters of the defendant, re- ceived during this correspondence, he believed the indorsement in question to be the handwriting of the defendant, though the witness had never seen the defendant write. Id. (Ih.) 490 6. Evidence of an agreement for a lease between the lessor in ejectment and the person in possession, is not sufficient to enable the plaintiff to recover the possession, when there is no proof that any lease was ever executed, or rent paid, and where the tenant claimed to hold adversely. Jackson, ex dem. Southampton, et al. v. Cooly, 223) 494 7. In action of debt on a judgment in the Su- preme Court of Pennsylvania, the defendant pleaded nil dehet and payment. It was held that he was bound to produce and prove the record of the judg- ment, or an exemplification thereof. Rush v. Cohhett, (256) 5O7 8. In action of scire facias against bail, the de- fendant pleaded that another person of the same name and description became bail, and traversed that he was the person named in the bailpiece. At the trial, it was proved that the name of Elnathan Noble was inserted in the bailpiece ; but Stephen Norton was the person who intended to become bail, and who, in fact, appeared before the judge who signed the acknowledgement on the bailpiece. It was held that this evidence was admissible, and sufficient, on the issue joined, as to the identity of the person. Renoard v. Noble, (293) 52O 9. Parol evidence of the contents of a letter of attorney by the person to whom it was given is admissible, if it is proved satisfactorily that the power has been lost. Livingston v. Rogers (in error), (488) 587 EVIDENCE Johns. 3. 1. Parol evidence to show that it was the under- standing and intention of the parties to a policy of insurance, that it should be void, in case of a double insurance, is inadmissible. New Yeteiit witness to prove the trespass. Fan Nuw v. Terhune, (82) 626 4. The general rule is, that if a witness cannot gain or lose by the event of a suit, or if the verdict cannot be given in evidence, for or against him. in another suit, the objection goes to his credit, and not to his competency. Id. (Ih.) 626 COL., & COL. & CAI., & J.'s CAS. 1, 2, 3. GENERAL INDEX. 5. An interest in the question only, does not dis- qualify a witness, but the objection goes to his credit only. Id. (Ib.) 626 6. It seems that the printed statute book, con- taining- a private act, may be given in evidence against the party for whose benefit the act was passed, for he is presumed to be connusant of it, and cannot be surprised by the evidence. Duncan v. Duboys, (125) 641 7. A person is not a competent witness to impeach the validity of a negotiable note or instrument, which he has made or indorsed, though he is not interested in the event of the suit. Winton r. Saidler, (185) 663 8. The payee and indorser of a promissory note, who had been discharged under the bankrupt law of the United States, and had released all his inter- est, was held to be an incompetent witness to prove that the note was 'given for an usurious considera- i tion. Id. (Ib) 663 9. The record of a will proved under the statute {sess. 24, ch. 9, sec. 6), is not conclusive -upon the heir, so as to prevent the admission of evidence to impeach its validity. Jackson, ex dem. Woodhull, v. Rumsey, (234) 68O 10. The record of a will, like that of a deed, is only prima facie evidence of its authenticity. Id. (Ib.) 680 11. A pei-son who was a tenant under a devisee of part of the estate devised, was held to be a compe- tent witness in an action of ejectment brought by the heir against a tenant, who held part of the premises under the testator or devisee, and part under the ! witness, in order to impeach the validity of the will. Id. (Ib.) 680 12. A will executed in 1723, and which had been proved by the witnesses, in 1733 and 1744, and re- corded, but not in the manner authorized by law, was allowed to be read in eiidence, on the trial of an action of ejectment, in 1801, as an ancient deed, thoug-h actual possession did not follow and accom- pany the will, that being- explained by the peculiar situation of the property in question, and other cir- cumstances shown, to raise a presumption of the existence and genuineness 9f the will. Jackson, ex dem. Lewis, et al. v. Laroivay, (283) 697 13. A having- been convicted of forgery, was sen- tenced to the State Prison for life. He was after- wards pardoned by the governor. The pardon contained a proviso that it was not to be construed so as to relieve A from the legal disabilities arising from his conviction and sentence, &c., but only from the imprisonment. He was afterwards offered as a witness for the people, on a trial for an indict- ment, and admitted to testify, although objected to as incompetent. It was held that the proviso in the pardon being incongruous, and repugnant to the pardon itself, ought to be rejected, and that the witness was competent. The People v. Feme, (333) 714 See Demurrer to evidence. Ejectment. EXCEPTIONS Col. and Cai. See Bill of Error, 7. After return of sci. fa. qua ex. nnn and before as- signment of error, the court will allow the plaintiff in error to take'out a writ for the judges below to confess or deny their seal. (416) 182 EXECUTION Col. and Cai. See Amendment, 6, 16. 1. If an execution is issued into another county than that in which the venue is laid, without a testa- tum, it is void. (349) 163 2. If it is tested out of term, it is void. (Ib.) 163 3. The return of the execution is not requisite to the validity of the proceedings under it. (350) 163 EXECUTION Johns. 1. 1. The words in an alias fieri facias, "as before," &c., may be rejected as surplusage, no previous fi. fa. being in fact issued. Jackson, ex dem. Kane, v. Sternberyh, (153) 280 2. An incorrect return of & fieri facias by a sheriff will not defeat the sale under it, or affect the pur- chasers title. Id. (Ib.) 280 See Sheriff, 3, 4, 5. COL., & COL. & CAI., & J's CAS. 1, 2, 3. EXECUTORS AND ADMINISTRATORS Johns. 1. 1. On a plea of plene admiriistravtt, the onus pro- bandi lies on the defendant. Platt v. AdminMratitrs f Smith, (476) 391 2. A former judgment by default against execu- tors, and a fieri facias return nulla bona are conclu- sive evidence of a devastavit. Id. (Ib.) 391 3. The executor must defend himself in the first suit, or he will be precluded from alleging that he had no assets. Id. (Ib.) 391 See Costs, 3. EXECUTORS AND ADMINISTRATORS-Johns. 2. 1. Where R. granted and demised land to P. and his heirs, executors and administrators, reserving an annual rent which P. for himself, his heirs, exec- utors and administrators, covenanted to pay on the first day of May, in each year, it was held that the executors of R. could not recover rent which ac- crued subsequent to the death of their testator ; al- iter, for rent due prior to the testator's death. Executors of Van Rensselaer v. Exec- utes of Plainer, (17) 423 2. It seems, that an action of covenant will lie against the executors of the lessee on such a coven- ant, though the land had passed, by act of law. into other hands. (Id.) Ib 423 3. Where an estate in fee is granted, reserving an annual rent, the devisees of the grantor cannot maintain covenant against the executors of the grantee, or tenant in fee, for the rent in arrear. The Devisees of Van Renszelaer v. The Executors or Plainer, (34) 425 4. Where executors sued in this court, and re- covered less than $50, it was held that they were not entitled to recover costs, nor liable to pay costs to the defendant. Executors of Mahany v. Fuller, (209) 49O 5. Where judgment by default for want of a plea was regularly obtained against an administratrix, she was allowed to come in and plead ; but the judg- ment was directed to stand as security for the as- sets remaining, after payment of prior judgments confessed, and for assets quando acciderint. Nitchie v. Smith, (286) 517 6. A died intestate, leaving a widow and seven children, who were all minors, except one. A suit having been commenced in 1784, against the widow, as tenant in possession, under a lease for lives, the administrator, in 1784, after advising with counsel, and with the consent of the widow and one of the heirs, who was then of age, surrendered the lease, supposing- it to be forfeited, for the consideration of $750, though in fact it was worth a much larger sum. No release or conveyance having been exe- cuted by the administrator, the heirs afterwards brought an action of ejectment in the name of the administrator, to recover the possession of the leasehold estate ; and the administrator in 1799, though he then believed the property belonged to the heire, and was not forfeited, executed a release of the estate, and also of the action of ejectment, for the consideration of the 750 before received. In an action brought on the administration bond, alleging a derastavit, it was held that the adminis- trator was justifiable in surrendering the lease in 1784, in the manner he did, under the circumstances ; but that in 1799, when he was satisfied that he had acted before under a mistake, as to the lease being forfeited, he ought not to have executed the re- lease of the estate, and of the action brought for the benefit of the heirs, but have left the lessor to resort to a court of chancery to enforce the contract ; and, on this ground, he was held chargeable with a derastarit, for the difference between the sum re- ceived on the surrender, and the real value of the estate. The People r. Pleas & Clark, (376) 548 EXTINGUISHMENT Johns. 2. See Satisfaction. FACTOR Johns. 1. 1. L delivered to G and K his factors, a quantity of goods to be sold by them on commission ; and 7. When a bill of exceptions has been taken in the court of common pleas, the Supreme Court will not hear an assignment on the case, if no writ of error has been sued out. (491) 2O4 763 GENERAL INDEX. thev by the express intervention and direction of L sold the goods to A B and C, and by a written contract of sale made and executed between G & K and A B & C the latter agreed, among other things, to charter a certain vessel, to ship the goods pur- chased, on board of her, for Havre de Grace and Hamburgh, and to give G and K their promissory notes for the purchase money, payable in 12 months and also, that G and K should nave it in their op- tion to receive the whole or part of the amount of the notes at Havre de Grace, or any other port in Europe, at which the ship should discharge the goods. Before and after the shipment of the goods to Europe, L demanded of G and K a copy of the contract of sale, and an authorization from them, to receive from A B and C, or their agent, the amount of the sales, after deducting what was due to G and K for their commissions, advances and responsibili- ties, out of the first proceeds of the goods, at the port of discharge in Europe, which G and K re- fused to give to him, or to make the election ac- cording to the contract of sale, until they were paid or secured for theiradvances and responsibilities,&c. It was held that G and K, by refusing to exercise the right of election reserved in the contract of sale of the goods, or to give the necessary authority to L to receive the amount in Europe, according to his request, had substituted themselves in the place of the vendees, and become liable to pay to L the whole amount for which the goods sold, after deducting what was due to them on account of their agency, taking the risk of eventual recovery on the notes from the vendees. Le Guen v. Oouverneur & Kemble, (note,) (437) 388 2. Every sale of a factor being for the interest and benefit of his principal, he is bound to conf orm to the instructions of his principal, in everything not inconsistent with his rights as factor. Id. (Ib.) 382 3. A factor who is sued by his principal for a breach of trust or orders, whereby he has substitute ed himself in the place of a vendee, may set up fraud, or any other matter of defence which the vendee could have done, if the suit had been against him. Le Guen v. Qattoemew & Kemble, (In error,) (436) 381 See Agent, 1, 2. FACTOR OR AGENT Johns. 3. Where the insured employed a factor or agent to settle with the insurers for a total loss, and an abandonment was duly made, and the agent, after- wards, through mistake or misapprehension of a letter of the insured, or from negligence, adjusted the claim with the insurers as an average 1988, at twenty per cent, and cancelled the policy ; it was held, that the agent was responsible for the whole amount, being considered as substituted in the place of the insurers. Bundle et al. v. Moore and Pollock, (36) 6O9 FEIGNED ISSUE Col. and Cai. If an inquest be improperly taken in a feigned issue from the Court of Chancery, relief must be sought in this court. (303) 150 FEIGNED ISSUE Johns. 2. 1. An application for a feigned issue, is to the sound discretion of the court ; and it is awarded only for the information of the court, or where the party is otherwise without relief. WardeU v. Eden, (258) 5O8 2. Where the defendant alleged payment to the plaintiff, made by him on a judgment which had been assigned to a third person, the court, on u motion made for that purpose, refused to award an issue to try the truth and validity of the payment, but left the party to his remedy, by audita querela, as the time When the defendant received notice of the assignment was contested, Id. (Ih.) 508 3. The proper way to try the truth of the allega- tion of usury in regard to a judgment entered up on a bond and warrant of attorney, is to retain the judgment, and award a feigned issue to try the fact ; but where a judgment has been assigned bonn fide, and notice given to the defendant, the court, suspecting a collusion between the plaintiff and de- fendant to defeat the assignee, refused to award an issue. Id. (Ib.) 508 4. A feigned issue was awarded to try the truth of the allegation of usury on a bond, on which a judgment had been entered up, by virtue of a war- 701 rant of attorney, there being color for the alle- gation. Gilbert v. Eden, (280) 518- FEME COVERT Johns. 3. Where a British subject died seized of lands in this State, in 1752, leaving daughters in England, who married British subjects, and neither they nor their wives were American citizens, it was held that the husbands of the heiresses might be joined in demise with their wives, in order to maintain an action of ejectment; and that even if the marriages were subsequent to the American Revolution, such mar- riages_ with aliens would not impair the rights of the wives, nor prevent the full enjoyment of the property, according to the 1-iws of the marriage state; especially after the provision contained in the 9th article of the Treaty of Amity and Com- merce with Great Britain, of the 9th November, 1794. Jackson, ex dem. Gansevoort, et al., v. Lunn, (109) 636 FIERI FACIAS Johns. 1. See Execution. FINE Col. and Cai. Where the last proclamation of a fine was omitted at a previous term, it was allowed to be made nunc pro tune as of that term. (165) 113 FINE Johns. Z. See Indictment. FORCIBLE ENTRY AND DETAINER Col. and Cai. 1. If 24 grand jurors are sworn on the jury that find the bill, the objection is fatal. (365) 167 2. So if defendant appears voluntarily and offers to traverse and is refused. (364) 167 FORCIBLE ENTRY AND DETAINER Johns. 2. 1. An indictment for a forcible entry and detain- er, before two justices, being removed to this court by certiorari, the defendant was served with a notice of a rule to assign errors in twenty days, and no as- signment being made, a judgment by default was entered, and the defendant afterwards filed his plea. It was held that the rule to assign errors was a nul- lity ; the prosecutor ought to have called on the de- fendant to plead or abide by his former plea ; and the judgment and subsequent proceedings were set aside for irregularity. The People, ex rel. Quackenboss, r. Burtch, (400) 556 2. The landlord may be let in to defend, in an ac- tion for a forcible entry and detainer, as well as in ejectment, Id. (Id.) 556 See Justices' Court, 1. FOREIGN COURTS- Johns. 1. See Insurance, 2, 21, 22. FOREIGN LAWS Johns. 1. The lex loci contractus is not to govern as to the mode of enforcing a contract. Lodge r. Phelps, (139) 275 FOREIGN LAWS Johns. 2. A residing in the State of Massachusetts, and own- ing land in the State of New York, entered into a contract in Massachusetts with B, an inhabitant of New York, for the sale of the lands to him. B gave to A a bond for the consideration money, payable in four years, and also f our prommissory notes, pay- able in one, two, three and four years, for the in- terest on the bond, at the rate of six and a half per cent., and A executed a bond to B conditioned to execute a conveyance to him for the land, on the payment of the bond and notes. In an action brought in this State by A against B on the notes, who pleaded usury, it was held that the law of Mass- achusetts was to govern, and the notes were usu- rious. Van Scnatk v. Edwards, (335) 535 FORFEITURE Col. and Cai. 1. The act entitled an act further to amend an act entitled an ant for the speedy sale of the confiscated and forfeited estates within this State, &c., is re- trospective and affects prior titles. (84, 89) 52, 03 2. The State can acquire seisin or possession of lands for breach of condition by matter of record only. (288) 148 COL., & COL. & CAI., & J.'e CAS. 1, 2, 3. GENERAL INDEX. 3. Where an entry is necessary on the part of a common person, an office is necessary on the part of the State. (Ib.) 148 4. Where entry and action are necessary to a common person, an office and sci . fa. are necessary to the state. (Ib.) 1*8 FORFEITURE Johns. 1. See Attainder. FORFEITURE Johns. 3. 1. The American Revolution worked no forfeit- ure of previously vested rights in land. Jackson, ex dem. Gansevoort, et at. v. Lunn, (109) 636 2. Where a British subject died seized of lands in this State, in 1752, leaving daughters in England who married British subjects, and neither they nor their wives were American citizens, it was held that the husbands of the heiresses might be joined in the demise with their wives, in order to maintain an action of ejectment, and that even if the marriages were subsequent to the American Revolution, such marriage with aliens would not impair the rights of the wives, nor prevent the full enjoyment of the property, according to the laws of the marriage state; especially after the provision contained in the 9th article of the Treaty of Amity and Com- merce with Great Britain, of the 9th November, 1794. Id. (Ib.) 636 FORGERY Johns. 2. Forging the following order: "Sir, the bearer, Mr. Richardson, being our particular friend, having occasion to proceed from New York to Philadel- phia, we have requested him to call on you, desiring you to accept his draft on us, on demand, for glo. Your compliance will much oblige, Sir, your hum- ble servants, Gibbs & Channing, is not forging an order for the payment of money, within the stat- ute. The People v. Thompson, (342) 537 But see, by a subsequent statute (24 sess., ch. 54), by which it is delared to be forgery. FRAUD Johns. 1. 1. The possession of an insolvent after a bonaflde assignment of all his property, for the benefit of all his creditors, is not fraudulent, when continued at the request of the assignees and for their benefit. Vredenbergh v. White and Stout, (156) 281 2. Courts of law and equity have a concurrent jurisdiction in matters of fraud ; and fraud may be set up as a defence to a suit at law brought by a merchant against his factor for the amount of .goods sold. Le Guen v. Gouvemeur & Kemble, (In error) (436) 381 FRAUDS, STATUTE OF Johns. 2. Where A directed B his servant to enter a certain meadow which he said belonged to him, but which, in fact, belonged to C, and promised to save B harm- less. &c., the promise was held to be an original un- dertaking, and not necessary to be in writing. Attaire v. Ouland, (52) 435 GIFT Johns. 1. A parol gift of land creates only a tenancy at will. Jackson, ex dem. Van Alen, v. Rogers, (33) 333 GRANT Johns. 3. A tract of land was granted, by letters patent, to A in 1735, which was surveyed and laid out into lots. In 1736 B executed leases for several lots to different persons, for lives, reserving rent, in which he asserted his claim to the whole tract, and exer- cised various acts of ownership, until his death, in 1752, and his heirs also gave leases of some of the lots, in 1767, and his title and that of his heirs con- tinued to be acknowledged by the tenants, and re- mained undisputed, until 1783. In an action of ejectment brought by the heirs of B against C, who had been in possession since 1772, it was held that a grant from the original patentees to B was to be presumed ; that entry by him into part, with a claim to the whole, was to be considered as an entry into the whole ; and that the entry of C was in subordi- nation to the title of B. Jackson, ex dem. Gamevooj-t, et al. v.Lunn, (109) 636 COL., & COL. & CAI., & J.'s CAS. 1, 2, 3. GUARANTY-Johns. 2. 1. Where A by writing, for a valuable considera- tion, guarantied the payment of a sum of money from B to C and B on demand refused to pay at the time, and C gave notice of the failure of payment to A and demanded the amount of him, it was held that the demand of payment of B and refusal by him, and notice thereof to A, were sufficient to en- title C to recover against A on his guaranty, with- out a previous suit against B. Bank of New York v. Livingston, (409) 5O9 2. Where A gave a note to B for stock, deliver- able on the 1st May, 1792, and C having guarantied the performance of the contract, compounded with B in March, and took up the note, and afterwards brought his action against A for the amount, it was held that C had a right to settle with B and take up the note before it was due, and that A was bound to pay him the amount of the stock, accord- ing to its value, on 1st May, 1792. Armstrong & Barnwall v. Gilchrist, (in error), (424) 564 GUARDIAN Johns. 3. In an action of debt on a bond, against the surety for two guardians, appointed by the Court of Chan- cery, conditioned for the faithful performance of their trusts, where one of the guardians died, it was held that the trusts survived, and that the surety was responsible for the acts of the surviving guard- ian, the bond being co-extensive with the trust. The People v. Byron, (53) 615 HABEAS CORPUS Col. and Cai. 1. Whenever right or justice require it, a suit re- moved by liabeas corpus may, to certain intents, be made to relate to the suit below, but not to it as the same suit technically continued. (39, 45) 4O, 8O 2. Plaintiff cannot be non proved for not declaring in the court above, but defendant is not bound to accept a declaration after two terms elapsed. (43,49) 41,81 HABEAS CORPUS Johns. 1. 1. Where a cause is removed by a habeas corpus from an inferior court, the plaintiff need not pro- ceed until the bail is put in, and if he does, and a procedento be awarded for want of bail, no costs will be allowed the plaintiff. Murray v. Smith, (105) 259 2. A habeas corpus to bring up a person, stated to be a soldier enlisted in the army of the United States, was refused. Case of Husted, a soldier, (136) 272 HOMINE REPLEGIANDO Johns. 1. In an action of debt on a recognizance, given in action de homine replegiando, that the plaintiff who sued out the writ of replevin, " should prove his liberty," &c., and personally appear in court and prosecute his suit to effect, the plaintiff suffered a judgment of nonsuit, and then surrendered him- self to the defendant, who accepted him, and the bail paid the costs of suit; and it was held, that sub- mitting to a nonsuit was not prosecuting the suit to effect : but the recognizance was forfeited, and that the acceptance of the plaintiff by the defend- ant, did not discharge the defendant's right of ac- tion on the recognizance. Covenhoven v. Seaman et al., (23) 227 HOOSICK PATENT Johns. 3. The boundaries of Hoosick Patent are to be taken according to the survey and map made for the par- tition thereof, in 1754. Jackson, ex dem. Gi/ord, v. Sherwood, (37) 430 IMPARLANCE Johns. 1. Where there are several actions on one policy of insurance, the court will grant imparlances in all but one, until the plaintiff consents to enter into the consolidation rule, which is the same as the English rule. Clason and Stanley v. Church, (29) 229 IMPROVEMENTS Col. and Cai. Claims for the value of improvements under the act granting relief to certain persons claiming titles to lands in the counties of Cayuga and Onondaga, depend on the report of the circuit judge. (370) 169 76S GENERAL INDEX. INDICTMENT-Johns. 2. 1. Where a person had been convicted, on an in- dictment for an assault and battery, and the Attor- ney-General moved for judgment, but showed no circumstances attending the offense, by which the court could judge of the degree of punishment which ought to be inflicted, a mere nominal fine was imposed. The People v. Cochran, (73) 443 2. The Court of General Sessions of the Peace has power to discharge a jury, without the consent of the prisoner, on an indictment for a misdemeanor. The People v. Denton, (275) 513 3. Where a jury could not agree on a verdict, after being out all night and part of a day, and the Court of Sessions discharged them, without the con- sent of the party, the discharge was held to be proper, and the prisoner was again arraigned on the indictment, for the same offense. Id. (Ib.) 513 4. A and B were indicted for a conspiracy to de- fraud C. B was acquitted, and the jury being un- able to agree on a verdict whether A was guilty or not, the court, against the consent of A, ordered a juror to be withdrawn, and the jury discharged. It was held that the court may, in their discretion, in a criminal case, discharge a jury who are unable to agree on a verdict, against the consent of the prisoner, who may be brought to trial a second time for the same offense. The People v. Olcott, (301) 523 INDICTMENT Johns. 3. 1. Where an indictment was found at the general sessions of the peace of the county in which the de- fendant was convicted, at the Oyer and Terminer, and the indictment was removed into this court, with a caption, stating that the grand jury were sworn and charged, omitting the words " then and there," on motion in arrest of judgment, the omis- sion of those words was held fatal, and the judg- ment arrested. The, People v.Guernsey, (265) 691 2. In an indictment for forging a bill of exchange, or bank bill, it is not necessary to insert the marks, letters or figures used in the margin of the bill, for ornament, or the more easy detection of forgeries, as such marks or cyphers form no part of the bill. The People v. Franklin, (399) 703 INFANT Col. and Cai. A promissory note made by an infant, and taken by plaintiff in course of business, cannot be enforced against the infant, although he was carrying on trade at the time as an adult. (508) 2O8 INFANT Johns. 1. 1. Though an infant, at the time of executing a bond, fraudulently alleged that he was of full age, yet the bond was held to be void at law. Conroe v. Birdsall, (127) 268 2. Whether an infant can be disseised, and is then bound to bring his action within ten years after coming of age? Oiurre. Jackson, ex dem. Rensselaer, v. WlMlnck, (213) 301 INJUNCTION Johns. 2. See Chancery, 1, 2. INQUEST Col. and Cai. 1. If a cause is called on in its order on the day- docket, and an inquest taken the court will not set it aside on an affidavit of merits. (Iffi) 118 2. But the said affidavit is sufficient in all other cases. (342) 161 3. When the court will set an inquest aside. (414, 419, 424) 181, 183, 184 4. Inquest before the sheriff set aside, because a bystander was allowed to mix and converse with the jury. (441) 189 5. An affidavit to set aside an inquest taken at nisi prius must state that the defendant has a de- fense, as advised by counsel. (449) 192 6. At nisi prlus when an inquest is about to be taken, counsel must, when required, state whether they have a defense or not. (455) 193 INQUIRY, NOTICE OF EXECUTING WRIT OF- Col. and Cai. Notice of executing writ of inquiry may be given at any time after default entered, but the writ must not be executed before interlocutory judgment entered. (374) 17O INQUISITION-Johns. 3. An inquest of office is to inform the conscience of the court ; and an inquisition will not be set aside, on the ground of the admission of improper evi- dence, unless it appears that injustice has been done. Ward v. Haight, (80) 625 INSOLVENT DEBTOR-Johns. 1. See Debtors, insolvent. INSOLVENT DEBTOR-Johns. 3. 1. Where a judgment of non pros, on a certiorarf from a justice's court, was obtained in October term, and the plaintiff in error was afterwards, on the 7th November, discharged, under the Insolvent Act, it was held, that the judgment for costs, in October Term, constituted a debt liquidated, or capable of liquidation, at that time, and was dis- charged by the certificate. Thomas v. Striker, (90) 628 2. Where an insolvent debtor omitted to insert, in the inventory of debts due to him, a claim on the United States, for services performed during the war, for which claim he received a compensation after his discharge, it was held that the conceal- ment was fraudulent, and his discharge void. Duncan v. Duboys, (125) 641 INSURANCE Col. and Cai. Where insurance is made on part of a cargo war- ranted free from contraband, and part of the car- go uninsured was contraband, to the knowledge of the insurer, and the vessel being condemned on account of the contraband goods, the plaintiff shall recover as for a total loss. (309) 157 INSURANCE Johns. 1. 1. In an action on a policy of insurance from New York to the Havanna, on all lawful goods, it was held, that articles contraband of war were law- ful goods, within the meaning of the policy ; that goods not prohibited by the laws of the country to which the vessel belongs, are lawful. Seton, Maitland & Co. v. Low. (1) 21 2. Where goods were wan-anted American or neutral property, it was held, that the sentence of the admiralty court of a belligerent, condemning the goods as lawful prize to the captors, was con- clusive evidence as to the character of the property and of a breach of the warranty. Liuttow <& Ludlow v. Dale, (16) 224 But see contra, the case of Vandenheuvel v. The United Insurance Company, reversed in the Court of Errors, February, 1802. 3. In an action on an open policy of insurance on goods, at and from Havanna to New York, the in- sured recovered for a total loss ; and it was held, that the plaintiffs were entitled to recover the in- voice price of the goods, without deducting the drawback allowed on exportation. Oahn & Mumford v. Broome, (120) 266 4. A policy of insurance against the risk from illicit trade is valid,though it would be void if it in- tended to protect a trade prohibited qy our laws. Gardner v. Smith, (141) 276 5. A policy on goods "until 24 hours after they are landed, continues until 24 hours after all the goods are landed. Id. (Ib.) 276 6. After an abandonment, the consignee of the goods insured becomes the agent of the insurer, and his acts, if done in good faith, are at the risk and for the benefit of the insurer. Id. (Ib.) 276 Id. (Ib.) 373 7. Where the goods saved do not amount to half the value of the goods insured, the insured may abandon as for a total loss. Id. (Ib.) 373 8. The insured may abandon, on receiving in- formation of the capture of a vessel ; and though it should appear, afterwards that the vessel was re- stored at the time of the abandonment, but un- known to the insured, yet the abandonment will be valid. Mumford v. Church, (147) 278 S. P., Slocum & Burling v. The United Insurance Company, (151) 28O 9. An abandonment, when once properly made, is definitive, and fixes the rights of the parties. Id. (Ib.) 280 But see Church v. Bedient, and Peyton v. Hallett, 1 Caines' Cases in Error, p. 21-43, contra. 10. Goods were insured on board of a vessel on a voyage " from Wilmington, N. C., to Falmouth,and COL. & COL. & CAI., & J.'s CAS. 1, 2, 3 GENERAL INDEX. xxi at and from thence to a port of discharge in Great Britain." The vessel sailed from Wilmington with a crew consisting of ten persons, and with the avowed intention of touching at the Hook, off New York, to procure seamen ; and she foundered in a gale of wind before she arrived at the dividing point between a direct course to Falmouth and a direct course to New York : It was held that a ves- sel must not only be sea-worthy, but must be duly equipped and manned with a competent crew, for the voyage insured; and that in this case the inten- tion to stop at New York for seamen was sufficient evidence, either that the crew was not competent or that they were not engaged for the voyage in- sured. Sttva v. Low. (18*) 291 11. Whether the voyage on which the vessel ac- tually sailed, in the above case, was distinct or dif- ferent from the voyage insured? Qucere. Id. (Ib.) 291 12. Where the policy of insurance contains the usual warranty, that corn, &c., shall be free from average under 7 per cent, unless general, the in- sured can only recover for a general average, or for an actual, as distinguished from a technical loss. Le Roil, Bayard & 3T .Brers v. Gouver- neiir, (236) 3O6 13. A ship was insured from New York to the East Indies, and was compelled in consequence of a storm to put into Martinque for repairs, and the cargo, consisting chiefly of claret and porter, was unladen, and though undamaged, it was sold, be- cause from the heat of the climate, and its exposure on the beach, it was in great danger of spoiling ; and the voyage was broken up. The vessel might have been repaired for less than half its value, so as to have been competent to perform the voyage, and was so repaired as to return to New York. It was held, that the loss of the voyage, in conse- quence of the necessity of selling the outward cargo at Martinque, did not entitle the insured to recover for a total loss, on the policy of the ship. Gold v. Shaw, (363) 33O 14. Where a policy becomes void by a failure of the warranty, the insured is entitled to a return of the premium, if there be no fraud. Delavigne v. The United Insurance Company, (310) 335 15. The insured are not bound to abandon in case of an accident, but may wait the final event, and recover accordingly, for a total or a partial loss, as the case may be. Earl v.Shaw, (313) 3O1 16. It is sufficient if there be a loss continuing to the time when the abandonment is made. Id. (Ib.) 301 17. If a policy be assigned by the insured to a third person, before the vessel sails on her voyage, it is not necessary that the insurer should have no- tice of the assignment. Id. (Ib.) 301 18. Where a vessel stayed in port six months after the date of the policy, it was held not to be a devia- tion, it not being fraudulent or varying the risk. Id. (Ib.) 301 19. The date of a policy is not conclusive evidence of the time of its actual subscription. Id. (Ib.) 301 30. Where a policy contains a written clause, "against all risks," it was held to protect the in- sured against every loss happening during the voy- age, except such as might arise from his own acts. Goixv.Knox, (337) 345 21. If a vessel is described in a policy of insurance as an "American ship," it is an implied warranty that she is American. Grrixv. Low, (341) 346 33. A sentence of a foreign court of admiralty, condemning a vessel as good and lawful prize.with- out assigning any reason, is to be considered as pro- ceeding on the ground of its being enemy's pro- perty. Id. (Ib.) 346 23. Such a sentence is conclusive evidence of a breach of warranty of neutral property. Id. (Ib.) 346 But see contra, Vandenheuvel v. The United Insurance Company, in the Court of Error, post. 34. Quaere, if the negligence of the assured, in not having proper documents on board, or having con- tradictory papers, in consequence of which the ship is taken out of her course, amounts to a deviation? Queer e. Id. (Ib.) 346 25. A warranty of neutral property is to be con- COL., & COL. & CAT., & J.'s CAS. 1, 2, 3. strued in reference to the belligerent parties, and to the law of nations. Duguet v. Rhtnelander, et al., (360) 353 36. A Frenchman who migrates to the United States, flagrante beUo, and becomes naturalized, though he thereby acquires the privilege of a citi- zen of the United States, is still to be considered a French subject, in regard to France and Great Bri- tain who are at war. Id. (Hi.) 353 See contra, S. C., in the Court of Error, where this judgment was reversed, in 1801. 37. Goods were insured from New York to two ports in the island of Cuba, and "warranted Ameri- can property proof to be made in New York." The goods belonged to two native American merchants, in New York, and a native American who resided at the Havanna, in quality of a counsel of the United States, and who were joint owners of the ship, and partners in the adventure. The vessel and cargo were captured by the British, and the goods condemned as Spanish property. In an ac- tion on the policy, it was held that there was a breach of the warranty ; that a consul of a neutral State, residing in a belligerent country, and carrying on trade as a merchant, is to be considered as domi- ciled in that country ; and if connected with neutral merchants as a partner in trade, his property will be subject to capture and condemnation by a bel- ligerent, as enemy's property. Arnold & Ramsay v. The United In- surance Company, (363) 354 38. Where a ship is abandoned to the insurer, who accepts the abandonment, and the voyage is, after- . wards, performed, and freight earned, the insurer is entitled to the freight earned subsequent to the time of abandonment, or pro rata. The United Insurance Company v. Lenox, ' (337) 345 29. If a vessel is represented as out " about nine weeks," when she, in fact, was out ten weeks and four days, it is not a material misrepresentation, provided that period be within the usual time of the voyage ; and whether it be so or not, is a fact for a jury to determine. Mackey v. Rhinelander, (408) 37O 30. An agent of the insured, who applies to the broker to get the insurance effected, is a competent witness. Id. (Ib.) 37O See Imparlance. INSURANCE- Johns. 2. 1. Goods were insured from New York to Havre, and a separate policy was made on the profits. The vessel was captured and carried into London, and the goods libeled there. Five eighths of the goods were restored to the owner, who received and ap- propriated them to his own use. The insured aban- doned to the insurers on the policy on the profits as for a total loss. The insured claimed and received an average loss of three eighths only on the goods. It was held that the insured were entitled only to a partial loss of three eighths on the profits. Loomis & Tttlinghast r. Shaiv, (36) 43O 3. In an action on a policy of insurance on all lawful goods, &c., against all risks, it was held that the insurance covered all goods lawful to be ex- ported from the United States, though contraband of war, and owned by a subject of one of the bellig- erents. Skidmore v. Desdottt/, (77) 442 3. Articles contraband of war are "lawful goods" within the meaning of those words in a policy of insurance. Goods not prohibited by the laws of the country to which the vessel belongs, are lawful goods, and the insured are not bound to disclose to the insurer that the goods are contraband of war. Juhelv. Rhinelander, (120) 459 S. C. affirmed in the Court of Errors, in 1802. (487) 587 4. In' an action on a policy of insurance, contain- ing a warranty of American property, it was held that the sentence of a foreign court of admiralty, condemning the property as lawful prize, is not conclusive evidence of the character of the prop- erty, and of the breach of warranty. Vandenheur-el v. The United Insurant* Company, (in error), (452) 575 5. C. In the Supreme Court, (127) 168 5. If a vessel be described in a policy of insur- ance as an American ship, it is a warranty that she is American. Murray v. The United Imurance Com- pany, (168) 476 6. Where an American vessel was transferred to A in trust, to secure a debt due to B, who was a 7G7 GENERAL INDEX. British subject, it was held that B being: the cestui qua trust of the profits of the vessel, and a subject of one of the belligerents, the vessel ceased to be neutral ; and the fact of the transfer in trust, not being communicated to the insurers, the policy was void, and the insured entitled only to a return of premium. Murray v. U. S. Ins. Co., (168) 476 7. Where a policy of insurance contained the fol- lowing clause : "It is also agreed that the property be warranted by the assured, free from any charge, damage, or loss, which may arise in consequence of seizure or detention, for or on account of any illicit or prohibited trade, or trade in articles contraband of war;" and the vessel and cargo having been captured, part of the cargo, consisting of tin in blocks and plates, was condemned as contraband of war, it was held that to constitute a breach of the warranty, there must be an illicit or prohibited trade in fact existing, and it is not sufficient that there has been a condemnation under pretext of such a trade. Laing v. The United Insurance Company (in error), (487) 587 S. C. In the Supreme Court, (174) 478 S. P. Johnston & Weirv. Ludlow (in error), (481) 585 8. The sentence of a foreign court of admiralty is only prima facie evidence of any fact, and will have no effect, if sufficient appears in the sentence to re- but the presumption of the .existence of such fact. Id. (585) 9. A vessel was insured from New York to Am- sterdam, and at the time of her sailing from New York, it was not known that the Texel was block- aded by the British. The master, during 1 the voy- age, put into Cuxhaven, and was there informed that Amsterdam was blockaded: but supposing that he should not be captured for the first attempt to enter, sailed from Cuxhaven with the intention of entering Amsterdam, and on his way the vessel was captured by a British cruiser, carried into Eng- land, and condemned for attempting to go to a blockaded port. It was held, that sailing for a port understood to be blockaded, with intention to enter, was not a breach of neutrality so as to affect the policy of insurance. Vos & Graves v. The United Insurance Company (in error), (469) 581 3. C. In the Supreme Court, (180) 480 10. A vessel belonging to A. who was a natural-born citizen of the United States, was insured, by a policy dated the 1st November, 1796, from New York to London, and was warranted American property. Before the vessel actually sailed on the voyage in- sured, viz., on the 27th April, 1797, A sold and trans- ferred the vessel to B, a native of Great Britain, who had emigrated to New York, and become a naturalized citizen of the United States, on the 6th April, 1797. The vessel was captured by the French and condemned as good prize. It was held, in an action on the policy, that B was to be considered as having emigrated flagrante bctto, and a British sub- ject, so as to justify the condemnation ; and that A having, by his own act, before the commencement of the risk, changed the property from neutral to belligerent, there was a breach of the warranty, and he could not recover on the policy. Jackson v. The New York Insurance Company, (191) 484 But see Duyuet v. Rhinelander et al. (in error) contra, (476) 583 11. It is an implied warranty in every contract of insurance, whether on a vessel or goods, that the vessel is seaworthy, and competent to perform the voyage ; and it makes no difference, though the ves- sel was surveyed before she sailed, and pronounced . by carpenters to be competent, if she proves, in the course of the voyage, not to have been seaworthy. Warren v. The United Insurance Company, (231) 498 12. An adjustment of a loss indorsed on a policy of insurance, and signed by the insurer, is not con- clusive, and the party may show that it was made on the misrepresentation of the insured ; and whether such misrepresentation proceeded from mistake or design makes no difference. Fauffter v. HaUett, (233) 499 13. A policy of insurance contained a memoran- dum "that salt, &c., and all articles that are perish- able in their own nature, are warranted by the as- sured, free from average unless general, &c., and sugar, &c., skins, hides, and tobacco are warranted free from average, under seven per cent, unless general." A quantity of deer skins, part of the cargo, were damaged, by which a loss of ten per 768 cent, was occasioned on the cargo, it was held that the deer skins were not comprehended under the general words of the memorandum, as to arti- cles perishable in their own nature, but under the clause relative to skins and hides, and that the in- sured were, therefore, entitled to recover. Bakewell v. The United Insurance Company. (246) 503 14. Where a vessel was insured, excepting against French risks, and was captured by a French priva- teer, and after being detained four days, was re- captured by a British frigate, and condemned as French property ; it was held that the insured couid not recover. Roget v. Thurston, (248) 504 15. An insurance on the vessel will not cover a bottomry interest, unless it is expressly mentioned in the policy. Robertson & Brown v. The United In- surance Company, (250) 5O5 16. A clause of sale m a bottomry bond does not destroy its character or operation. (IT).) 505 17. A capture by a friend, or the carrying into port of a neutral, by a belligerent for adjudication, as contradistinguished from a capture by an enemy, is equally a ground of abandonment by the insured. Murray et al. v. The United Insur- ance Company, (263) 509 18 Such a capture is prima facie evidence of a total loss, and the insured may abandon imme- diately on receiving intelligence thereof; and though the vessel may have been restored at the time of the abandonment, yet if the insured had no knowledge of the fact at the time, it will not affect his right to recover ; but a knowledge of the resto- ration may be persumed from the lapse of time and distance between places, in reference to the ordi- nary course of intelligence. Id. (lb.) 509 19. Where dried fish were enumerated among the articles in the memorandum to a policy of insur- ance, as free from average unless general, as also "all other articles perishable in their own nature," it was held that pickled fish were not included within the memorandum, and that the plaintiff might recover for an average loss on them. Baiter v. Ludlmv, (289) 519 20. Insurance on goods at and from New York to Baraoa, with liberty to touch at one or two ports on the north side of Cuba ; the adventure to con- tinue until the goods are safely landed at Baraoa, and one or two ports on the north side of Cuba. The vessel arrived at Bara?oa the 26th June, and staid there until the 30th October, 1799, without being able to sell the cargo, except a small part, and without selling any of the goods of the insured; and the vessel was forcibly entered by pirates, who carried away $4,780 in money, and a great quantity of goods. The vessel thereupon set sail for the Havana, but was compelled by stress of weather and want of provisions, to go to New Providence, where she arrived on the 15th December, where the goods remaining were sold for $3,701 (the invoice amount of the cargo being $16,500), and the voyage was broken up, and an abandonment made, as for a total loss. It was held that the stay at Baracoa did not amount to a deviation ; that the breaking bulk there did not put an end to the voyage at that place ; and that the breaking up of the voyage at New Providence was justifiable, and a sufficient ground of abandonment, so as to entitle the plaint- iff to recover for a total loss. Gilfert v. Hallett A Bowne, (296) 521 21. A, the master of a vessel, directed B, as his agent, to get his commissions, as master, insured ; and C, the broker, had the policy effected in the name of B on the commissions of the master, who was named in the policy, and the agency of B was known to the broker. A total loss having been re- | covered on the policy, by the broker, A brought an i action against him, to recover the amount of the I money received ; and it was held that C had no right j to retain it for a debt due to him from B, the agent. Foster v.Hoyt A Tom, (327) 533 22. A policy of insurance was effected on the cargo of a ship from Calcutta to Baltimore, by A as the j agent of B, and for his account. The policy was in I the name of A generally, for $25,000, as interest j might appear. The cargo belonged to B and four , other persons, and was purchased with the proceeds i of the outward cargo. B carried on trade for him- , self, and was unconnected in trade with the other persons, who knew nothing of the insurance. The proportion of the return cargo belonging to B in fact amounted only to about 813,000. B brought an COL., & COL. & CAI., & J's. CAS. 1, 2, 3. GENEKAL INDEX. .action against the insurers for a return of pre- mium, for the difference between the sum sub- .scribed and the amount of his interest. It was held that B and the four other persons were not part- ners, and that B was entitled to a return of pre- mium for the amount of his interest overvalued in the policy. Holmes v. The United Insurance Company, (329) 533 23. A having- chartered a ship to bring a cargo from the Spanish Main to New York, effected a policy of insurance on the profits, valued at $12,000, no other proof of interest to be required but the policy ; and if the goods did not arrive, the insured was to recover for a total loss : and the goods were warranted free from average, and without benefit of ^salvage to the insurer. The vessel finding no cargo .at the Spanish Main, returned to New York, in ballast, without any goods; and A brought an action against the insurer for a return of premium. It was held that the insurer, having run the risks enumerated in the policy, and the ship returned in ;saf ety, A was not entitled to a return of the pre- mium. Juhel & Delonguamere v. Church, (333) 534 24. Where a ship is abandoned to the insurer, who .accepts the abandonment, and the voyage is after- wards performed, and freight earned, the insurer is entitled to the freight earned after the event which was the cause of the abandonment, or pro rata. United Insurance Company v. Lenox, (443) 571 25. Where a subject of a belligerent State emi- grates to this country, flagrante hello, and becomes naturalized, such naturalization will support a war- ranty of neutral property in a policy ot insurance ; and the insured need not disclose to the insurer the time of his emigration. Duguet v. Rhinelander et al (in error), (476) 583 26. In an action on a policy of insurance, the words "condemned as lawful prize," in the sentence -of a court of admiralty, afford no judicial infer- ence that the vessel was enemy's property; and .such sentences are not conclusive evidence of the fact. Goix v. Low (in error), (480) 584 27. A subject of Great Britain, domiciled in New York, and engaged in trade with the enemy of Great Britain, is considered as a citizen of the United States, in regard to such trade, which is not within the clause in the policy of insurance, by which the property is warranted by the assured, free from any charge, &c., in consequence of a .seizure or detention for or on account of any illicit or prohibited trade. Johnson & Weir v. Ludlow (in error), (481) 585 28. In an action on a policy of insurance, a sen- tence of a foreign court of admiralty is only prima facie evidence of any fact, and will have no effect, if sufficient appears in the sentence to rebut the presumption of the existence of such fact. Id. (Ib.) 585 39. To constitute a breach of the warranty by the assured against seizure or detention on account of illicit trade, &c., there must be an illicit or pro- hibited trade, in fact, existing. It is not suflicient that there has been a condemnation, under pretext of such trade. Id. (Ib.) 585 INSURANCE Johns. 3. 1. A policy of insurance was effected on goods, from Philadelphia to Hamburg, dated the 29th May, 1798, at seventeen and one half per cent., " to return fifteen per cent, in case an insurance had been effected in Europe." It also contained the following printed clause : " Provided, that if the assured shall have made any other insurance upon the premises, prior in date to this policy, then the insurers shall be answerable only for so much as the amount of such prior insurance may be defi- cient, &c., and shall return the premium on so much of the sum assured as they shall, by such prior assurance, be exonerated from ; and in case of any insurance upon the premises, subsequent in date to this policy, the insurer shall be answerable for the full sum subscribed, &c., and be entitled to retain the premium, in the same manner as if no such subsequent insurance had been made." In- surance was also effected on the same goods at Hamburg, the 19th June, 1798. It was held, that according to the true construction of the written and printed clauses, the insured could not claim a return of premium on account of the insurance at -COL., & COL. & CAI., & J's CAS. 1, 2, 3. N Hamburg ; and that parol evidence to show that it was the understanding and intention of the par- ties that the policy was to be void in case of a double insurance, was inadmissible. The New York Insurance Company v. Thomas, (1) 597 2. The words "at" and "from," in a policy on goods, means, from the time the goods are laden on board the vessel. Patrick v. Ludlow, (10) 6OO 3. Insurance from Surinam to New York. The master of the vessel being informed that French privateers were cruising in the windward passage, and in the usual route from Surinam, determined to take the leeward passage, and touched at Deme- rara to take the protection of a British convoy then about to sail; but a few hours after anchoring there, was driven to sea in a gale of wind, and after- wards, continued her voyage, without convoy, and was captured bv a French privateer. This was held not to be a deviation, the master having acted bona fide, and with the sole view to avoid danger, and to seek the safest course to New York. Id. (Ib.) 6OO 4. Insurance on horses from Liverpool to New York, "against all risks, including the risk of death, from any cause whatever, until they shall be safely landed." About three days before the ar- rival of the vessel at New York, she met with a vio- lent gale of wind and heavy sea, which caused her to roll very much, by which means one of the horses was thrown down and bruised, in conse- quence of which he refused to eat, and died in three days after he was landed in New York. It was held that the horse received his death wound by the perils of the sea, and that the plaintiff was entitled to recover the full value of the horse. Coit & Woolsey v. Smith, (16) 6O 5. Insurance on a vessel from New York to Cura- oa. The vessel met with heavy gales, in conse- quence of which she sprung a leak and was obliged to have her mainmast cut away ; and after much difficulty arrived at Curacoa, but could not be re- paired for want of materials, and, if repaired, would not have been worth the expense ; it being admitted that she received her death-wound during the voyage ; it was held, that the insured were en- titled to recover for a total loss. Stagg Hr.in error, (311) 708 2. A being indebted to B by a promissory note, in the sum of $1,491, as collateral security for the pay- ment, indorsed to B another note made by C to A or order, for $1,551, and at the same time delivered to B a mortgage executed by C to A, to secure the payment of the note so indorsed, but made no as- signment of the mortgage in writing. B filed a bill against C for the sale of the mortgaged premises, to pay his note : It was held, that by the indorse- ment of the note, and delivery of the mortgage, B had an equitable (if not a legal) interest in the mortgage ; but that A, if he had not the legal estate, was interested in the subject, and ought to have been made a party, as he was entitled to recover back the mortgage on the payment of the $1,491 ; and the decree of the Court of Chancery, ordering a sale, &c., was reversed, with liberty to B to have his bill dismissed, or to add proper parties, on pay- ment of the costs in the court below. Johnson v. Hart, (323) 711 MOTION Col. and Cai. See arrest of judgment, 5. New trial, 4. Real actions, 5. 1. Upon a motion where there is no opposition the court will never examine further than to be satisfied that there has been regular service of the notice. (131, 132) 64, 1O4 2. A motion to set aside a report of the referees on the ground of irregularity is a nonenumerated motion. (159) 111 3. But if the motion is grounded on merits, it is an enumerated motion, and in this case irregularity may also be insisted on. (7b.) Ill 4. If the opposite party does not appear to op- pose, all irregularities are waived. (423) 184 5. A motion to set aside a verdict for irregularity is a nonenumerated motion. (425) 185 6. The court will refuse to grant a motion even where there is no opposition, if the affidavit of service of notice is suflBcient. (442) 19O NEW TRIAL-Col. and Cai. 1. Notice of motion for a new trial accompanied by a judge's certificate is a substitute for the former practice of a rule to show cause. If the party neg- lects to obtain a certificate and judgment is conse- quently duly entered up, the court will not then near an argument to set the verdict aside. (90, 94) 53, 93 2. On motion for a new trial the court will not compel the defendant to bring the amount of the verdict into court. (152, 331) 1O9, 158 3. The court will never grant a new trial on ac- count of newly discovered testimony when it goes merely to contradict former evidence. (162) 112 4. A motion for a new trial on the ground of newly discovered testimony is an enumerated mo- tion. (358) 165 5. When the court will grant a new trial on the ground of newly discovered testimony to the same fact. (379) 172 6. When on an application for a new trial on the ground of newly discovered testimony, the affidavit states the new witness to be a man of good char- acter, counter affidavits to this point are admissible. (409) 180 NEW TRIAL-Johns. 1. 1. Where the judge charged the jury that in his opinion, the weight of evidence was in favor of the defendant, and the jury found a verdict accord- ingly, a new trial for the misdirection of the judge was refused, the court being satisfied that the plaint- iff ought not to recover. Goodrich v. Walker, (250) 315 2. In an action of debt for a penalty in a special agreement, though the court were of opinion that the plaintiff was entitled to a verdict, yet, as no damages were shown, nor any rule by which the jury could ascertain the damages, they refused to set aside a nonsuit, and grant a new trial, merely to give the plaintiff an opportunity to recover nomin- al damages. Brantingham v. Fay, (255) 317 3. Where a verdict is against the charge of the judge, and a new trial is granted, the costs are to abide the event of the suit. Fan Rensselaer v. Dole, (279) 325 774 4. Where the jury on a second trial find a verdict against the decision of the court, on a point of law, on which the new trial was granted, the court will grant a third trial. Silva v. Low, (338) 344 5. On an affidavit of newly discovered evidence, a new trial was granted on an issue out of chancery. Doe v. Roe, (402) 36"8 See Ejectment, 2. NEW TRIAL Johns. 2. Where a witness who has been regularly sub- poenaed by the defendant, was out of the way when the trial of the cause commenced, and did not appear in court until the testimony on both sides had closed, and the counsel for the defendant had proceeded to sum up the evidence to the jury, and he was then offered to be examined, but refused by the judge, and a verdict was found for the plaint- iff, it was held that the admission of the witness, in that stage of the trial, was altogether discretionary with the judge, who acted reasonably in refusing to admit him under the circumstances, and a new trial was refused. Alexander v. Byron, (318) 529 NEW TRIAL-Johns. 3. A new trial will not be granted on a mere techni- cal objection, as to the admission of a printed stat- ute book in evidence, when it appears that the printed statute was correct, and an exemplification of it, on a new trial, would be the same evidence. Duncan v. Diiboys, (125) 641 See Usury, 2. NEW YORK CORPORATION Johns. 2. See Venue, 2. NEW YORK Johns. 3. See Recorder of. NONPROS-Col. and Cai. Where an action is brought against two, and one is returned taken and the other non est, and the party taken rules the plaintiff to declare, the plaint- iff will be nonprossed unless he obtains time to de- clare until the other is brought in. (452) 192 NONSUIT-Col. and Cai. Rule for costs of a nonsuit against executors dis- charged because nonsuit arose from a clerical error. (66, 72) 47, 87 NONSUIT, JUDGMENT AS IN CASE OF Col. and Cai. See commission, 8. Real Actions, 3. Costs, 35. 1. Judgment as in case of nonsuit will be awarded where there has been a new trial granted and the plaintiff has neglected to carry the cause down to trial, (36, 39, 79, 42) 2. Upon the first default the plaintiff must be nonsuited or must stipulate to try the cause at the next circuit, unless he accounts for and excuses the default. But the defendant must make his applica- tion in the next term after default. (64,69,186,401) 47,87,119,178 3. Judgment as in case of nonsuit is never granted in replevin. (92, 96) 54, 94 4. Upon a stipulation to try the cause peremptorily in expectation of the return of a witness, it is a sufficient excuse that the witness is a sea-faring man. (147) 1O8 5. Misapprehension of a rule of practice, how far an excuse for not going to trial. (157) 111 6. Application for judgment as in case of nonsuit must be made at the term next after default. (187) 119 7. When upon an application for judgment as in case of nonsuit, it appears that the defendant is sentenced to State prison, the court will allow the plaintiff to discontinue without costs. (191) 12O 8. What shall or shall not be a sufficient excuse for not going to trial. (200, 210, 220, 232, 445, 345, 347, a58, 361, 371. 400, 469) 122, 125, 129, 131, 19O, 162, 165, 166, 169, 177, 197 9. How the defendant must proceed after stipula- tion bv the plaintiff. (213, 480) 126, 2O1 10. An affidavit to excuse the plaintiff's default on the ground of the early date of the issue, must show that the issues tried were older. (221) 131 11. What costs to be paid on an offer to stipulate. (345) 162 12. It is a sufficient excuse that the cause was not on the day-docket. (425) 185 COL., & COL. & CAI., &' J's. CAS. 1, 2, 3. GENERAL INDEX. xxix 13. On an application for judgment as in case of nonsuit, the affidavit must state where the venue is laid. (469) 197 NOTICE-Col. and Cai. 1. When notice of motion is given for a day in term subsequent to the first, the opposite party is deemed to waive his objection unless he appears and states it at the time. (76, 81, 148, 176) 5O, 9O, 108, 116 2. The affidavit supporting- the motion to refer such notice, must always account for the laches. (206) 134 3. And with sufficient excuse the notice may be for any day. (200) 124 4. What shall be an excuse. (456) 194 5. Notice of motion to refer must contain the names of the referees. (148) 1O8 6. Service of a notice by mail insufficient. (168) 114 7. Notice of motion must always be accompanied by the affidavit on which it is to be grounded. (190) 120 8. If the notice of motion and the affidavit are in- correctly entitled, it is fatal to the application. (260) 138 9. Aliter if notice is wrong and affidavit right. (185) 118 10. Notice of motion good without stating that it will be made at New York or Albany, the terms, &c., of the court being notorious. (367) 168 11. Where the reason of not noticing appears on record no affidavit in excuse need be made. (416) 183 12. If notice of trial is correct as to the date, but incorrect as to the day it is, notwithstanding gopd. (440) 189 13 . All formal objections to the notice of motion are waived by entering on the argument. (460) 195 14. Notice of motion must be signed by the at- torney in the cause, but when the attorney is em- barrassed and cannot be found, it may be signed by the counsel for him. (467) 197 15. Notice of bail implies notice of retainer. (Ib.) 197 16. What can be given in evidence under a notice of special matter. (487) 3O3 17. Parol evidence of the contents of a notice may be given when the party has neglected to keep a copy. (494) 2O5 NOTICE TO QUIT Johns. 1. A mere servant or bailiff, in possession of lands, is not entitled to a notice to quit. Jackson, ex dem. Fitzroy, et al., v. Sample, (231) 3O8 See Ejectment, 1. NOTICE TO QUIT Johns. 2. See Ejectment, 4. NOVEL ASSIGNMENT-Col. and Cai. See Pleading, 8. NUISANCE Johns. 1. Sae Court of Oyer and Terminer, 4. NUL TIEL RECORD-Col. and Cai. 1. When there are several pleas mil tiel record can njverbeoneof them. (35,41) 39,79 2. Rule to produce record is a common rule. (47, 52) 42, 82 PARDON-Johns. 3. A having been convicted of forgery, was sen- tenced to the State Prison for life. He was after- wards pardoned by the governor. The pardon contained a proviso that it was not to'be construed so as to relieve A from the legal disabilities arising from his conviction and sentence, &c., but only from the imprisonment. He was, afterwards, of- fered as a witness for the people, on a trial for an indictment, and admitted to testify, although ob- jected to as incompetent. It was held that the pro- viso in the pardon being incongruous, and repug- nant to the pardon itself, ought to be rejected, and that the witness was competent. The People v. Pease, (in error.) (333) 714 PARTITION Col. and Cai. 1. The rule to appear and answer is not a rule of course. (148) 1O8 2. On the motion for the rule the notice and affi- davit of service only are read and not the petition. (155) 110 OL., & COL. & CAI., & J's CAS. 1, 2, 3. 3. Form of the rule to be entered when the de- fendant does not appear. (198) 122 4. If in the petition a party is stated to be seised of a portion, the court will intend that it is in fee. (428) 185 5. Whether there is opposition or not, the notice and affidavit of service need only be read. (431) 186 PARTNERSHIP Johns. 1. 1. Where there is a special and limited partner- ship, and persons deal with it, knowing it to be such, they are bound by the terms of such copartnership, and cannot hold the parties beyond them. Ensign v. Wands, (171) 286 2. If one of two partners in trade purchase goods for both, and one of them dies, an action of amntm])- sit may be brought against the survivor, without taking notice of the partnership, or the death of the one and the survivorship of the other. Goelet v. ATInstry, (405) 369 PARTNERSHIP Johns. 2. 1. Where B and four other persons were owners of a cargo, in distinct proportions, and the cargo was sold in Calcutta, and the proceeds invested in a re- turn cargo, and B carried on trade for himself, and was wholly unconnected in trade with the others, it was held they were not partners. Holmes v. The United Insurance Company, (329) 533 2. A surviving partner may maintain a suit in his own name, for a debt incurred to the partnership, after the death of his copartner, and also for a debt contracted in the lifetime of the partner. Bernard v. Wilcox, (374) 548 PARTNERSHIP Johns. 3. 1. One partner cannot bind his copartners by seal. Clement v. Brush, (180) 661 2. Where one partner gave a specialty, which he signed with the name of the firm, for a simple con- tract debt of the firm, and the creditor afterwards executed a release of all demands against the other partner, on account of the partnership debt, it was held that giving the specialty was an extinguish- ment of the simple contract or partnership debt, and that the specialty, being the proper and sole debt of the partner executing it, was not affected by the release given to the other partner, as to the partnership debt. Id. (Ib.) 661 PATENT Johns. 2. A patent for certain lands was granted " to A, B and C for themselves and their associates, being a settlement of Friends on the west side of Seneca Lake, to have and to hold the same to A, B and C as tenants in common, and their associates." It was held that no legal estate vested, except in the three persons named in the patent, Jackson, ex dem. Potter, et al. v. Steson, (321) 53O PATENT Johns. 3. See Grant. PAYMENT-Col.. and Cai. A creditor may elect to apply a general payment by debtor, to any of the claims he has against him, (366) 168 PAYMENT Johns. 3. 1. A took a promissory note of B for a debt due from B and C as partners, after the partnership was dissolved, and gave a receipt for the note, when paid, to be in full of the debt. In an action against C on the original debt, it was held that the accep- ting the note was no payment of the precedent debt, and that C was liable. Herring v. Sanger, (71) 621 2. Where a note was made payable at the Bank of Albany, and a demand of payment was made of the maker, personally, in Albany, but not at the bank, and no objection made at the time, the demand was held sufficient. Id. (Ib.) 621 3. A note was lost or mislaid, and A the maker, having paid the amount to B the holder, took his bond of indemnity against the note, &c., and, after- wards, A having a demand against B for money, B refused to pay, without first deducting the amount of the note, to which A consented, and took the balance, and a receipt from B for the amount of the note as due, and afterwards brought an action against B on the bond of his indemnity. It was held that the second payment, being voluntary on the part of A and no f raud alleged on the part of B. 775 XXX GENERAL INDEX. no action could be maintained against him on the bond. Bazen v. Roget, (87) 627 PENALTY Johns. 3. A and B entered into a written agreement, by which A agreed to convey to B 700 acres of land to be appraised, in part payment for a farm, valued at $3,750, which B agreed to sell to A, and it was cove- nanted, that in case either party failed to fulfil the agreement, the party failing to perform, "should forfeit and pay to the party who should fulfil the agreement, the sum of 2,000, as damages." It was held, that the 2,000 was, according to the intention of the parties, as inferred from the whole agree- ment, to be considered as a penalty, and not as stip- ulated damages. Dennis v. Cummins, (297) 7O2 PILOTS-Col. and Cai. A branch pilot agreed to bring into port a wrecked vessel for a stipulated reward, the court held the contract to be illegal, (183) 118 PLEADING Col. and Cai. See Nul tiel record, 1. 1. To a plea of privilege by an attorney it is a good replication that for one year before he had ceased to practice as an attorney, (134) 1O4 2. It is sufficient to set forth a writing according- to its legal effect, (221) 128 3. In setting forth an indorsement made by one of a firm for the firm, it is sufficient to set it forth gen- erally as an indorsement by the firm, (227) 13O 4. A note payable on a contingency must be de- clared on as a special agreement, and the considera- tion must be set forth, (279) 143 5. If in pleading, mutual promises are not laid as concurrent, the count is bad and judgment will be arrested, (334, 5) 132 6. In proceedings under the act concerning forci- ble entries and detainers, if it is not alleged that the complainant was seised or possessed it is fatal, (365) 167 7. If narr. varies in substance from the process, the defendant waives the objection by pleading in chief, (384) 173 8. Where there must be a novel assignment, (395) 176 9. The defendant allowed to put in a plea plus darrein continuance after a lapse of more than one continuance, on payment of costs, (424) 184 10. If a defendant pleads that he promised with another jointly and not separately, this is a dilatory plea and must be verified by affidavit, (453) 193 11. A plea puis darretn continuance is a matter of right and is not too late though offered after the jury are placed in the box, (493) 2O5 PLEAS AND PLEADINGS Johns. 1. 1. Where the declaration on a promissory note, alleged a demand of payment in general terms, as, "although requested," &c., it was held good, especi- ally after a verdict. Lefflnyu'eU and Pierpoint v. WJiite, (99) 256 2. In an action of debt on a judgment obtained in another State, the defendant pleaded nul tiel- record and nil debet, and one of the pleas was ordered to be struck out. Le Conte v. Pendleton, (104) 259 3. Where the defendant pleaded two pleas of pay- ment to an action on a bond, one before the day, and the other at the day, the court, on motion, or- dered the first plea to be struck out. Thayer v. Rogers, (152) 28O 4. Where there is a precedent debt or duty, it is not necessary for the plaintiff to state a special re- quest or demand, in his declaration. Ernst v. Bartle, (319) 338 5. A plea of privilege by an attorney in abate- ment, concluding his plea to the jurisdiction of the court, is not to be treated as a nullity. Bronte v. Patterson, (328) 341 6. Such a plea does not require an affidavit, and may be put in. after special bail has been entered. (76.) 341 See Assignee. PLEADINGS Johns. 2. 1. Where matter is stated in a declaration, which might have been struck out, on motion, as surplus- age, it need not be proved on trial. AUairev.Ouland. (52) 435 2. Where a promise, in one of the counts in a dec- laration, by reference to the day in the preceding 776 count, was laid after the breach assigned, the mis- take was held to be cured by the verdict. Id. (Ib.) 435 3. The defendant pleaded nil debet,"saia payment, to an action of debt, on a judgment of the Supreme Court of Pensylvania ; and it was held that he was- bound to produce and prove the record, or an ex- emplification thereof. Rushv.Cobbett, (256) 507 4. A declaration on a bond of 70, stating that the plaintiff demanded 70, of the value of $175 lawful money of the State, which the defendant owes and detains, is good. Johnson v. Hedden, (274) 513- 5. In an action of ftcire facias against bail, the de- fendant pleaded thjtt another person of the same name and description, became bail, and traversed that he was the same person named in the bail- piece ; and the plea was held good. Renoard v. Noble, (293) 52O- 6. To an action of debt on a judgment in the Cir- cuit Court of the United States for the District of Massachusetts, the defendant pleaded that the rec- ord of the judgment had been removed by writ of error, according to law, into the Supreme Court of the United States, wherefore he prayed judgment, &c. On demurrer, the plea was held bad. Jenkins v. Pepoon, (312) 52 7 7. A writ of error pending, may be pleaded in abatement to a suit on the judgment ; but the plea must be drawn with precision, and conclude clearly in abatement, and not in bar. The plea must also state that the writ of error was brought before the action was commenced on the judgment ; and must show that all the steps have been taken which the law requires, in order to make it a supersedeas, as, in the present case, that a copy of the writ of error had been lodged in the clerk's office, within ten days after the judgment was rendered. Id. (Ib.) 527 8. Where a declaration commenced thus : "James Hildreth complains of Peter Becker and James- Harvey, the said James being in custody, &c., and the said Peter being returned not found, of a plea," &c. It was held to contain sufficient certainty, and that James Harvey the defendant, and not James Hildreth, was the person in custody, &c. Hildreth v. Becker & Harveu, (339) 536- 9. Where there are several persons jointly indebt- ed or jointly responsible, and all of them are not made defendants, it must be pleaded in abatement, and cannot be taken advantage of at the trial. Zelie & Becker v. The Executors of Campbell, (382) 55O PLEA FRIVOLOUS-Col. and Cai. A motion to overrule a frivolous plea, and to have leave to enter a default, has the same preference as a motion on frivolous demurrer, (419 183- PLEAS IN CHANCERY-Johns. 1. Whether a plea, that a contract relative to land to be patented is illegal, because it contravened the royal instructions (prior to the American Revolu- tion), is a valid plea? Qucere. Le Roy v. Veeder et al. (417) 375- See Bill. Demurrer in Chancery. POINTS Col. and Cai. 1. It is sufficient to serve them on the opposite party w_hen the argument is called on, (410) 18O 2. It is not sufficient for counsel to state the points merely, he must have them reduced to writ- ing or the cause cannot come on, (420) 183- POSSESSION Johns. 3. 1. By the common law, a conveyance of land by a person against whom there is an adverse possession at the time, to a third person, is void ; but the title of the grantor is not thereby extinguished or de- vested ; nor will such conveyance inure, by way of estoppel, for the benefit of the defendant in pos- session. Jackson ex dem. Jones, et al. v. Brinckerhoff, (101) 633 2. Where the legal possession of lands was in the heirs of A under a claim of title, and a descent in 1762, and B afterwards entered on the land and made improvements, and his possession was contin- ued for thirty-seven years, but it did not appear that he entered under claim or color of title, or nos- tile to the heirs of A, whose title was not disputed until after 1783, it was held that the legal intend- ment was that H entered under the title of the heirs of A, and that under the statute of limitations. COL., & COL. & CAI., & J's. CAS. 1, 2, 3, GENERAL INDEX. xxxi could not begin to run till after the possession of the defendant was held adversely to the heirs of A. Jackson, ex dem. Ganesvoort, et al. v. Parker, (124) 633 3. Where the ancestor of the demandant was in possession of the premises in question fifty-one years ago, and died in possession forty-one years ago, leaving the demandant, his only son, this was held sufficient evidence to rebut the presumption of right in the tenant, arising from a possession of thirty-eight years only, commenced by wrong. And a patent dated in 1697, produced in evidence by the tenant, not for the purpose of deducing a title to himself, but to show a title out of the demandant, was held not sufficient to repel the conclusion in favor of the demandant, as the jury might presume a title in the ancestor of the demandant, derived from the patent. Nose v. Peck, (128) 643 See Entry. POWER Johns. 2. See Limitation. POWER Johns. 3. Where a special power is granted by statute, af- fecting the property of individuals, it must be strictly pursued ; and it must appear, on the face of the proceedings, that the directions of the stat- ute have been strictly observed. Gilbert v. Columbia Turnpike Company, (107) 635 PRACTICE Col. and Cai. 1. The plaintiff may accept or refuse an imperfect copy of a plea, and if he accepts it the court will compel the defendant to file a perfect plea. (45, 50) 42, 82 2. If a demurrer is filed within 20 days after ser- vice of a copy of the replication &c., and a verdict taken notwithstanding, it will be set aside. (46, 51) 42, 83 3. If immediately after issue joined, and before notice of trial, the defendant gives notice of motion for a struck jury, it is incorrect in the plaintiff to carry down the cause. (46, 52) 42, 83 4. Interlocutory judgment cannot be entered un- til default previously entered. (49, 54) 43, 83 5. The rule on the sheriff to bring in the body by the first day of term, must be served twenty days previous. (/ft., Ib.) 43, 83 6. Whenever a special motion is to be made, grounded on an affidavit, a copy must be served on the opposite party. (63, 69) 47, 87 7. Where a creditor resides out of the State, notice of the petition under the act for the relief of debtors from imprisonment of their persons, may be served on the attorney. (64, 70) 47, 87 8. If pleas, &c., are not palpably bad, the party must resort to his demurrer. The court will not grant judgment as for the want of a plea. (82,86) 57,91 9. If the defendant pleads several pleas, and the plaintiff demurs and then withdraws his demurrer, he cannot compel the defendant to elect the plea he will abide by. (89, 92) 53, 93 10. When the plaintiff gives a defective notice of trial and takes an inquest, and the defendant allows a term to elapse before he makes his application to the court, the court will not set aside the verdict. (94, 97) 54, 94 11. Where the defendant's attorney gives the plaintiff notice of bail having been put in on a par- ticular day, but does not in fact file the bailpiece, until a day long subsequent, the court will consider it as filed on the day mentioned in the notice and make the defendant's attorney pay the costs of the application. (96, 99) 55. 95 12. If the defendant is arrested before the debt is due, and files bail and pleads in chief, it will then be too late to make the objection. (104, 107) 57. 97 13. Where a point is reserved by the judge at the trial, it is in nature of a special verdict. The plaint- iff must prepare the case and open the argument. (lb.,Ib.) 57,97 14. On the defendant's application, the court will postpone the first meeting of referees until the re- turn of a witness, and this application is considered in the same light with the first application to put off a trial on account of the absence of a material wit- ness. (105,108) 57,97 15. A trial is then only considered as lost when a junior issue could have been tried at the circuit. (107,110) 58,98 16. Where the plaintiff serves an amended narr. he is not bound to give new oyer when the oyer with COL., & COL. & CAI., & J's. CAS. 1, 2, 3. the original declaration was correct. (113, 110) 59, 99 17. Where defendants sever in pleading, the cause is still to be entitled against both as if they had not severed. (154) n 18. Where there is an agreement to stay proceed- ings on a bail-bond, on payment of costs, &c., and special bail is thereupon put in in the original suit, and the plaintiff proceeds to judgment in original suit and bail-bond suits on default, in payment of the said costs the court will set aside the proceed- ings on the bail-bond on payment of costs to the time when special bail was put in. (165) 113 19. When an inquest is taken before the sheriff and general damages given and some counts are good and others bad, the court will award an in- quiry de novo on the good counts. (186) 119 1 20. Misentitling papers. (185) 118 21. No motion can be made to set aside a writ of inquiry, until it is before the court, (230) 131 22. Scmb. that when the plaintiff is in possession of his writ of inquiry excuted, he may issue a new one if dissatisfied. (Ib.) 131 23. When a rule to show cause is made absolute on the non-appearance of the party on the day, it is of course to open it on his producing sufficient ex- cuse. (283) 144 34. After certificate to stay proceedings, each may notice for argument. (300) 149 25. Where damages have been irregularly assessed by the clerk, and proceedings vacated by consent, the court will order the assessment to be stricken out ; so that the party may proceed on the merits. (310) 152 26. Leave will be granted to make up a new nisi prius record and postea from the judge's minutes, when the originals are not to be found. (311) 153- 27. When the court of errors order a venire de. novo and remit the record, if the parties then pro- ceed to trial without an award of a venire de novo on record, the second trial is null and void, (336) 159- 28. An indorsement of a special plea by the coun- sel is a sufficient signing. (346) 16 29. On serving an amended oyer a new rule to plead must be entered and notice given, (scmb.) (388) 174, 30. Rule granted to stay proceedings in ejectment until the plaintiff should enter into a consent rule to allow the defendant to take a survey of bound- aries, such survey being necessary for his defence. (432) 187 31. The granting of orders to stay proceedings is chamber business and the party must first apply to a judge ; the court will not hear the application in the first instance. (434) 187 32. Until the writ is returned, bail filed, or an ap- pearance entered, there is no basis for proceedings. (448) 191 33. The court will not allow the general issue to be withdrawn to let in a plea of coverture in abate- ment, although the first plea was put in without the knowledge of the defendant, and by a person he never meant to retain as attorney. (456) 194 34. A judge at his chambers may grant and annul his own order to stay proceedings on a case made as well in term time as in vacation ; and this though a rule for judgment be entered. (461) 195 35. If a judge grant a rule to stay proceedings on the ground of an improper item allowed by the jury, the court may vacate that order upon relinquisn- ment of the item. (Ib.) 195 36. In a suit where there is no controversy as to the justice of the claim ; but a case is made merely on the question whether payment should be made to the plaintiff or his assignee, the court will not, pending the case, allow judgment to be entered to bind defendant's lands. (462) 195. 37. When a defendant serves his plea and neglects to file it, the plaintiff may enter a default which will be set aside only on payment of costs and filing a plea instanter. (464) 196 38. When a motion is called, time will not be granted until a further day to prepare affidavits unless some excuse is shown. (467) 197 39. When either side may notice for argument, the only mode to vacate the judge's order is by giving a counter notice, and demanding judgment when the case is called on. (488) 3O3- 40. But when the privilege of noticing is not mu- tual, then motion must be made to vacate the cer- tificate. (It>.) 203- 41. To put the plaintiff out of court the defendant must always proceed by entering a rule to declare or be non prossul ; the English rule by which the plaintiff is out of court, if he does not declare in a year, is not the rule of this court. (498) 2O7 777 GENERAL INDEX. PRACTICE John. 1. 1. If the plaintiff's attorney receives notice of a re- tainer from two attorneys of the defendant, he ought to inform the second attorney of the first no- tice from the first attorney, in order to prevent a surprise. WNeallu v. Mnrison, (28) 239 2. Where there are several actions on the same policy of insurance, imparlances will be granted in all but one, until the plaintiff consent to enter into the consolidation rule, which is the same as the English rule. Clason and Stanley v. Church, (29) 229 3. A copy of tne affidavit on which a special mo- tion is to be made, must always be regularly served on the opposite party. Fitzrou v. Card, (30) 230 4. A motion for a judgment as in case of nonsuit, for not proceeding to trial, will not be granted for the first default, if the plaintiff will stipulate to try his cause at the next court, or be nonsuited. Wild v. Gillet, (Ib.) 230 5. A motion for a nonsuit must be made at the next term after the default, otherwise the plaintiff need not stipulate. (Ib.) 23O 6. On proceedings under the act for the relief of debtors with respect to the imprisonment of their persons, where the plaintiff creditor resides out of the State, service of a notice of the petition on his attorney, is sufficient. Bates v. Williams, (30) 230 7. Where a sheriff is brought up on an attach- ment, the plaintiff must file his interrogatories in four days ; and the sheriff must enter into a recog- nizance to appear from day to day. Hen-ing v. Ti/lee, (31) 231 8. The clerk is to take the answers to the inter- rogatories, and report the same to the court, Id. (Ib.) 231 9. If a defendant put in a frivolous demurrer, he cannot afterwards withdraw it, to plead the general issue, though he has merits. GriswoW v. Harkins, (135) 272 10. Where the plaintiff took an inquest by default, after regular notice of an intended application to move, at the next term, for a commission, it was set aside. Le Conte v. Pendleton, (Ib.) 272 11. A service of a notice must be on some person in the house or office of the attorney of the opposite party : and it must be shown that every thing has been done to bring it home to the party. Getetonv.Swartwout, (136) 272 12. In error from a court of Common Pleas, the plaintiff may proceed by a rule on the defendant to join in error, or by a scire facias ad audiendum er- rores. Sheldon v. ZTEvers, (169) 286 13. Where bail are relieved on payment of costs, it is a condition which they must offer to perform without waiting for the plaintiff to tender his bill of costs. Cathcart v. Cannon, (220) 3O3 14. A motion to set aside the report of referees will be heard, though the report is not filed, it hav- i|ig been delivered to the defendant's attorney who kept it in his pocket. Thompson v. Tompkins, (238) 310 15. The court will not set aside a judgment entered on a verdict, where a case is made, nor hear the mo- tion for a new trial, unless an order to stay proceed- ings has been obtained. Van Rensaelaer v. Dole, (239) 31O 16. Where the plaintiff was under a stipulation to try a cause at the next circuit in New York, or be nonsuited, the prevalence of an epidemic fever in New York, was held a sufficient excuse for not pro- ceeding to trial, and to prevent a nonsuit. Torrey v. Moreluruse, (242) 311 17. Where the plaintiff's attorney resided in the city of New York, and had six days notice of a mo- tion to be made at the court, at Albany, and made affidavit that he had not time to prepare to oppose the motion, it was held a sufficient excuse for not opposing the motion on the first day of term. Id* (Ib.) 311 18. Service of a copy of a bill against an attorney, on a person in his office, who appeared to be one of his family, is not a sufficient service, where the re- ceipt of it is denied, and no reason shown why ther. was not a better service. Saltcr v. Bridyen, (244) 312 19. After a verdict, unless a certificate or order of a judge to stay proceedings, be obtained, the party 778 in whose favour the verdict is given, though a case be made, may proceed to enter up judgment. Came v. Shzphard, (245) 313 20. After a judgment is entered up on a verdict, bhe court will not hear a motion to set it aside, un- less there has been a certificate of a judge, or an or- der to stay proceedings. (Ib.) 313 21. A party who is dissatisfied with the refusal of a judge to grant a certificate, or order to stay pro- ceedings, may apply to the court, at the next term, for that purpose. (15.) 313 22. After a demurrer is put in and withdrawn, by the plaintiff, it is too late for him to move that the defendant elect and abide by one of his pleas. Dole v. Moulton, (246) 313 23. Before a default for not joining in demurrer, a party may amend the pleading demurred to, but he cannot add a new plea. Id. (Ib.) 313 24. If a plaintiff voluntarily suffers a nonsuit, and then brings a second action, without paying the costs of the first, the defendant may at any time be- fore trial, move for a stay of proceedings, until the costs of the first suit are paid. CuuUr v. Vanderwerk, (247) 313 25. Both parties in replevin are actors, and judg- ment as in case of nonsuit, for not proceeding to trial, is never granted. Barrett v. Forrester, (Ib.) 314 6. the plaintiff cannot amend his declaration, after plea pleaded, without paying costs and giving an imparlance. Holmes v. Lansing, (248) 314 27. A motion to set aside proceedings for irregu- larity, must be made at the next term after the irregularity happens. M'Evers v. Markler, (248) 314 28. If a writ of right be not returned on theonwwto die post, and the tenant means to put the demandant out of court, he should enter a ne recipiatur. Sacket v. Lothrop, (249) 314 29. A plea of privilege by an attorney in abate- ment, and concluding to the jurisdiction of the court, is not to be treated as a nullity ; nor does it require an affidavit; and it may be put in after special bail has been entered. Brooks v. Patterson, (328) 341 30. Service of a notice of a motion, by leaving it at the lodgings of an attorney, is not sufficient. It must be served personally, or be left at his office or place of business. Jackson, ex dem. Pickart, v. Eacker, (331) 343 31. When a verdict is taken, subject to the opinion of the court, on points reserved, the plaintiff must make up the case and have it settled, and cannot have judgment because no case is made. Eagle v. Alner, (332) 343 32. The right of proposing amendments to a case made, does not authorize the party to substitute a new case. (Ib.) 342 33. Where on a writ of right a special imparlance is granted to the first day of the next term, the ten- ant is bound to plead on that day, and is not allowed until the unarto die post. Haines v. Biuld, (3*5) 344 34. The demandant on a writ of right is entitled to a view, as a matter of course, Id. (Ib.) 344 a5. Where the attorney of the defendant gave notice of special bail before judgment, but the bail was not actually filed, it was ordered to be filed nunc pro tune, and that the attorney pay the costs of the motion for that purpose. Britt v. Van Norden, (390) 363 36. If the defendant neglects to give notice of a motion for a commission to examine witnesses, until after the cause is noticed for trial, he must pay the costs of the notice. Burr v. Skinner, (391) 363 37. Where no attorney appears for the defend- ant, the service of a copy of the declaration, by putting it up in the office, with a notice to plead in 20 days, is sufficient. Graves v. Hassenfrat, (Ib.) 363 38. On affidavit of the tenant in ejectment, that one of the lessors of the plaintiff was dead, at the commencement of the suit, the demise from such lessor was ordered to be struck out of the declara- tion. Jackmn, ex dem. Butter, v. Ditz, (393) 364 39. To change the the venue in a cause, it is not enough that material witnesses reside in another county, but the party must show that there is some material fact happening in the county to which he wishes the venue to be changed. Gourley v. Shoemaker, (392) 364 COL., & COL. & CAI., & J's. CAS. 1, 2, 3. GENERAL INDEX. 40. A point reserved by the judge at .ZVfei Prius is like a special verdict, and the plaintiff must prepare the case and open the argument. Percival v. Jones, (393) 364 41. Where the defendant was sued on a note be- fore it was due, and put in bail, and pleaded in chief, it was held that it was too late afterwards to make the objection. Crygier v. Long. (II).) 364 42. Costs were granted against the plaintiff for not proceeding to trial pursuant to notice, though the defendant s objecting to the jury process was the reason that the cause was not tried. Dill v. Wood, (394) 364 43. On the affidavit of the defendant, of the ab- sence of a material witness abroad, the meeting of referees was postponed for two months. Bird v. Sands, (Ib.) 364 44. Where the tenant in a writ of right, demands a view, it is the duty of the demandant to sue out the writ of view, and if he does not, he will be non- suited. Scofield v. Lodie, (395) 365 45. Under a consolidation rule, after judgment in one cause, the defendants in the other causes have 8 days to pay the money, after the judgment and taxation of costs ; and if the judgment is rendered in Albany, and the defendants live in New York, they have 14 days for that purpose, and so vice versa ; but the plaintiff may, for his own security, enter up judgments in the other causes immediate- ly, but the costs are to be deducted if the money is paid in time. Earl v. Lefferts, (395) 365 46. After the order of the court in a cause, a further order of a judge at his chambers on the same matter, is irregular. Stansbury v. Durelli (396) 365 47. When the proceedings in a cause are stayed on payment of costs, it is the duty of the defendant to seek the plaintiff, and tender the costs. Id. (Ib.) ,365 48. Special bail need not justify, unless required so to do. Id. (Ib.) 365 49. When the defendant pleads another action pending, the plaintiff may enter a nil capiat per breve in the first suit, any time before a replication to the plea in abatement, and that without leave of the court, or payment of costs. Marston v. Lawrence and Dayton, (397) 366 50. Where the defendant having put in bail, which was excepted to, tendered the money due to the plaintiff who did not ask for a trial, the court re- fused to fix the sheriff by an attachment. Post v. Van Dine, (412) 373 51. If the defendant's attorney swears that he sent a plea to the plaintiff's attorney by mail, and that he believes that it was received, the court will pre- sume that it was received by the plaintiff's attorney unless the contrary be shown. Stafford v. Cole and Spalding, (413) 372 52. The sickness of bail was admitted as a suffi- cient excuse for not surrendering the principal within the 8 days. Boardman and Hunt v. Fowler, (Ib.) 372 53. Special bail may depute another person to make the surrender of the principal, ex necessitate. Id. (Ib.) 372 54. The service of a second declaration in ejectment by the plaintiff's agent, though without his knowl- edge, is a waiver of the first. Kemble v. Finch, (414) 373 55. Where a declaration has been served with oyer and the declaration is amended, a copy of the amended declaration served, a new oyer need not be delivered. Lefferts v. Byron, (415) 373 56. In proceedings under the act for the reilef of debtors with respect to the imprisonment of their persons, creditors residing out of the State, as it respects notice, are to be considered as not found. In ReWilUams, (416) 374 See affidavit. Amendment. Imparlance. Depo- sitions de bene esse. Ejectment. Justice's Court. Mandamus. Venue. PRACTICE Johns. 2. 1. Where one of two plaintiffs resided in the State, and the other out of the State, and the plaint- iff within the State died, and the defendant after- wards obtained a judgment, it was held that the attorney for the plaintiffs was not liable for the costs. Jackson, ex dem. Lewis .). (128, 129) 63. 1O3 4. The affidavit to retain the venue on the ground of local prejudices in the county to which, &c., should set forth all the facts and circumstances, so that the court may judge of their force. (Ib.. Ib.) 63, 103 5. In an action on a covenant of seisin, the court will change the venue on the usual affidavit. (158) 111 6. On a motion to change the venue if the cause of action is not stated in the affidavit, the court will not intend that it is not transitory. (343) 161 7. In an action for a libel, the court will not change the venue from the place where it was cir- culated to the place where it was printed. (399) 177 8. In an action for use and occupation, venue changed to the county where the lands, &c., are situate, on affidavit that all the defendant's wit- nesses reside there. (418) 182 9. So in all transitory actions. (446) 191 10. To retain the venue in such cases, the plaintiff must swear that he has material witnesses where the venue is laid. (418) 182 11. When the defendant intends to move to change the venue, he ought to apply to a judge for an order to enlarge the time to plead or to stay pro- ceedings. (422) 184 12. The court will allow the venue to be changed after plea pleaded, if no trial has been lost, and it will be productive of no delay. (459) 194 13. In an action in Orange County, for running a road with the intention of injuring the toll of a turnpike, the court refused to change the venue on an affidavit, stating that from the nature of the action, an impartial trial could not be had. (468) 197 14. The court will in no case change the venue from New York to Kings, on account of their con- tiguity. (482) 201 VENUE-Johns. 1. The venue will not be changed on the usual affi- davit, if the plaintiff will stipulate to give material evidence in the county where the venue is laid. Bentleu v . Weaver, (240) 311 See Practice, 39. VENUE Johns. 2. 1. In an action of aasumpsit the venue will not be changed on the general affidavit. Wheaton v. Simoon, (111) 456 2. An action for use and occupation is not local in its nature, being founded on privity of contract, and not on privity of estate. Corporation of New York v. Dawxon, (335) 535 786 3. The venue in a cause in which the corporation of New York was a party, was laid in the city of New York, and the court refused to change it, merely on that account, on the bare allegation that an impartial trial could not be had in the city and County of New York. Id. (Ib.) 345 4. An action of debt in this court, on a judgment in a court of common pleas, is a local action, and the venue must be laid in the county where the judgment was given. Barnes v. Kcnyon, (381) 55O VERDICT Johns. 2. 1. Where a promise in one of the counts in a dec- laration, by reference to the day in the preceding counts, was laid after the breach assigned, the mis- take was held to be cured by the verdict. Allaire v. Ouland, (52) 435 2. A and B being indicted for a conspiracy to de- fraud C, the jury found a verdict that there was an agreement between A and B to obtain money from C, but with an intent to return it again. This was held not to be a verdict of acquittal, nor any verdict on which a judgment could be given. The People v. Olcott. (301) 523 VIEW Col. and Cai. 1. The affidavit on which the motion for a view is grounded, must state that boundaries are in ques- tion. (49, 55) 43, 83 2. When view is granted on a writ of right at the instance of the tenant, the demandant is bound to sue out the writ. (98, 101) 55, 95 3. If he does not sue it out in season, the court will grant a rule for him to sue it out, and cause view to be given by the first day of the then next term, or be nonsuited. (lb., Ib.) 55, 95 VIEW- Johns. 1. 1. In an action on a writ of right, the tenant is entitled to a view of the premises, as a matter of right, in all cases except those in which it is re- strained by statute. Inhabitants of G-ravesend v. Voorhis ct al., (237) 310 2. The demandant in a writ of right is entitled to a view, as a matter of course. Hainesv.Budd, (335) 344 3. W_here the tenant, in a writ of right demands a view, it is the duty of the demandant to sue out the writ of view, and if he does not, he will be non- suited. Scofield v. Lodie, (395) 365 WAIVER Col. and Cai. See commission, 3. Ejectment, 4. Motion, 4. Notice 1, 13. Pleading, 1, 7. 1. An irregularity not within the party's knowl- edge cannot be waived by any act of his. (464) 196 2. Notice of motion for judgment, as in case of nonsuit, is not waived by being followed by notice of motion for commission. (488) 2O3 WARRANTY Johns. 1. See Insurance, 1, 2, 4, 11, 13, 19, 20, 22, 23, 26. WARRANT OF ATTORNEY-Johns. 1. A warranty of attorney by a prisoner and an- other, to a sheriff, to confess judgment on a bond given for the liberties of the prison is void. Dolt v. Moulton et al.. (129) 269 WILL Johns. 1. If a husband or a wife be a witness to a will con- taining a devise or legacy to either, such devise or legacy is void. Jackson, ex dem. Cooder, v. Woods, (163) 284 WILL Johns. 3. 1. The record of a will proved under the statute (sess. 24., eh. 9, sec. 6.). is not conclusive upon the heir, so as to prevent tiie admission of evidence to impeach its validity. The record of a will, like that of a deed, is only prima facie evidence of its authen- ticity. Jackaon, ex dem. Woodhutt v. Rum sew, (234) 680 2. A will executed in 1723, and which had been proved by the witnesses, in 1733 and 1744, and record- ed, but not in a manner authorized by law, was al- COL., & COL. & CAI., & J.'s CAS. 1, 2, 3. GENERAL INDEX. xli ,owed to be read, in evidence, on the trial of an ac- tion of ejectment, in 1801, as an ancient deed, though actual possession did not follow and accompany the will, that being: explained by the peculiar situation of the property in question, and other circum- stances shown, to raise a presumption of the exist- ence and genuineness of the will. Jackson, ex dem . Levris, et al. v. Lar- mcay, (283) 097 WITNESS Col. and Cai. 1. Witnesses appearing- on subpoenas in criminal cases are entitled to fees as if they had appeared on recognizance. (35, 41) 39, 79 2. Infirm witnesses may be examined de heJie ease, at any time after suit commenced, upon application to the court. (69.74) 48.88 3. Where an agent has made an agreement, if the cause should be lost, to refund certain money re- ceived for his principal who is the plaintiff in the cause, this agent is a good witness for the plaintiff. (220) 138 4. If a witness does not appear on the subpoena, a rule to show cause is first granted, before attach- ment issues, unless some wilful contempt or disobe- dience is shown. (357) 165 5. On a cross-examination, no testimony can be introduced which would have been illegal on a di- rect examination, (389) 177 WITNESS Johns. 1. 1. If either a husband or wife be a witness to a will containing a devise or legacy to either, such devise is void by the statute, and the devisee or legatee thereby becomes a competent witness. Jackson, ex dem. Cooder, v. Woods, (163) 284 2. Where the subscribing witness to a bond is dead, proof of his hand-writing is sufficient, prima facie. Mott v. Doughty, (230) 3O7 3. The owner of a vessel who had overpaid money shipped in the vessel to the shipper, and had been reimbursed the amount by the master, was held a competent witness in an action brought by the mas- ter against the shipper, for the same money, though in the first instance the owner is liable for the fault of the master. Cort es v. Billings, (270) 331 4. An agent is a competent witness, ex necessi- tate. Id. 321 5. In an action of ejectment, a person cannot be a witness to show that he was the tenant and not the tenant in possession. Brandt, ex dem. Corttcmdt, v. Dyckman, (375) 323 6. An agent of the insured, who applies to the broker to have the insurance effected, is, like all other agents, a competent witness, ex necessitate. Mackayv. Rhinelander, (408) 37O See Ejectment, 8. COL., & COL. & CAI., & J.'s CAS. 1, 2, 3. WITNESS-Johns. 2. 1. A money broker, who had advanced money on a note, and deducted a premium of two per cent, per month, is a competent witness in an action brought by a subsequent holder against an indorser to prove that the note was passed for no more than the legal rate of interest. Jones v. Hake, (60) 438 2. Where a witness refuses to obey a subpoena, which has been regularly served upon him, the court will grant an attachment against him, in the first instance. Andrews v. Andrews, (109) 455 3. Where a husband is witness to a will containing a devise to his wife, such devise is void, and the hus- band is a competent witness. Jackson ex dem. Beach et al. v. Dur- land, (314) 528 4. Where a witness, who was regularly subpoenaed by the defendant, was out of the way when the trial of the cause was commenced, and "did not appear until the testimony on both sides was closed, and the counsel for the defendant had proceeded to sum up the evidence ; and the judge refused to ad- mit the witness to be examined, and the jury found a verdict for the plaintiff ; it was held that the ad- mission of the witness was a matter of discretion with the judge ; and a new trial was refused. Alexander v. Byron, (318) 528 WITNESS-Johns. 3. See Evidence. Insurance, 26. WRIT OF RIGHT Johns. 1. See View, 1, 2. Practice, 28, 32, 34. WRIT OF RIGHT-Johns. 3. 1. On the issue on a writ of right, the only ques- tion is, which of the parties had the better right ; and the evidence to establish the right is subject to the same rules as in other cases. Nase v. Peck, (128) 642 2. Where the ancestor of the demandant was in possession of the premises in question, fifty-one years ago, and died in possession forty-one years ago, leaving the demandant his only son, this was held sufficient evidence to rebut the presumption of right in the tenant, arising from a possession of thirty-eight years only, commenced by wrong. And a patent dated in 1697, produced in evidence by the tenant, not for the purpose of deducing a title to himself, but to show a title out of the demandant, was held not sufficient to repel the conclusion in favor of the demandant, as the jury might presume a title in the ancestor of the demandant, derived from the patent. Nose v. Peck, (IM 642 787 A_" I III II I 001 028 869 4 r-*f.m 4