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COVJiAS^^am .Air LAW 4V1> Mlirva:iMM t%j Xttm aiTAriU 

VOL. I. 


raiyTED for i&iuc bilet v co. jw. i, cnr-HOTEL. 


? p 


District of > ^^^ T> E IT REMEMBERED, That on the fourteenth day of 
New- York, 5 * ^ November, in the twenty-ninth year of the Independ- 
ence of the United States of America, George Gaines, of the said Dis- 
trict, hath deposited in this Ofiice, the Title of a Book, the right whereof 
he claims as author, in the words following, to wit : 

^ New-York Term Reports of Gases argued and determined in the Su- 
^ preme Court of that State. By GEoacu Gaines, Counsellor at Law, and 
« Hefiartar to the State. Vol. I." 

Ik conformity to the Act of the Congress of the Ututed States, en- 
titled ^ An Act for the Encouragement of Learning, ^ by securing the 
^ Coiues of Maps,. Charts, and Books, to the Authors and Pn^etXNrs of 
^ such Copies, during the times therein mentioned." 


Nwembtr 14, 1804. Clerk of theDutHccof New«^rk. 


IN a jiirifprudence where the judgments of the 
pad are to regulate thofe of future times ; — 
•where that which has been, is to form the rule 
of that which, is to be, — the utility and im- 
portance of tranfmitting, to thofe who are yet 
to come, the decifions of our days, to be ac- 
inowledged, need only be named. The inconve- 
niences refulting from the want of a connedled 
fyflem of judicial reports, have been experienced 
and lamented by every member of that pro- 
feifion for whofe ufe the following flieets are 
peculiarly defigned. The determinations of the 
court have been with difficulty extended beyond 
jthe circle of thofe immediately concerned in the 
fuits in which they were pronounced ; points 
adjudged have been often forgotten, and in- 
fiances might be adduced where thofe folemnly 
eftablifhed, have, even by the bench, been treated 
-as new. If this can happen to thofe before 
'Wliom every fubjedl of debate is neceflarily 
agitated and determined, what muft be the flate 
.of the lawyer, whofe fole informaticm arifesfrom 

; ^Jbkk^jQlwn pradice, or the hearfay of others? 

f ^cgmtd on books,, the dodlrines of which have 


in many refpeds been wifely overruled, he muft 
have frequently counfelled without advice, and 
aded without a guide. To alleviate thefe em- 
barrafTments, and difTeminate that which it 
concerns all to know, the following Reports 
have been undertaken. Their continuance will 
be regular by quarter-annually publifhing in 
each vacation the decifiona of the laft preceding 

The reporter would ill deferve the favours he 
has received, did he npt in the fulled manner 
avow their extent. Their Honors on the 
bench, with a kindnefs and warmth of encou- 
ragement, for which far more is felt than it is 
Jpoflible to exprefs, have unrefervedly given their 
written opinions, and the whole bar has frankly 
and generoufly afibrded their cafes and every 
other communication, that was wifhed or de- 
ifired. To thefe aids the clerk of the court has 
added an unlimited recurrence to the papers and 
pleadings his ofBce contains. 

From this enumeration of ailiflances it will 
appear, that the reporter's exertions have been 
reduced to little more than arranging the ma- 
terials received, and giving, in a fummary 
manner, the arguments adduced. In flating 
thefe it has been condenfe; to 
fhorten but not to deviate from the path, coun- 
fel have been ple2fed to eledt So little has this 


been done, that in fbme inftances, it has been 
thought right to tread in their fteps, and the 
very words have been adhered to, becanfe they 
have been confidered as mirrors refleding the 
cafe, without which it would often be impofli- 
We to behold it in the light reprefented to the 
bench. To omit altogether what the advocate 
has urged, and fpecify his points alone, has 
more than once been fuggefted ; but believing 
the reafonings of the barrifter to form the link 
which connects the cafe with the decifion, 
it was thought impofiible, without in fbme de- 
gree preferving the language of the pleader, to do 
juftice to either. Notwithftanding every endea- 
vour to render this, it muft be confcffed that it 
has not always been accomplifhed ; and the elo- 
qxient in the law will often have to regret the 
inadequacy of their reporter. For this their 
forgivencfs is entreated : the fault is not in the 
man, but the nature of the thing. Where is the 
original that in the copy has not loft fire and 
colour ? With this apology the reporter takes 
his leave of a bar to whom he is in every fenfe 
of the word, truly obliged. 


New-York, February, 1804. 

k f 9 i»mm 


Thofe in BalUs are from Manufcript Reports read or referred to. 

A. Page 

jCt. Broome - - 292 
I T. Woolcot and another 250 

inder ▼. Eften 

Y. Brace 

ijmous - - - 

n and Qofe v. Rice and 

V. Monteiro 
•bury V. Teller 
r and Rowlfbn v. Arnold 
roft V. White 
wall V. Church - - 
eetux'v. WUlet - - 
V. "Rhinelander 
ge V. \Jn. In. Company 
?rt and Lewis v. Hiidreth 
les V. Hallett 
ne V. Hallett 
ne V. Shaw 

- ▼. Neilfon & Bunker 
^tu <;• JV. IT, In. Company 
n V. Rodelicks and Shivers 
idt ex Dem' Rickets and 
lOthcTY. Buckhouts 















idtcB exDem' Fitch v. 

Mil - - - - 

tt and Bunn v. Hood 
tkirhmfv. Fan Aljtine 
wn and Kfinberley v. Neil- 
m and Bunker 
Inn and others v. Hallett 
MBovne - - . 
lam ▼• N. T. In« Com. 







Campbell v. Munger & others 129 

Carpenter v. Butterfield 7 1 

Caikaden ex parte - - 34G^ 

Church V. Un. In, Company 7 

Clarkfon V. Gifford - . 5 

Clafon V. Lyle - - - - 323 

Codwife and others v. Hacker 74 

V. Hacker 526 

Cogfwell V. Vandenburgh 155 

Cole V. Stafford - - 249 
Coles and others v. Thompfon 517 

Combs V. Wyckoff - - 147 

Coullon V. Bowne - - 28^ 


Deas V. Smith - - - 171 

Delamater v. Borland 593 

Den V. Fenn - - - 487 
De Peyfter and Charlton v. 

Gardner - - - 492 

Dirkeev. Bracket - - 501 

Dow V. Smith - - - 32 
Drake and another v. Elwin & 

others - - - - 184 

Dtif V. Fan Zandt - • 23 

Duguet V, Rhinclander 289 


Everitt ads the People - 8 


Fallmer v. Steele - - 22 

Foot V. Crofwell - - 493 


Gilbert V. Brazier - - 13 

Gilchrift v^ Van Wagenen 490 

Gilliland V. Morell - 154 

Given v* Driggs - - 450 

Gordon v, Bownc - - 513^ 



Govemeur and Keznble v. U. 

In. Company * - 592 

Same againu the fame 592 

Graham v. Woodhull - 497 
Grifwold & another v.Stoughton 6 
Giover V, Green - - 115 

Hallett V. Cotton - - 11 
Halfey v. Watfon - - 2i 
Hai:t V. Hofack - . 25 

Hawkins v. Bradford - 16Q 
Henderfon v. Brown - 92 
Herick V. Manley - - 253 
Heyl V. Burling - - 14 

HUdreth V. Ellice. - - 192 
Hitchcock & Fitch v. Aicken 460 
Hoffman and Seton v. Smith 1 57 
Hopkins V. Beedle - - S47 
Houghton V. Strong - 486 

Hudfon V. Henry - - 67 
-Huguet V. Hallett - - 55 
Hunnv.Bowne - - 23 

Imky V. Sands - - 666 

J • 
Jachfon ex DenC Ludlow v. 

Jf^ebb - - - . IIG 
Jackfon ex dem* Jauncy v. 

Cooper and another - 19 
Jackfon ex dem* Low and o^ 

thers V. Reynolds - 20 

Jackfon ex dem' Potter v,Hub- 

bard - - - - 82 

Jackfon ex dem* Winter v. 

M*Evoy - - . 151 
Jackfon ex dem' ftodman v. 

Brown - - - --152 
Jackfon ex dem* Watfon v. 

Marfli - - - - 153 
Jackfon ex dem* Le Roy v. 

Stenrberg - - - 162 
Jackfon ex dem' Williams v. 

Chamberlin and others 171 
Jackfon ex dem' Hogeboom r. 

Stiles .... 249 

Jackfon ex dem' Finch t. Kough S 
Green v. Bil- 
lings «... g 
Jackfon ex dem' Putnam t. 

Bowen • - - S 

Jackfon ex dem' Staring t. De- 

fendorf - - - % 

Jackfon ex dem' Hogeboom v. 
. Stiles ... - E 
Jackfon ex dem' Rofekrans v. 

Howd - - - ^ 
Jackfon ex dem' Smith t; j; 

Hammond * - « 4 
Jackfon ex de^i' Low and o-i 

thers V. Reynolds - ^ 
Jackfon ex d^m* Prior ^nd o- ' 

thers V. Brown - - 4 
Jackfon v. Mann - - \ 
Jenks V. HaUett and Bowne ' = 
Jones V. Emerfon - - 4 
Jcties V. Reid • - 5 

-^ K. 

Kemble v. Bowne 
Kirby v. Watki^s - - | 
kirby V. Qogfwell • - ^ 
— — y. Cogfwcll ^ m t 
Knap V, Palmer - - 4 

Lackey and Briggs v» W 

Donald ... 1 

Lawrence and. Witney v. Vaa-. 

horn and Clarklbn * S 
Lawrence v. Van Waganen 
Leavenworth v, Delafield " 
■ ■ ■ V. Dale J I 

V. Bowne 

. .. ■ ■■ V. Delafield 

Livingfton v.. Delafield 
■ V. Rogers 

V. Rogers 

Lcitge V. Phelps 
Lowry V. L.a_wrence 
Luflier V. Walton 
Lyle V. Clafon 
-*.—¥• Clafon 





gear V. LoTeland « M 
tb ami Higgins ?. 

rch - - . 19« 

I'scafe * - 7« 

kar ▼. Alden - 58 
▼• Kiuney ? , ^ 

attan Com. v. Hubert 6 

V. Smith' 67 

-.i i t ■ V, J^dyani Iflf? 

■ v. Brower 511 

ng ex p^rte - - 59 

I V. Bradley and others 124 
rs V. £4^2irds <- 515 

• andXIorporation N, Y. 
Ian. Comp, - 507 

• and Corporation N. Y. 
cott - - - 543 

V. Drake - - 45 
V. Livingfton - 349 
rdV-HaUett - - 344 

▼• GilHngham - 73 

ordv.P- N.Smith 520 

& Boyd V. Un. In. 0)m. 49 

'ay V. Un, In. Company 237 


f. Tupper - - 402 

ny. Cox and others 121 
I and Thompfon v. Col. 

trance Company - 345 


7. OMi ... 412 

an v. Sherman - 344 

V. Babe and others 1 29 

I T. Tonngs - 37 

Vi Shaw - - 125 

▼. Ruft - - .131 

▼. Crofweil - 149 

▼. Deniiow - 177 

T/Dole - - 181 

T. Freer - - 394 

T* Bfbwn - 416 

Y, Vreer - . 485 

People V. Everitt 

^iw— V. Judges of Wafliing- 

ton . • * . 
Pettingal q. t. ¥. Brown 
Peytem v. HaUett 1 
.-,— V. Dckfield i 
Phelps V. Eddy m « 
Poft V.Wright 
Potter V. Brigga 
Ptior and others v. Brown 
Purdy V. Delavan 
Rathbone v. Blackford 
-..— i— ▼. Blackford 
Randal, In Re . 
Remfen v. Ifaacs * 
Renaudct v. Crocken 
Reynolds ex parte 
Riddles V. Mitchell 
Ripley v. Wardell 
Rofs V. Hubble 
RufTel V. Ball and others 
Ryer$ v- Hillyer 
Richardson^s cafe 


Saidler and Craig v. Church 
Seaman v. Davenport 
. V. Drake 

Sheffield v. Watfon 
Shuter v. Hallett 

V. Hailett 

Smith V, Scott - - - 
Smith and Stanley v. Wright 
Spencer v. Webb 

v. Sampfon 

Steele ads. Tennent and ") 

Fuller ads. Tennent 3 
Stuart v. Rich 

Ten Eyck and Elmendorf v. 

G. and B. Tibbits 
TouTifcnd V. N. Y. In. Com. 
Jeferies (n) 


Trufdale v, 





















Union Turn. Com. v. Jenkins 38 1 




Vander Mark v, Jackfon 


Vandyck v. 




- - - 



Vandyck v. 





- - - - 



Van Nefs v. 




Van Schaick 

V. King 


Wallaee v. Lochwell 



Waterbury i 

r. Delafield 


Watfon V. De Peyfter and Co, 
Way V. Bradt r 

Way V. Carey - - - 
Weaver v. Bentley 
Webbv.Wilkie * - 
Weed V.Ellis .... 
Wells V. Newkerk 
Winton V. Saidler 
Woods V. Van Ranken - 

Zobie(ki v. Bauder 



Iir THE 


or THE 


lu May Term, in the Twenty-Seventh Yeae of 
our Independence. 

Bogert and Lewis, Executors of Bogert, againft 
Hildreth, Sheriff of Montgomery. 

THIS was an a^on for an efcape from execution. The k£w-Y0R1C 
venue was laid in the city of New- York. The dc- May 1803. 

fendant at a former term, on an affidavit (latins the caufc of . ^^^^^^i 

^ g, \ g* r Inan aoion for 

affion (if any) to have arilen in the county of Montgomery^ an efca|>e from 

and adding that the defendant's witnefles, who were numerous, P^^^ ^^ 

refided in that county, moved to change the venue from New- ju^^^ment on 

York to Montgomery. It was then contended, that this ac- ][^5^ ^ p^ 

tion was fo far local that the plaintiff was bound to lay the. fonerwufound- 

venne in the county where the prifoner had efcaped : but the inanothercoun- 

court was of opinion, that the fuit was tranfitory ; that the jy» » ^^^ ^"ch a 

pbuntifis had a right to lay the venue where they pleafed in mak^t the ac- 

tbc firft inftance, and the defendant enjoyed the common ^j^".^^^*^® 

privilege of changing it on the ufual affidavit. On that a recordd Que- 

. rule was made that the venue Ihould be changed from the JJi^^^ ^SS 

- dtj of New-York to Montgomery, unlefs the plaintiffs, within happens be not 

''' tvttaj days, ihould ftipulate to give, on the trial, material ^^'J^v^"? 

^"vldenpe arifing in the city of New-York. The plaintiffs 

'^ fipolatc accordingly, and tranfmitted a notice of it to the 


NEW-YORK, defendant's attorney by mail to Johnftown in Montgomery 
^*y !^f^ county ; four days after which, and before, according to the 

Bogcrt &anoth. courfe of the mail, the defendant could have received the no- 
„.J- , tice, he pleaded in bar firefti porfoit and recaption before ac- 

ruldrcth* • • i 

^________^ tion brought. 

• Sec Mellor v. 'Riggs now moved that the plaintiff* be difcharged from his 
1*"^^' ^^t ft"P"^at^o"> ^^ *^ grounds, firft, that the fubftratum of the 
ney v. Collins, z aAion being the judgment againft McDonald, which was filed 
ciifibld ▼ ^ck- *** New- York, the caufe of aflion arofc there 5* and, fecondly, 
fold, ibid. 647* that the defendant, having pleaded before he received notice 
Jct"3'Boff &■ of *c ftipulation, had waived the rule for changing the 
PuL la. venue. 

Per curiam. This is a motion to vacate a rule entered the 
laft term, ** for changing the venue to Montgomery, unlefs 
** the plaintiffs would undertake to give evidence material to 
*• the iflue arifing in the city and county of New- York." It 
is now faid, that the court committed an error in changing the 
venue ; becaufe, there being matter of law and matter in pais, 
material to the iiTue, in dl&rent counties, the plaintiff" might 
elefl to lay his aflion in either ; and that, in fuch cafes, it 
cannot be changed, unlefs for urgent or particular reafons. 
This rule when well underftood is a falutary one, but it does 
not apply to this cafe : it means, that when official a£ts are 
done by the defendants in feveral counties, fome of which arc 
matters of record, and others of faft, there the plaintiff* has 
his eleaion. Thus in the cafe of Griffith v. Walker, i Wil. 
336, which was an a^lion againft the (herifl^ of Radnorfhire 
for a falfe return to a fcire facias, the venue of which was laid 
in Herefordfhire, it was alleged, on demurrer, that the aflion 
ought to have been laid in Radnor, becaufe whatever adVs the 
Iheriff does officially muft be done in his own county, or at 
leaft the law fuppofes them done there : but the court faid^ 
the fheriff may indorfe his writ any where ; and, as it is al- 
leged that he did this in Herefordffiire, the plaintiff has his 
election to lay his aAion where he can prove the fafi donr. 
Here the return was matter of record, but it is not on that 
account merely that this eleflion is given, but becaufe the 
ftieriff was the party ivho made that return^ which was the gift 
of the fuit. If this return had afterwards been filed (as was 
no doubt the cafe) in the office of the Court of King's Bench, 
it would not have juftified the laying of the venue in that 


coontj. In the cafe before us it Is faid, that the judgment new-yor 
roll againft the party who efcaped is filed in an office kept in ^*y '^3 
the city and county of New-York, and therefore the venue B^^&I^ 
cannot be changed. This judgment was no aft of the £heriff 's, J^- 
and therefore not like the cafe of a return made by him in a * 
particular county. Nor is it the ground of this action, which 
is, emphatically, the efcape firom the jail of Montgomery. A 
principal reafon for permitting a pl^ntiflF to retain the venue 
where he has laid it, arifes from the circumftance of his hav- 
ing material witnefles there. This rule (hould not be abufed 
by too much refinement. If the recovery againft the party 
who has efcaped muft be given in evidence on the trial, it 
may be done by exemplification, which is the proper way ; 
and this may be carried without expenfe to Montgomery. 
Bulwer^s cafe, in 7 Co. i, only determines, and that on de- 
murrer, that an action for malicioufly outlawing the plaintiflT 
might be laid in the county where the capias utlagatum was 
executed -, and not neceflarily in Middlefex, where the wrong 
was commenced by ifiuing the capias ad fatisfaciendum. This 
decides nothing ; for although the plaintiff may, in many 
cafes, in the firft inftance choofe his venue,* it does not fol- ^^^^i^^v 1 
k>w that the defendant (hall not change it, or that the court 286, Mayor 
would not, in that very cafe, have changed it on the common f^^l \y^^ 
affidavit. The cafe of Cameron v. Gray, in 6 T. R. 363, is 1069. 
fiibfequent to the Revolution, nor can the fafts be all di(^ 
dofed. Lord Kenyon would hardly have faid, (and yet fuch 
b the effijft of that dccifion) that all adlions for infraftions of 
patent rights are local, and muft be tried at Weftminfter, 
folely becaufe the patent, which is its fubftratum, ifTued there. 
If this be his meaning, we are at liberty, confidering the date 
of this cafe, to differ from his Lordfliip ; and it appears to 
me, with due deference, that the county in which the right 
of the patentee was invaded was the proper theatre of trial i 
for there, and not elfcwhere, the caufe of aftion arofe. So 
in an aAion for an efcape, unlefs particularly cii'cumftanced, 
masy reafons occur why a trial fhould be had in the county 
finom which the prifoner fled. A fherifF ought not lightly to 
be caUed out of his county : the witnefles alfo muft, general- 
ly fpeaking, be there ; nor fhould a public officer be fubjeA 
to the oppreffion and expenfe of attending with his witnefles 
at a diftance. Yet we are now called on, not only to fan^lion 


NEW- YORK, this prafticc in one cafe, but to render it univerfal and per* 
}^^l^^^ manent •, or, in other words, to declare, that every fheriff, 
Bogcrt &anoth. however diftant he may refide, fhall anfwer in Albany or 
Huicth. New-York for cfcapes, for no other rcafon than becaufe the 
' ■ ^judgment or writ on which the perfon was arrefted is to be 

found in one of thofe cbunties. It is aftonifhing that aAions 
Oi this kind have ever been regarded as tranfitory : this, how- 
ever, without any decifion on the point, appears to be the 
cafe. Why they fhould be local, has already been fuggefted. 
Much vexation muft be the confequence if we decide (which 
will be the effect of a vacatur) this rule, that in no cafe fhall 
a iheriff have a trial of this kind in his own county, becaufe 
a judgment, which can be proved without the perfonal at- 
tendance of any one, has been rendered elfewhere. Anions 
of this nature are within the reafon of the ^' zOl for the more 
eafy pleading in certain fuits rendering local certain fuits 
^gainft fheriffs and other public officers '" and it would be a 
• Livingfton J. gcx)d rule, in which I* fhould heartily concur, to make all 
Sc** opini*M^f ^ftions of this kind triable in the county to which the officer 
the court, belongs, unlefs ftrong circumftances rendered it improper. 
Upon the whole, we are well fatisfied with our decifion the 
lafl term. It was full as. favourable to the plaintiff as he had 
any reafon to expe£l, and ought not to be difturbed. 
t His honour Radcliff J.f concurred, obferving, however, that according 
referred to the to the Englifh pradlice he took the rule to be, that where 
ritics: 7^Co. iT evidence material to the plaintiff's aftion arifes in different 
Btdwer^s cafe, counties, the plaintiff has a right to eleft the county in which 
wu! 336. Plow, to lay his venue, and to keep it there; that the rule is the 
^^«,^',?^^ '°^' fame, whether the evidence confift of matters in pais in each 

51 Bl. Rep. 140. , , * 

a D. & £. 238. county, or of record in one and in pais in another. Purfuing 

& E.*36j. ^ ^' ^^^^ praftice, the plaintiffs would be entitled to retain the ve- 
nue in New-Tork. But he thought this a queflion in which 
we had a right to prefcribe a rule for ourfelves. Applications 
to change the venue muft in general reft in the direftion of the 
court, and be regulated by the circumftances of the cafe. 

Townfend againfl New- York Infurance Com- 

MOTION for a commiffion to examine. This caufe had 
{>een once deferred for want of teftimony, to acquire which 9^ 



commiffioD liad ifiued. The defendants afterwards, but pre- new-york, 

▼1005 to the laft circuit, gave notice to the plaintiff that he ,J^!JJ^ 

{houldy on affidavits, (the copies of which he annexed) move Townfcnd 

for a commiffion to examine witnefles, and fpccified the names ^^ „ 7' ^ 

. _ • f n * N« *• Inla Com* 

of the commiffioners. At the time of fervmg this notice, the ^__^_, 

defendants offered to ftipulate not to delay the caufe. The if notice of ap- 
plamlVff did not affent to join in the commiffion, and in a few jl][jj^^"°^ f* 
days ^ave the regular notice for trial. At Ihe circuit an ap- dfy names of 
p&ation was made to poftpone the caufe, on the ufual affidavit ^J^^^ 
of the want of that teftimony, to obtain which the commiffion ^^^^ ^o not 
noticed was to be fued out. The plaintiff's counfel objefting, ,^^clill^^^ 
he had till the next day to produce an affidavit of a former ^«T whether 
delay. Not doing this, the caufe ftood over of courfe. foUow on appU- 

Hoffman now moved for the commiffion. catiom fortune? 

Hamilton objefled to its being directed to the commiffioners 

'By ^€ court. The commiffioners having been named in 
the notice of the motion, and the plaintiff having neither 
joined nor objeAed, is now concluded. 

Hamilton then argued againft the application, becaufe it 
was uncertain how long it would tie up the caufe, and the de- 
fendants had not entered into any ftipulation. 

By iVie court. It is unneceffary, for they take the com- 
miffion zt their peril : let it iffue. 

Hamilton hoped that it would be on paying the cofts of 
the circuit. 

The court ordered them, and feemed to think, that in all 
cafes of delay, cofts fhould follow. 

Clarkfon againft Gifford. 
HARRISON moved, on the ufual affidavit, to change the in covenant of 

«M«nj» fcifin, the venue 

Evertfon. This aAion is founded on a fpecialty : in fuits to where the 
of dus fort, the court does not change the venue. 

Harrifon in reply. The aftion is on a covenant of feifin, 
aSoftiDg, or, as the technical phrafe is, favouring, of the re- 

Motion granted. 

lands lie. 



May x^ Grifwold and another againft Stoughton. 

GHfwold 3c an. ^^ 

T. ASSUMPSIT on a promiflory note. The plauntiffs had 

Stougfaton. proceeded under the aft of the Legiflature, and had entered 
If a de&ult be ^^^ demand of a plea in the clerk's office, without ferving it 
molarix enter- on the defendant, who lives in the city of New- York. Judg- 
J^ ft^h^ «^nt by default having been obtamed, 
it wai inciirred, Pendleton moved to fet it aiide on an affidavit ftating that 
quent proceed! ^o rules had been entered, either for interlocutory judgment, 
ings be fet afide or for the clerk to report damages on the note, offering at the 
the dSSt^' Cwne time to pay cofts, and put in fpecial baiU 
^^ff^*°M^ Riggs contra* The proceedings are regular to the default : 
bis jiitoneat. the affidavit ftates no excufe for that ; and though the fubie-* 
A*ra i7o*d!* ^^ quent fteps are not according to ftrift pra£tice, the defendant. 
Cole. Ca. Prac. being in default, and that default regularly entered, is not en« 
^' titled to favour. The utmoft, therefore, the court will do, is 

to vacate the proceedings from the default. 

Per curiam. As the default is not accounted for by the 
affidavit, it is unimpeached, and therefore muft (hmd : but as 
the fubfequent proceedings are irregular, they muft be fet 
aiide, with the ufual liberty, however, for the plaiotifis to per^ 
feft their judgment this term, if they can* 

Manhattan Company againft Herbert. 

Trial by record HOPKINS movcd for a rule to bring on a trial by record. 

to be on notice. t» • rw^ . « « i i i i « 

Sec Knap v. By the court. Trials by record are to be brought on by no* 
Mead, Cole. Ca. jj^^^ jj^ ^^^ f^me manner as cafes for argument. 

Livingfton againft Delafield. 

After ftipula- THIS caufe had been put off on the ufual affidavit of ab. 
vdli' <m^fpcdla ^'^^^^ of a witncfs, in expeftation of whofe return the plaintiff 
circumftanccs had ftipulatcd to try peremptorily : on his not doing fo, the 
excufe, and not defendant had, on a former day, moved for judgment, as in 
grant judgment cafe of nonfuit, for not proceeding to trial 5 but not fucceed- 

as in cafe oi non- . - , ^ * . , , 1 «. 

iuit. ing, and the caufe not havmg been brought on accordmg to 

the fecond ftipulatlon, the motion was now repeated. On the 
part of the plaintiff, an affidavit was read, flating that the wit- 


neft was a teabnng man^ and had never been within the ftate new-torr, 
of Ncw-Tork fincc the fuit commenced, and that the ftipula- ^^^ '^3- ' 
tioQ to try was in ezpefhition of his return. 

Per curiam. The witnefs having been conftantly out of the 
fiate ever fincei!be/iiit was commenced, and being a feafaring 
man, fonve inddlgence is due firom his way of life. The do- 
fendaxit therefore can take nothmg by hb motion. 

Bedle & ux. againft Willett, 

BY the court. The notice of a motion to refer muft con- ^ «. 

_ r ^i_ r n-ii . Pradice on re- 

tarn the names or the referees. The court never nommates ferring a caufe. 

them. But the making the motion b not confined to the firft ^^ ^ ^^'J 

day of term : notice may be given afterwards, on fhewmg a Y. 347, 8. 

teafonable caufe for the omiffion. 

Edmund Seaman againft John Davenport and 
others, tenants in poITeflion. 

IN partition, after fervice of the petition and notice, Hop- Praaice la par- 
kins moved for a rule to appear and anfwcr. The court at ^^^^ 
firft d]ong\it this a rule of courfe ^ but on the counfel's ob- 
ferving, that proof of fervice was by the aft required to be 
made to the fatisfaftion of the court, and that the manner of 
the fervice would, according to the aft, vary in particular 
cafes, the court feemed to coincide, but faid that the rule 
mnft be drawn up as the party fhould be advifed. 

John B. Church againft the United Infurance 

THE plaintiff had obtained, in laft January term, an order 
cf watt for the verdift recovered in this caufe to ftaod, and 
; to be given accordingly, unlefs the defendant fhould, 
. days before the next ^* Jtttings*' in New- York, give 
I to the plaintiff that a commiffion iffued in the fuit had 
], in which cafe there fhould be a new trial, and 
lit fMnriff at liberty to amend, &c. The clerk had drawn 
Vr^dbfrnk before the next ** circuit.** The plaintiff had given 

Mifprlfion of 
clerk in draw^ 
ing up a rule 
amended on ap- 
plication, and 
the plaintiff no* 
ticing to the ad- 
verfc party the 
error, may have 
the fame benefit 
bten righu 




NEW- YORK, immediate notice of the miftake to the defendant's attorney, 
v^^!^^ and that he fliould be prepared to try the caufe at the fittings. 
John B. Church The defendant not having noticed the return of the com- 

Hamilton moved, that the rule be amended to " fittings,'* 
and be made abfolute for judgment. Ordered accordingly. 

James Everitt, Surrogate of Orange County, 


The People of the State of New-York, ex, rel. 

Charles Beach. 

Peremptory HOFFMAN moved to enter a vacatur on a rule for a pe- 

afidc on"in&- t^mptory mandamus, and fet afide the mandamus which had 
^jjf unfairly been iffued on the following fafts t 

A rule was obtained in July term 1802, that defendant 
ihew caufe, by OAober term, why a mandamus fhould not 
iflue, compelling him to proceed in a caufe then depending 
before him, concerning the will of Thomas Beach. 

A return was made to this rule, which, from the defendant's 
counfel being unavoidably detained on his way to Albany, was 
not filed until the third day of the Odtober term. 

On the firft day of OAober term, Charles Beach attended, 
and obtained a rule for the mandamus : and on the third day, 
on filing the return, that rule was vacated. 

Notice of the vacatur was given to the perfon who had 
a£ted in behalf of Beach, and obtained the firft rule ; but 
Beach had previoufly left Albany, and the mandamus ifiued. 

At the lad term Mr. Colden was charged with the bufinefs, 
to make the propef application to the court, and to oppofe a 
peremptory mandamus. On Mr. Colden's way to Albany, he 
met Mr. Morton, the attorney for Beach, when it was agreed, 
that all further proceedings (hould be ftayed until the prefent 
term. Mr. Colden therefore did not further attend to the 

The relator Beach attended at Albany the clofe of the term, 
employed other counfel, and obtained a rule for a peremptory 
mandamus, which has been iffued. Motion granted. 


Seaman and othcrt againft Drake. ^;^25^ 

A MOTION hid beeA made laft term on the part of the 
defiendant's bail to vacate the judgment and all fubfequent pro* 
ccedings. The fafti of the cafe were thefe : ' 

In A'^Vi tcnn 1800, final judgment had beeh regularly en- ^^%^^ 
tercd, wad 2 capias ad fatisfaciendum againit the body had if- under the^l- 
fucd. In July term following, the tmt was returned cepl SSkru^X 
corpus in cuftodiam i on which the defendant applied to fet ud hit bul af- 
wBde the judgment and execution on an affidavit of merits^ Ll, they may* 
and that his attorney, who refided two hundred miles back, ^twithftaodim 
did not know of the alteration in the rules of praflice, by ntm enteral' 
which the defendant was to plead in twenty days, and not as ^^^^^^°*^ "* 
before, in the next term* The judgment was accordingly fet 
afide on payment of cofts, and a ftipulation to plead in twenty 
days. Mo plea being given, in OAober term i8ot judgment 
was confirmed. The roll had been carried in, cofts taxed, 
judgment docketed, and the roll marked as filed, but the clerk 
had omitted to fign it. A capias ad fatisfaciendum was iflued, 
dire£led to the {heriflT of New-Tork, and returned not found. 
In January term i8oa, another capias, but not a teftatum, was 
dhtdied to the Iheriff of iTlfter, on which nothing was done» 
In Apr\ term itol, a capias ad refpondendum was ifliied 
againft the bsul on their recognizance. In July term 1802, 
another. In September 1802, another. In Odober term 
1Y02, another. In January term 1803, returned taken. The 
applicmtton firft mentioned was then made on three grounds : 
Firft, That the proceedings were irregular, the roll not having 
been Cgned by the clerk purfuant to the law of 24th March 
1801, chb 75, f. 7* Secondly, that there was no teftatum ca- 
pias iffited to the iherifi^ of Ulfter. Thirdly, that the principal 
had been difcharged undef the infolvent law. 

Per cnriam^ On the firft point, we confider the omiflion 
of the cletk*s fignature as an error of our officer. This ought 
BOl to prejudice the plaintiff, defendant, or any other perfon. 
Hic jodfiment was docketed as the ftatute requires,* and • s^ft^J^arch 
; the world has the due and legal notice of its exit- i, 3. 
On thefe principles, we, the laft term, ordered an 
nnnc pro tunc, and the fame muft be done now, 
^ordning the fignature of the clerk to be added in the fame 



May 1S03. 

Seaman & a). 



JuIjT t«nn z8o«. 

manner. On the other two points we will| as the counfel re^* 
queft it, hear them at a future day. 

Hopkins now moved for leave to enter an exoneretnr on 
the bail piece, and produced the difcharge of the principal 
under the infolvent law of the ftate. By this it appeared, that 
the defendant's eftate had been afSgned by order of the court 
of common pleas of the county on the 25th of September 
1 80 1, and the defendant difcharged by the fame court on that 

Colden contra. The bail are too late in their application 
for relief. Procefs againft the bail was returned cept corpus 
on the firft day of January term laft- They were therefore 
in eight days after abfolutely fixed. 

Per curiam. On Friday, in the fecond week of the laft 
term, a motion was made to fet afide the ca. fa. iflued in this 
caufe on two grounds: x. Becaufe it ought to have been a 
ieftatum writ, it having lilued into a county different firom that 
in which the venue was laid. 2. Becaufe the roll was not 
iigned by the clerk, and the record was therefore incomplete, 
and the judgment irregular. 

The fecond objection we coniidered as a mere clerical 
omiifiony and it was difpofed of at once by permitting the 
clerk to add his iignature to the roll nunc pro tunc. The 
confideration of the firft objeAion, on account of the prefiure 
of bufinefs was poftponed till the preient term ; and it being 
evident that the object of the motion was the relief of the 
bail, the proceedings againft them were in the mean time di- 
reAed to ftay. 

Another motion is now made for a rule that an exoiteretur 
be entered on the bail piece, founded on the irregularity of 
the ca. fa. as above ftated, and alfa on the further faA that 
the principal was infolvent, and was difcharged under the in^ 
folvent aft on the 25th September 1801. The ca. fa. was re- 
turned non eft in July term laft, and the action againft the 
bail b ftill pending. 

It is now objedted, that the bail ought not to be permitted 
to avail themfelves of the defendant's difcharge, becaufe it 
was not a ground on which the motion depended at the laft 
term. But this cannot be a good reafon to charge the bail 
if they are otherwife entitled to relief. 

In the cafe of Van Alftyne ads. Brinkerhofi^ we permitted 




tn exofieretiir to be entered on an application firom bail under new-york, 
fimilar circumftances. In that cafe the principal was alfo dif- ^^^ '*^5- 
charged under the infolvent ad before the bail were fixed in s^^I^^TSo. 
law. The fuit however proceeded againfl the bail, and the ^2l 
eight days after th.c return of the capias againft them had ex^ 
pired before thgr made their application for relief. We de- 
cided, that 25 (hey were entitled to have the exoneretur en- 
tered before they were fixed, and had barely omitted to have 
it dbne, they had not forfeited that right while the aAion was 
pending againft them, and th^it the only confcquence was 
ffiat they fubje^led themfelves to the payment of cofts. 

The h£ts in this cafe in fupport of the motion made this 
term are fimilar, and we think the former dedfion was equi- 
table and proper ip favour of hail, an^ ought to govern the 
prefent. It is therefore unnecefiary to give an opinion on the 
firft ob^efUon made on the fprn^r motion. 

Let the exoneretur Ijsp czitei:ed op the payment of cofts.* 

* Id the ooorfe ^ tbe ai]gument a cafe of Riddles v. Mitchell, tnanucajptor 
6f Coyier, war alhided to. 'The counfel engacrcd in that caufe has £iToured me 
with a ftaciq^t of the fiiffts, which were as follows : 

Riddles v. Mitchell. 

THB original adim Was broug^ in the mayor's court of the city of New- 
VoiV, and iodgment obtained therein. The dcfeadant brought a writ of error 
i c iuma \Ae to um cout. Pdiding the writ of error, the doendant in the ori- 
nnal fuk was di£char<ged under the infolvent law. Errors not being duly af- 
Sgned, the defendant nooprofled the writ, iifued a ca. fa. in this court, and upon 
a return of a nan eft inventus, brought an adion of debt againft the bail on 
thdr recoenixance in the original fuit. After declaration, plea', and demurrer, f Bn^Cn v. Kint. 
the defen£uit applied to tjic cpurt to day proceedings. It was contended on A's- ^S* *** *^*^ 
the put of the prefent pUmtiff, that the defendant came too late with this ap. ^{^"^Af?! 
pliattioo, having plead^ t9 the aSion. But the court, on the authority of imHrr hat) brni ^-- 
the cafe in CanEew,f ordered the proceedings flayed. thSrt"^rfthfu* 

lltaC nil uhirli tlir 
bnU lad bceo ar- 
_ . — — rrflrd. 

Abraham S. Hallet againft Daniel Cotton, 

THIS caufe was tried at the fittings after January term f "ew7r "af, ^Jhc 
lifta when the jury found a verdift for the plaintiff for 866 court will not 
doUan 20 cents. The defendant obtained a judge's order for 1^^^,,^ ^f %. 
aflwrof further proceedings, until the next term, for the pur- vcrdiA, or rum 

' !• . 1 admitted diu- to 

pm of then movmg for a new trial. be brought in, 

Htwes now moved, on the part of the plaintifF, for an or- *j|;;^^jf,;j;^,*^'^^^ 
At^ that the defendant bring into court the fum found by the fuWcnr, and ob- 
^jWkth cofts of fuit; and that in default thereof, the or- ;^;:.t;^^undT 

ti:e Bankrupc- 


NEW-YORK, der to ftay proceedings^ be difcharged. This application was 

J^JJ^^^ founded on an affidavit ftating, «* That fince this caufe hag 

Halltt been at ififue, the fpecial boil has been declared bankrupt and 

Q^H^ difchargcd under the bankrupt law of the United States. 

.,,..,..^,..^ That) on the trial of this caufei a balance waa admitted by the 

defendant's counfel to be due to the plaintiff of about 500 

dollars. That, at the fittings in November laft, on the ap* 

plication of the defendant this caufe was put off for tluit 

court, on the condition of payment of cofts : but that thofe 

iofts, although repeatedly demanded, were not yet paid.'' A 

further affirmation of the plaintiff was read, ftating '^Thaf 

from the cif cumftances of the defendant he was in danger of 

lofing his faid debt, unlefs the money was bronght into courts 

Or the rule to ftay proceedings difchargedt but it was aor 

knowledged a copy had not been ferved. 

For the plaintiff it was faid, that a motion for a new trial 
was an application to the equitable difcretton of the court, to 
relieve from what in the opinion of the party, was an errone- 
ous or oppreflive verdift. That it was a maxim of law, foun* 
ded on principles of equal juftice, '^ that he who feeks equity^ 
ihould do equity." From the affidavit it appeared, that 
the defendant had admitted on the trial that the plaintiff was 
entitled to recover about 500 dollars^ which fum entitled him 
plfo to full cofts. Before, therefore, the court would fuffi^r 
the defendant to be heard on a motion for a new trial, they 
would require him to do what he acknowledged to be juft. 
The bankruptcy, and difcharge ot the bail, and the circum- 
fiances of the defendant, were additional reafons for requir- 
ing the defendant to bring the money into court, to abide the 
event of the fuit. That, from the great number of cafes now 
before the court, it was not in the leaft probable, that the cafe 
to be made in this caufe, could come on in its order, and a 
deciiion be had thereon, in a ihorter time than 6 or 9 months : 
by which time, the defendant, from his prefent circumftan- 
ces, would doubtlefs be a bankrupt, or, as his bail were alrea- 
dy bankrupt, he might abfcond. Under fuch circumftances^ 
de/ay was equally prejudicial as a denial $fjujiice»> It alfo ap- 
peared that the defendant was now in contempt^ and liable to 
an attachment for non-payment of cofts incurred on putting off 
the trial of this caufe, at a former fitting. That it was a 
(landing rule of the mayor's court of the city of New-Yorl^ 



daty "upon crcrj motion for a new trial, the defendant new-york, 
Ihoidd, within eigbc days, bring into court the fum recovered ^^ ^^^ 
bf the Terdift, with cofts ; and that in default theseof, the 
phiiidff have leave to proceed.'* That, although this court 
ought not be difpoled CO go the length to eftablUh fuch a rule, 
in all cafes J it was believed the peculiar circumftances of this 
cauCe were iiich, that they would not hefiute to make the •seeGilMpM 
order now reqoeAedi or atleaft, for fuch fum as was admit- jj'r^j?^"^ * 

tfu to be due, with cbitS* iDftdyeocy inca* 

Bogert faid the bbjeft of the motion vras perfeftly new and ^ ^"^ 
unprecedented. Ca. Pnc X19. 

Per curiam. The prafUce of the mayor's court, in obliging x card adi 
tbe amount of the verd»El to be brought into court on a mo- Kuroy & an 
tion for a new trial, has never been adopted here. The in- ^^ whenever 
iblvency of the bail* is certadnly not a fuffident ground to in- ^P^ ^^* 
duce us to make luch an order ; and a copy of the affirma- an affidavit, 1 
eioti, refpefting the defendant's circumftances, has never been ^P^*"^^ 
ferved on him : of that, therefore, we can take no notice.f Grove mmtt 
But let it be underftood, we do not mean to fay, that had it ^^^^ "^^ 
been otherwilc we would have granted the motion. plementaiy nm- 



James "W. Crilbert agalnft James C. Brazien 

PER curiam. The qucftion is, whether the fhcriff is en- f^J *|^ ^^ 
titled to fees on levying a fine. The ftatute direAing the not liable to tiu 
mode of making the levy, declares it fhall be done without *»^^'«^- 
fee or reward. The fee-bill gives a fee; but does not fay by 
whom it fhall be psud. We all know how it has been: the 
fee has been charged by the (heriff, in his accounts. This, 
we think, is the regular praAice; for it cannot be demanded 
from the perfon who has had to pay the fine. 

L. & N, Vandyck againft Van Bcuren & Vot- 


ttSL curiam. Wherever a cafe is made, with liberty to Liberty to ton 
tarn k Into a fpecbl vcrdift, execution muft ftay of courfc, y^*j ^^'^^* 
A dre next term after the decifion is given, that, if either ftayt execution 
fiill be diflatisfied, there may be time to make up the fpecial 



May 1803. Chriftian Heyl againft Samuel Burling, 

TROVER, to recover the value of two logs of mahoganyt 
tried at the New- York iittings in June i8o2| before Mr. 

A mate of a Juftice Radcliff- 

velTcl having a On 2 cafc referved, thp following fafts appeared : 
tomqiumtityOTt That the plaintiff bought of one Bgnfall, mate of a veffel^ 
of a Gir^o, by three logs of mahogany, for one hundred dollars — that they 
cannot, af^er a were lajring on a wharf, and part of the conCderation money 
fale of the whole pajj. That Mr. Roget, herein after named, was prefent, and 

cargo by the '^ ^ . ^ , , , . , , 111. 

coufignce, pick a converfation palled between him and the mate and the plain- 

pa«5^°a/rfcu'' ^*^» ^"^ ^^^ *^ ^^> ^^ °°^ knpwn, 

them' A right Charles Smith, on part of the plaintiff, teftified, that he 

«i|o) dS not ^^ prefent at the purchafe. The logs were pointed out, and 

give fuch an in- agreed for in the prefence of the capt^ of the veffel, and 

aWc tiK purcha- inio^cdiately marked by the plaintiff. This was on Satur- 

fer of it to main- day. On Monday following, Heyl, in the prefence of the 

the confignee captain anfl of the mate, took poffeffion of the logs, and re- 

^** h°^f 1^^^ moved them to a fa^-yard, from whence tl^ey wef e taken, and 
of thofe paiti afterwards l^sft by witnefs, for Heyl, at White-Hall. That 
h[^ fa*ti^aioa°- ^^^ captain, at the time of their removal, fent a perfon to fee 
for, in trover', that they were thofe which h^d been fold, ^md had the pro- 
^oSSiljn muft P^** marks. This perfon examined and took the numbers of 
be flieviii. A re- the logs. Two of the logs being afterwards mifCng, the lyit- 
tot'wifncr';^^ "^^^ ^^^^ ^" company with Hejl, to the defendant's yard, 
ter lu's having where he faw the logs. Hey/ claimed them as his, and de- 
EoTmuke^^hL inanded of the defendant to deliver them to him ; which the 
compstcnt. defendant refufed. That, during the time the logs were on 
the wharf, and before their removal, Roget, the perfon, to 
whom it afterwards appeared in teftimony, the whole cargo of 
mahogany was configned, gave confent to Heyl to take away 
the logs, and made no objection to the fale by the mate. The 
witnefs mentioned, that when he was firft examined, he faid 
the plaintiff had agreed to buy the logs of mahogany at the rate 
«f one (hilling and fix pence per foot, but that it was after- 
wards agreed between the plaintiff and mate, that the plain- 
tiff fliould pay the grofs fum of one hundred dollars, and that 
the fubfequent agreement was in order to get rid of the trouble 
of having the mahogany meafured -, as the logs were not thei; 


Smith, after Jcremiali Marfhall had given his teftimonf, nkW-york 
laid, that the logs purchafed by the plaintiff had, at the time ^^'803. 
of the pnrchafe, been meafured; as he faw the meafurer's Heyi 
marks upon them* J-, 

Jeremiah Marftiall, for the defendant, tcftificd, that he is a "^' 

public meaf urer of timber : that he was employed by Roget, 
to meafurr a cargo of mahogany configned to the faid Roget, 
as the m'tnefs nnderftood from Roget — the captain and mate 
of r^e veflel : That, after the firft day's work was done, the 
mate of the veflel pointed out .a log of mahogany, which came 
from on board the fsdd vefiel, (and which had been meafured, 
marked and numbered, as No. 21, of the faid cargo,) as be- 
ing one of three logs, which belonged to him ; that the mU 
neis, on the next day, before they began to difcharge any of 
the mahogany, reqoefted the mate to mention when they 
came to the other logs which belonged to him, in order that 
they might be put into a different bill \ upon which the mate 
iaid, that he did not own any three particular logs ; but that 
he had a right to make choice of three ; that the witnefs 
might meafiire the whole together, as he had been direAed, 
and that he, the mate, would fettle with Roget for the inter- 
red he had therein : in confequence, the account of the mea^ 
fixrement of the whole of the mahogany was kept in one bill, 
anJ delivered to Roget, who paid for the meafuring. 

Ifaac Roget, the confignee, was then offered as a witness : 
he was objeAed to by the plaintiff's counfel, as incompetent ; 
but the judge admitted him, on being releafed by the defend- 
ant. The point of his admiffibility was faved by plaintiff. 

Rogers teftimony was, that he never authorized the mate 
to fell any of the cargo ; and that the whole confignment 
was ibid by him to the defendant, before the taking away of 
the logs : That he never gave any authority to the plaintiff to 
take away the mahogany : That he never had any knowledge 
of the claim of the mate to any three particular logs, until af- 
ter the defendant had purchafed the whole of the reft of the 
cargo, and until after the plaintiff had taken the three logs 
from the reft of the cargo, which lay all together on the 

Tile plaintiff^s counfel offered to prove other declarations 
aad.admiifions of the captain, as well before as after the fale 
oC vahoigany by the mate to plaintiff, that fuch fale was by 


MEW- YORK, hk, the cuptam'f knowledge and coofimt j Jnfiftlng he flood 

^^^|[*^ in the relation of igeat fiwr the confignee i but the teftimony 

Heyi was rqe£ked. This alfo was faved by the plaintiBfs coun&l. 

^Jv The defendant read a depofitlon of a clerk in the counting* 

^'^' houfe of Roget, ftating, that he was od the wharf at the foot 

of Re£toivftr«et» when the plaintiff and feveral other perfona 

were removing three logs of mahoganyi No. 21, 50 and 52^ 

which the witnefs forbade^ informing them Roget had fold the 

logs to the defendant ; that, witneis knew the whole cargo 

. comprifing the three logs above mentioned, were coniigned to 

Roget, who has accounted for the fame to the confignor ; 

and that the whole were fold to, and paid for by the deficnd* 


The plaintiff then offered to give in evidence a depofidon, 
duly taken, made by the mate, to prove plaintiff's intereft in 
the logs, and Roget's confent to the £elUng the logs in que& 
lion to the plaintiff, and which was iniifted upon as proper tcC* 
ttmony, there being no evidence of the mate having warrant^ 
ed the logs to the plaintiff, as his property : but the Judge 
was of opinion that fuch teftimony was inadmiflible, unlefs the 
mate was rekafed by plaintiff ; which opinion was faved bf 
the plaintiff^s counfel. 

The plaintiff then produced a releafe ; and the witnefs to 
its execution being called upon to prove it, teftified, that he 
was prefent at the time the depofition was taken, and on his 
j^turn to his office, being an attorney, and acting in behalf of 
the attorney for the plaintiff, fearful left an objeAion might be 
taken to the intereft of the witnefs, he drew a releafe, and the 
fame was executed by the plaintiff, and delivered to the mate 
in his office, who left it with witnefs, for the purpofe of being 
ufed on the trial. That this was done in the courfe of half an 
hour after the depofition was taken ; and before the plain- 
tiff, witnefs and mate had feparated, after they had left the 
place of examination. That the defendant's attorney crofs- 
examined the mate, and fuch crofs-cxamination was in writ- 
ing, at the end of the mate's teftimony, as proven on part of 
the plaintiff; and a confent was fubfcribed to fuch examina- 
tion by defendant's attorney, as follows : 

" We, the fubfcribcrs, attcMmies for the plaintiff and de- 
fendant refpeftively, do confent, that the above depofition be 


frtd in evidence upon the trial of this caufc ; faving and re- new-vork, 
fenring the exceptions to the admiffibility of the tcftimony." ^*^ "*°3, 

Under thefe circumftances, the counfel for plaintiff moved^ 
that the depofition ought to be read in evidence ; but it was 
rejefted. This point was alfo referved by plaintiff. 

The yx&gc charged, that it was abfolutely ncceffary* the f it is fappofed 
plalnufiPAouid fhcw an acquiefcence on the part of Roger, to f^""-^^. l" 
the fale by the mate ; and that the confent of the captain, or alluded to. ; D. 
his z&s, and that of the mate, were not binding without fuch ^Tlufold cifci 

acftriefcence. make a diftinc- 

Thc jury found a vcrdift for defendant. ^^ J^^u 

The plaintiff now moved to fet afide the verdift for mifdi- inpoffeffionand 
reftion in the judge, both in his charge, and rejection of pro- That £ the lira 
per teftimony ; and for a new trial to be granted. ioftaace. au ex- 

Woods. A releafe to Uonfall, the mate and vender of the ^^ ncceffiiry; 
pAamtiff was totally unneceffary : the court ought not to have ^ ^^°*** *' 
aiked it, as he was competent, being equally liable, howfoever stoughton, 1' 
the caufc was determined : firft, to Roget the confignec, and ^^ ^^- ^.^^ 
alfo to the p/aintiff, as purchafen Pcake, Lawof Evid. 113.+ denied to be 
And peculiarly fo, as Bonfall had fold without any warranty; p^^mau ? D. 
and therefore, had never afferted any intereft in himfelf.f &E.57.58.JVe 
Peake n8. " If a vendor of an eftate covenant for the title, ^7^^* 
** or warrant the premifes, he cannot be a witnefs to fupport § The reafon of 
" the title of the vendee, in an aftion againft him by a third nations fs,^ thlt 
" perfon for the premifes. 2 Roll. Abr. 68c. But a vendor, with rciiia to 

« i_ J r 1 . 1 • pufchaftf* of 

•• who docs not covenant for the title, or enter mto any war- lands, the max- 

" ranty, is a good witnefs. Bufby v. Greenflate, i Stra. ^™ *»*' .." "Y'-"^ 

J' o J ' emptor appliCi: 

•* 445-"J But if the court fliould be of opinion a releafe was io thofcof chat- 
neccffary, fuch a releafe was given and offered. The circum- ^^^"jl^[.*'^^iy'.' 
ftance of its being after the examination, is immaterial, from ney had and rv.- 
the peculiar fafts ftated in the cafe. If Roget, the confignec, f^"^^ "^^^^^^^ 
was competent, being releafed by the defendant, Bonfall, the back the confi- 
Tendor, was as much fo, on a releafe from the plaintiff. Be- au^^.j^" mcntoi' 
fides, the declarations and adnaiffions of the captain were full a mortgage, 
evidence for the plaintiff. He was the agent of the confignec ; to be a forgery, 
and, as in that capacity he confented to the falc to the plain- »f *>ona fide 

•4^ •« .-r^ ■ *• itriiT»i«ii» tranaftrrud, and 

ti^ It bound Roget, and confirmed the lale by Boniall : the the aiHgnur \va% 

not covenanted 

• Hii Honour a real charge was, as the reporter \s from hieh authority hiformcd, for '^c goodnds 

by nomcuis of the Ycry pofit:ve kind fLatid by ilic cafe ; but qualified with rca- ™ the gtlc. 

kmkffjkva the natorc of the aclit.n, the circumftarc-.i of the eafc, ^z. and after pre<r v. Hob- 

^aPaug the rndcncc given, and pointing out to the jtiry how the law was., aivord- bcdijDouj;.055. 
tagnk tKe tcfiimosy Ihould be tc-licvtd, his Honour kit to i^zcni to dctenuiiii. on 
iu wc^ht. 



N£W-YORK, rcjedling, therefore, thefe declarations and admiffions, was 
^^^2[j^ contrary to law. From the fiifts it appears, the plaintiff had 
peaceable pofleifion under a good title ; and at all events, his 
pofE*ffion alone was enough to prevent the defendant from 
taking the logs tot of that pofleffion ; for it was as much con- 

'Bxt fee a Ch. tinued while the logs lay at White-Hall, as if in the plain- 

HaniiVe ^^ ^^* T**^' ***^^"8 ^^^ ^^^ thereby him. 

Ne!tiion«e»Nc!t. Boyd for the defendant. There is not an equal liability in 

Ch. Rep. 118. Bpnfaii^ He is not liable to the defendant j for there is no 

privity between them. The defendant purchafed of Roget, 

• The prind- ^^d Roget is liable to him, not the matS -,♦ for he is liable 

pic 11, that the , ^ - - ^ .«..«. . . 1. 

UabilitTmuftfce Only to the purchafer, the plamtiff; and therefore liable to 
JhT^^^ct 'hi ®"^y ^"* ^^ *^ parties in the caufe. Therefore, admitting 
the fuit, tnd not the principle of equal liability, (which he did) it did not apply ; 
it^lbwL^* ** ^^ *^ ^'^^^^ ^^S S^^^^ after the depofition offered, the 
Ml T. Boft- teftimony was properly rejeflcd. The reafon why a releafe 
¥nc , I tra. j^ neceffary, is to do away the effeft of the influence of intereft j 
but if it be given after the teftimony, the intereft has already 
had its effeA. The declarations and admiiSons of the cap- 
tain could not be received ; for he is not the agent of the 
conflgnee, and his agency terminates on delivery ; which had 
here taken place, and a fale been made to the defendant. He 
denied, therefore the pofleflion of the plaintiff; as it had been 
transferred by the confignee to Burling ; and as to the war- 
ranty, in falcs of chattels it was not neceflary. 

Radcliff J. I underftood the mate's claim to be founded 
on his office, as a privilege annexed. 

Woods in reply, iniifted on his firft pofitions. 
Per curiam. The faAs of this cafe arife merely fi-om the de- 
pofitions of witnefles fubmitted to the court. From thefe it 
appears, that the plaintiff purchafed of one Bonfall, the mate 
of a veffel, three logs of mahogany } that at this time, the 
captain and confignee were prefent, as is ftated by the wit- 
nefles of the plaintiff. On the cafe, as prefented to us, there 
is fome degree of contradiction in the teftimony, which, as it 
was laid before the jury, they, no doubt, duly eftimated. In 
this action, property and pofleflion muft be fliewn. The on- 
ly evidence of this property and pofl!effion is from the tefti- 
mony of Mackworth and Smith. They ftate, that the price 
contracted for between Bonfall and the plaintiff, was one hun- 
dred dollars ; and Smitb| as a reafon for a grofs (um being 


igrecd opon, adds, ^' that it was to fave the trouble of having new-yor] 
the mahogany meafured." Mariball, the public raeafurer, ^^T *^3. 
dcpofes, that he did meafure the whole cargo^ and that the lilij^ 
mate fold them after they were (b meafured. That^ at the ": 

mate's rcqueft,ibe charge of meafuring was debited to Roget, ^' 

the conii^pee, who paid for it $ and that the mate himfelf 
acknowledfged he did not own any three particular logs, but 
that he had a right to make choice of three^ and would fettle 
for it with Roget. After this teftimony is delivered. Smith 
recolieAs that the mahogany had been meafured, and that he 
fiw the meaforer^s' marks on the logs i though before that, 
he affigns its non-meafnrement as a fpecific reafon for a grofs 
price of one hundred dollars being agreed as the purchaie 
money. After this, a releafe being produced from Burling, 
the defendant, Roget, the confignee, was admitted very pro*- 
pcrly as a witnefs^ and he is followed by his clerk. Under 
thefe circumftances, it muft be taken for granted, that the jury 
weighed Smith's credibility ^ and if fo, there could be no 
doubt that there was neither property nor poiTeffion in the 
plaintiff. It is urged as a reafon for a new trial, that the 
judge's charge precluded certain teftimony ; or at leaft, pre- 
vented the jury from weighing it : for, the judge charged 
that it was neceflary to fhew an acquiefcence in Roget. But 
it muft be prefnmed to have been underftood by the jury, 
that Roget's acquiefcence was neceflary for Ileyl to ihew 
property in himfelf; and, on this point, we think, that the 
mate, Bonfall, muft have (hewn property, as the confignment 
was to Roget entirely. The teftimony of Smith was vcpy 
properly difcredited, and the verdi£l ought to ftand. The r«- 
kafe of Bonfall, being after his examination, and when the 
intereft he had, muft have had its full influence and operation 
on his teftimony, came too late, and could not be r.cceived, 

Jackibn on the demife of John Jauncey, againft 
Martinus Cooper and James Styles* 

THIS was an aftion of cjeftment, in which the defendants ^^ «'^^'f "'^^ 
levered in their ^pearances, and entered into fq^arate confent detcudants ti 
mlet. The plaintiflT, on motion, obtaioed leave to amend by JJJ^T J^^'i^:,,* 
the name of the kffor of the plaintiff" fioin John to and cut 

i iii; 


K£ W.YORK, William Jauncey ; but the notices on which the motion was 
^^' ^•. founded were entitled as above, againd both defendants. 
]ackfon Benfon now moved to fet afide the proceedings for irregu* 

^* laritj, contending, that as the defendants had fevered, the ori- 

' ginal fuit became divided into two diftinft caufes. That there- 
fcMirate confeat fore there (hould have been two feparate notices, each entitled 
lil^ kadSf *^^ againft one defendant, and ferved on the diftcrcnt attornies of 
muft be enutled the defendants. For there was not then any fuit in exiftence 
3!c*Mmm<mce^ fuch as that in which the notices purported to be given, 
mcnt, but emch Hopkins contra for the plaintiff, infifted the notice was 
l^cd'with I pcrfcftly regular, and likened it to the cafe of a fuit againft 
fqiaratc nodcc, two, where one is outlawed, yet the proceedings arc entitled 
againft both. 

Per curiam. The objection taken againft. the notices and 
rules is, that as the defendants appeared by diftin£l attornies, 
and entered into feparate confent rules, thefe circumftances re* 
quired feparate and diftinA proceedings, and ought to have 
been entered and entitled as feparate ; that is, that the no-^ 
tices {hould have been feparate, addrefled to each party, and 
the rules entered accordingly. The notice given to Van 
Schaick, attorney for Cooper, is entitled againft two : and it 
is on that notice the application is made. The court are of 
opinion that this is the regular way in which the notice (hould 
be entitled, though each party (hould be ferved. It does not 
follow, that appearing feparately, and entering Into feparate 
confent rules, juftifies or requires a different practice : for 
pleading feparately does not make feparate fuits. The notice 
muft be as the caufe was originally entitled, and a copy ferved 
on all the attornies ; for otherwife it would imply a difUnA 
iflue in each fuit. 

Motion refufed with cofts to the plaintiff*. 

Bell and others againft Rhinelander. 

Partition. ^^ partition only the notice and affidavit of fervicc is read, 

not the petition. 

Jackfon ex deiii. Nicholas Low and ors. againft 
James Reynolds. 

ON an affidavit ftati'ng the death of one of the leflbrs of 


the plaintiff^ firom belief, information, diligent fearch and NEW.york» 
enquiry, ^r ^803. * 

RiggSf on the behalf of the defendant, moved to ftrike out ^^^Idkfo^^ 
of the declaration one aount wholly, and in all the others the ^- 

name of Drake, ^7^um». 

HoweV cQDtra. The application now comes too late, being ifthepUintiffm 
after entcriog mto the confent rule : at all events the affidavit «)«^'«««.«»nt 
fbouU /hte that the fa£l was unknown at that time. In ad- peribiuwhrm 
ditibn to this he mentioned, that from the counter affidavit ^' ^ ^'^'^ 
vriuch he held, it appeared the defendant had heretofore con- terii^ into the 
iented to give up pofleffion, having failed to try according to J^f^i^^J, 

ftipulation. havccheirotmet 

Per curiam. The motion muft be granted. It has been d^u^f ^ 
befinr decided, that a defendant may thus come in and move, ^^^ without 
on the death of a party before the commencement of the fuit. Syy\^^^ 
As to the objedion that the application is out of feafon, the »"«» *r'wig 
anfwer is, that it is never out of feafon when on the ground tiC ^ 
of an original irregularity in the plaintiff himfclf.* Therefore • s^e Dit« adt. 
the not coming in earlier cannot be urged. The affidavit far- Butler & others. 
ni{hes fuch evidence of the fafts as are prima facie fufficient ; ic2. 
and if not true ought to have been denied by the plaintiff, 
cfpeciaUy at it is in his power : for the attorney of the leflbr 
may, vxj certainly muft, know if his client is alive. 
HowcU hoped the cofts would not be allowed. 
Per curiam. It does not neceffarily follow that the attorney 
of the plaintiff muft know of the death of one of the leflbrs. 
He may have examined into the title on behalf of one perfon 
aAing for others equally interefted, and feeing a number of 
names neceflary to be made parties, he may think them all in 
eziftence, and the affidavit of the defendant be the firft notice 
of the death of any one entitled. The cofts ought to be paid 
if the fa£l was known fooner : and the application for the ob- 
]c& of this motion ought to be made as foon as the right to 
apply was difcovered. The court, however, referved the con- 
fideration of cofts till the next day, when they denied them, 
faying the plaintiff was irregular from the beginning ; and 
though he might not have been in fault, there is no reafon 
far allowing him cofts, when it is to have his proceedings rec- 
tified, that the defendant comes before the court. 

not excofi: cofti. 



^^l^ Sheffield againft Watfon. 


▼. HOPKINS for the defendant moved for judgment as m 

Watfon. ^j^ijj q£ nonfuit for not going to trial. 
AmiftakeliTan Woods contra. The caufe wis called on, but as there were 
attornef, of a Other caufes on the day calendar, one of which a£hially occu- 
Si^^wK^ pied the court the whole day, the plaintiff's attorney not being 
jadpnent as in quite ready, thought he (hould be entitled to bring it on the 
^i^^^to »c*t ^*7» ^^ ^^7 calendar not being gone through; but 
trial, but will found he was put down to the bottom of the calendar for the 
circuit. This therefore is a plain miftake of the rules of prac- 
tice, which ought not to injure the plaintiff. 

Hopkins. The plaintiff clearly was not ready ; therefore 
equally in fault, whether the rule was as he imagined, or not. 
Radcliff J. A£Ung under that belief, he did not prepare 

Hopkins hoped the plaintiff would be ordered to ftipulate 
and pay cofts. 

Per curiam. The excufe is certainly not fufficient to ex- 
onerate from cofts. If admitted in one cafe, it muft be in all; 
and however the good faith of the plaintiff's conduA, and 
our belief of it, may deny the judgment moved for, to refufe 
cofts would do away the effeA of the rule. The plaintiff muft 

Fallmer againfl Steele and anpther. 

On producing HOPKINS moved to amend a count in the declaration, in 

original wSt, Conformity to the original writ, (a certified copy of which he 

dedaration a- produced) by ftriking out the words *' town of Hcrkemerj" 

"*^ and inferting the " town of German Flatts." Ordered. 

Maria Remfen, adminiflratrix. againfl Tofhua 

Oaa non-emi- »/• 

merated motion llaaCS* 

for irregularity,. 

entcredbto,but MULLIGAN moved to fct afide a report of referees for 
on nicritt irrc- irregularity and on merits. 

Sewn/ Woods contra. In King v. Hughes it was determined, that 

if a motion be made as non-enumerated for irregularity, the 


groand of merits muft be abandoned, though on the merits new- York, 
the BTeguIarity may be infifted on. ^^7 iSoj. 

Per curiam. The rule is according to the deciiion cited. NuflTR^fai 
The application moft be for irregularity only to bring it on ▼• 

as a non-enumerated motion. If merits are united, it be- ^^ °* 
comes cmimented. 

Hun and others againfl Bowne. 

COLDEK for the plaintiffs moved for leave to amend the Amending of 
cafe made by the defendant. From the affidavit of the attorney «fc™«*«* 
for the plaintiffs, it appeared, that the defendant's attorney had 
agreed to give the plaintifFs attorney till the 21ft January laft, 
to fettle his amendments before a Judge at Albany, the caufe 
having been tried in New- York : that by fome accident the 
amendments propofed by the plaintiffs to the cafe made on 
the part of the defendant, had not come to the hands of the 
coun/el who was employed to attend to the buiinefs there, 
until the 22d January : and further, that the cafe made by the 
defendant did not fet forth the merits of the caufe as they 
appeared on the trial- 
Hoffman amicus. In Duff" v. Van Zandt, on a fuggeftlon 
that the cafe made did not contain a true ftatement of fa£b, 
the court granted a new trial after argument and deciiion. 

Boyd contra fiated fome circumffances of ftrifl and unac- 
commodating conduct in the plaintiff^'s attorney, which had 
occurred jn^vious to the agreement mentioned in the affidavit 
read by Golden, and fome declarations of the plaintiff^'s attor- 
ney, that he would hold the defendant to ftrift practice. 

Per curiam. We cannot travel back farther than the agree- 
ment Hated. It appears that the defendant had given the 
plaintiff a time, which from accident he could not keep : the 
amendments were fent with due fpeed, and fo that they might 
haiie arrived at Albany in feafon if nothing had happened to 
prevent it. We cannot let the plaintiff^ fuffer by circumftances 
which he could not controul. The verdiA is in the hands of 
the plamtiff, and the defimdant cannot be injured by a 0iort 



M»y 1803. Anonymous. 


^ ^ BY the court. All caufcs intended for argument muft be 

Cafes for ami- duly noticed before term to the clerk^ that he may enter them 
^ecT"^ oa ^^« calendar. If not fo noticed, they muft go to the foot 
of the calendar, without regard to the date of their ifiues. 

John Halfey againft James and Samuel Watfon. 

Cotirt will not THIS was a motion for a new trial, on an aflSdavit of a 
fHrh^'ere^^i- difcovcry of new and material evidence. The points and 
vidence has been fubftance are fo well and accurately condenfed in the deciiion 
appH^aii^'for" of *l*c ^^^^» ^^^^ »^ « unocceffary to do more than ftate the 

new trials, on judgment. 

accoontofafub- ^ . rrn-* • -.• r - ^ • 1 3 

fcqucntdifcovc- P^T Curiam. This IS a motion for a new trial, and comes 
ry of material 'before US on the ground of a difcovery of material teftimony 
that teftimony fince the trial of the caufe. To fee this, and judge whether 
n, muft be ftat- j^ 5^ material or not, it will be necefiary to ftate the former 

ed, that the r r 

court mayjudge tcftimony and nature of the fuit. 

rf its materia, j^ j^ affumpfit by Halfey the plaintiff, againft James and Sa- 
muel Watfon, the defendants, as owners of the fhip Chefapeake, 
.founded on a negleA in not taldng on board fome tobacco« ac- 
cording to contraA. The witnefs, Heyer, who appears to have 
aAedas agent for the plaintiff, ftates what the contra A was, and 
the time at which it was to be on board. This agreement ap- 
pears to have been made on a Friday. The witnefs enquired 
of the defendant James Watfon, when the tobacco ihould be 
fent down to the veiTel. The anfwer was, Send it down as 
quick as pofiible: in confequence of which, it was fent the 
irery next day. From three witneffes it is fhewn, that the 
principal 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. Thefe fafts, then, are eftabliflied by three 
witneflcs. The captain fwears that, after 4 or 6 hogflieads had 
been brought, he requeftcd the carmen not to bring any more, as 
there were appearances of a ftorm. This the principal car- 
man has, in effeA, denied ; for he fays, he was defired by 
thofe on hoard the fhip, or the captain, to bear a hand ; and 
that he got all the tobacco down by dinner time. Here the 


rcffimony is contradiAoiy. Wc arc fo judge then, if the ma- NEW-york, 
tcrial evidence, as it is termed, that has been difcovcrcd fincc \^L^^^ 
the trial, be really teftimony of materiality. There is one HaUej- 
perfon who fwears, as to the direftions given by the captain, j & S. Wafoik 
The court are o( opinion, that this is not material, fo as to . 
varrant grantjog a new trial. This in ttro points of view : 
The xeftinKMiy goes only to impeach the credit of what has 
been fworn, and not to eftabliih any new faft. It is merely 
coorradi£ting former evidence. In that point of view it is not 
mitsml : nor can it be fo in another, unlefs the defendants 
an go further. The direction not to bring down the tobac- 
co, was to a carman. This is not fufficient ; as Watfon di- 
re&ed it to be lent as foon as poffible. It ought to have been 
to the owner of the tobacco : or to have fliewn, th'^^ the re- 
qneft was brought home to the knowledge of the plaintiff: 
that It vras made to a carman, is not fufficient. The defen- 
dant's affidavit ftates two other witnefles who are material } 
but does not fay to what fa^ they would teftify: we cannot 
therefore judge whether they are material or not. Blackmer, 
it is dated, will teftify, that the tobacco was not marked till 
Monday. This will only go to impeach the credit of tho 
teftimony ; for, three witneffcs fwear to the faft of the mark- 
ing being before one o'clock on Saturday. The captain him- 
ftlf docs not pretend that the reafon for not taking it oa 
board, was the hogfheads not being marked, but only that 
he bad not time. He does not pretend it was not ready to 
be taken on board. New trial refufed. 

Ephraim Hart againft David Hofack, 

ASSUMPSIT for money lent and advanced, for money An accotirfaWc 
had and received i plea» non affiimpfit and payment, w ith ^^^ote ^rrow-*^ 
MDdce of fct-off. The plaintiff proved, and gave in evidence «d» ^on\d be 
the fiDllowmg promiffory note : the note i^ frr- 

•■ Sixty days after date, I promife to pay Dr. David Ho- ^f^^^f^,,^^^^"'^ 
£Kkt or ordeiTj three hundred and fcvcnty-iive JoUiirs, value years, put with 
we'd. N.York, 6th February, 1800. Eph'm. Hart." ^ Ltt^tUw 
The plaintiff alfo proved, that he paid this note when it he would like 
idnc) and in addition proved, and gave in evidence ^!;^„|;[*'^!^JJ;i"^ 
I fkUomvg accountable receipt : eicaion to u- 

•• f nine a ilud«nr, 



NEW-YORK, ^* I promifc to ACCOUNT with Eph*m. Hart for his note 
^!!L'i^ payable to me for three hundred and feventy-fivc dollars, da^ 
Hart ted this day, at fixty days. N. York, 6th February, 1800, 
Ho&ck. David Hofack." From the fafts of a cafereferved, it appeared, 
, that the defendant is a doftor, and alleged that the note was 

fo at to charge intended as an apprentice-fee for taking the plaintiff's fon. 
i^a>S^«ti«-^ In fupport of this defence, the defendant called witneffes, who 
fee. In New- teftified that the plaintiff's fon came to the defendant the lat<i> 
rate of "fees for *^^ P^"*^ ^^ '^^ Y^^^ ®^^ thoufand feven hundred and ninety* 
taking aopren- nine, and continued with him till the fpring of one thoufand 
4ical line. *^ "^ cight hundred 5 that, the fon was confidered in the defend- 
ant's (hop as a ftudeitf : that the witnefs underAood from the 
fon, that he was to be fome time on trial ; but the witnefs did 
not hear him fay how long : that, the defendant's ufual ap- 
prentices-fee is three hundred and feventy-five dollars ; and 
the witnefs paid this fee to the defendant, when the witnefs 
commenced his ftudies : that, the witnefs has heard the fon 
fay he was to pay the defendant a fee of three hundred and 
feventy-five dollars : that the fon had a ticket for the hofpi- 
tal, which was obtained for him by the defendant, and is only 
granted to regular ftudents, and it would have coft five dol- 
lars to any other perfon : that the fon had free admiffion to 
the defendant's library, and ufed his books : that feveral phyfici- 
»i8 fay it is not ufual to return ai) apprentice-fee, and the wit^ 
nefs knew one inftance in which a return of the fee was refufed : 
that one of the witneffes gave the defendant only one hun- 
dred and fifty dollars as a fee, owing to particular circumftan^ 
ces : that, the fon, after being about three months with the 
defendant, faid he had been upon trial, but that he was now 
a regular ftudent : that the fon was a boy of about fourteen 
years of age : that, the defendant's ufual term of apprentice- 
fhip is three years ; but there is no particular period fixed by 

Elias Noah, on the part of the plaintiff, depofed, that he 
was very intimate in the plaintiff's family : that, the defend- 
ant, by letter, which the witnefs faw and read, informed the 
plaintiff he had occafion for money, and applied to the plain- 
tiff to borrow his note. Upon this, the plaintiff made and 
delivered to the defendant the note above mentioned, and the 
defendant figned and delivered the receipt above mentioned : 
|he witnefs always confidered the tranfaftion as a loan by the 


ywintiff to the defendant, and nothing elfc : that the witncfs NEW- York 

fcTcral times met with the defendant in the plaintiflTs family : y^^jilj^ 

that the defendant was very foltcitous to have the plaintiff's 

fon come and ftndy phyfic with him : that the defendant 

tifed much perfua&m for this purpofe, both with the plaintiff 

and witH b\s foU : that, finally the plaintiff* and his fon con- 

fented that the (on (hould ftudy phyfic with the defendant : 

that it was exprefsly agreed between the plaintiff and the dew 

FcoJant, that the plaintiff's foh, if he went to ftudy phyfic with 

the defendant, {hould have a right to quit the defendant 

r/ienever the plaintiff's fon pleafed to do fo ; that the fon# 

after this agreement, went to ftudy phyfic with the defendant : 

that the fon attended the defendant's fhop but irregularly : 

that the fon, tfter being fome months with the defendant^ 

adopted an opinion, that he could not, from the acquaintance 

he bad formed in New-Tork, purfue his ftudies as clofely as 

he ought to ; and thereupon he left the defendant, and went 

to Europe : that, the nvitnefs always underftood that the fon luat 

merely on trial with the defendants 

The Judgp charged, that this cafe did not depend on any 
general cuftom of the faculty, or of this defendant, in relation 
to the fee in queftion ; but On the particular agreement \ 
that tVie deCendant had, no doubt, a right to fix what price 
he thought proper for his ftudents ; but, whatever might be 
his eftablilhed fee, he was bound by any agreement he had 
made ; that, on this fubjeA, little dependence ought to be 
placed on the declarations of the plaintiff's fon, who was no 
more than fotirteen years of age \ particularly, as he muft be 
conCdered as under the controul of his father. Neither 
ought much ftrefs, in his opinion, be laid upon the circum* 
ftance of the defendant's procuring the fon a ticket for the 
hofpital ; as his father, or the defendant might have thought 
it proper to procure the fon a ticket, although he was merely 
Oft trial with the defendant : that if the jury believed that 
the ibn had gone to ftudy with the defendant on 'trial ; that 
Ae time for trial had elapfed ; and that afterwards, the 
piuBfiff and his fon had elected, that the fon ihould continue 
■ad ftrve his apprenticefhip with the defendant ; then it 
WMaid'be their duty to find a verdid for the defendant *, but 
tf tfelejrlMlieved, that the fon was with the defendant on trial, 
mkA fiUt% by irirtue of an agreement between the plaintiff and 


>mw-YORK, defendant, tke fon was entitled to leave the defendant wheii« 

^^^l^^ ever the fon difliked to remain with the defendant j then k 

Han would be their duty to £nd a verdiA for the plamtiff ^ do* 

Hofiick. du^ngi however, from the damages a reafonable allowance for 

- the time the fon viras with the defendant. 

The jury found a verdiA for the defendant. 

On the above fa£U, it was now moved, on the part of the 
plaintiff, to fet it afide, sis contrary to evidence. 

Troup for the plaintiff. The aAion was to recover money 
lent : the defence, that it was given as an apprentice-fee. 
The queftion then is, whether from the evidence, it was a 
loan or a payment. That it was the former, is manifeft from 
the evidence of Noah, who faw the defendant's letter, aiking 
.to borrow money. If the money was a payment, it was fin« 
gular a requeft (hould be made to have it lent. It is not u- 
fual for creditors to borrow their debts due, and give account- 
able receipts for the amount. The agreement on which the 
plaintiff's fon went, is ezprefsly proved ^ he was to leave the 
defendant when he pleafed ; and the receipt was therefore 
worded as an accountable one ; becaufe, if the fon did not 
continue to complete his ftudies, only a proportionable fum 
was to be paid. The plaintiff did not contend the three 
hundred and feventy-five dollars were to be recovered without 
dedu^on ; but that the defendant was not entitled to the 
whole, againft his agreement and his receipt. No argument 
could be drawn from the eleAion of the fon, had it been 
clearly eftabliibed : he was only fourteen years of age, and 
could not eleA without the concurrence, and under the con- 
troul of his father. As to the defendant's witnefles, their 
teftimony went to fa£b perfeAly immaterial ; the ground of 
the fuit was the agreement ; by that, no time was fpecified 
for eleAing to leave the defendant : whenever the eleAion 
was made, and the plaintiff's fon did leave the defendant, he 
was, upon his receipt, to account ; and, for fo much of the 
ufual time of ftudying under the tuition of the defendant as 
was unexpired, a dedu£Hon was to be made : thus, and thus 
only, the contrail in evidence, and the receipt could be con- 
fifleutly ezphined. 

Pendleton for the defendant. The application can fucceed 
only on two grounds ; either that the verdiA is againfl the 
.weight of evidence, or againft a rule of lawarifing out of the 




b&s. To decide on the £rft, the court muft aflume the of- new-york, 
£ce of jurors, and this thej nCYcr do, where there is evidence ^^^^^ 
00 both lidesy unleis it is by much the ftrongeft on one fide* Han 
The jury here have decided on the credibility of the witneiTes ; 
the court will not interfere with their province in that re- 
fpe£t, to give another opportunity to weigh the credit of the 
Btmc wiinefles. This was never done, but when the teftimony 
was hj foreign witnefles, and taken abroad : then the court 
wodd do it to procure evidence of their credibility, becaufe 
tlic jury muft be ignorant of it ) therefore, knowing only the 
credit of their own countrymen, they could not weigh it with , ^^ refcarch. 
that of foreigners^ refiding abroad.* The note for three esoftherepon- 
hundred and fcventy-fivc dollars, made by the plaintiff when ^lutS^ntff^^ 
his fon vnts upon trial, was the reafon of the accountable thiidilUnaioD. 
receipt* It was not an engagement to repay a loan, but to 
be accountable on a contingency, whether the fon would be a 
fludent or not ; there was no precife time for this : the fon 
was on trial } when he chofe to be a ftudent, the trial termi- 
natedf the account was complied with, and there was to be 
no return ; for the bill was fairly due. The dates of the 
tTanfa£kions prove this ; and afterwards the fon is found to 
be a ftudent, by having a certificate gratis, which none but 
ftudents could obtain without paying five dollars. The 
court moft fuppofc him a ftudent, or that the defendant had 
been guiltj of a iniad, by figning a falfe certificate. Noah 
fays the fon was to determine whether he would be a ftudent 
or not, and the other witnefies fay the fon did eleA to be- 
come one. Noah fwears pofitively to a faA he could not po- 
fitively know, the deftru£tion or lofs of the letter, in which 
the defendant applied to the plaintiff, to borrow money : and 
it is very fingular he fhould apply to borrow the very fum 
due him for a fee, and that the application (hould be to the 
very man whofe fon was a ftudent with him, in preference to 
all others. The reafon why the receipt was an accountable 
onei was not becaufe no time was fixed for the plaintifif s fon 
to make an election, but becaufe the defendant was not to be 
accmatable after the trial had. 

Hoflfaian, on the fame fide. The condruAion, mentioned 
bf tibc counfel affociated with me, is that which the jury put 
oa die bill and receipt. A pro rata accountability, for one or 
Jfrno jean» when it might pleafe the fon of the plaintiff to 


NEW-YORK, leave the defendant, was abfurd, in the cafe of either a ftu* 
May 1803. jgn^ ^[ la^ Qp phyfic. If, however, the inference from the 
Han ^^^ ^'^^ doubtful, the jury had drawn a conclufion which| 
H f'* ir according to legal principles, muft be decifive. 
. Harrifon in reply. The plaintiff is contending foi* his fait 

and juft rights : if injuftice has been done, this court will 
interpofe, and grant a new trial. It is admitted, that there 
was a period when the whole fee was not due ; that is in evi- 
dence : there is no proof that at the end of fouif or five months 
the defendant could ere£t himfelf into a judgey and think 
himfelf entitled to the fame fee as if the plaintiff's fon had 
ftaid with him four or five years* The principle infifted on 
by the plaintiff is one that is found in every volume of law. 
Chancery is full of decifions of apportionment of apprentice 
^ fees, which depend entirely on the quantum of fervices mu- 

koufe, 1 Vern. tually rendered.* This is the conftant rule of a£Hng, unlefs 
'^ dn?r*a ^^"^^ cuftom or ufage of trade to the contrary, be eftablilhed. 
prentice-fee was Of this there is uo kind of evidence : the defendant cannot 
^"^the mi? make and fet up one for himfelf. On this point, the defend*, 
ter haviDgr died ant's witucffcs (peak only as to hear fay, and give one folitary 
IftCT Hg^i^^dlJ inftance of a cuftom,' as it has been called. The ufage then, 
articles, though {3 out of the queftiou ; and the queftion depends on the a- 
mcntiwiciri/o greement ; of this, Noah's teftimony is conclufive : it is alfo 
only (hould be uncontradicted ; and frbm his fituation, connected with hife 
maftcr died acquaintance in the family, it is highly probable he knew all 
B^^^f" hI\1% ^^^ circumftances of the contraft better than any one elfe ; 
Webb, a Bro. nor could any one but Noah prove the lofs of the letter, aflc- 
whcrf ^Lofd^* ing a loan of money. He had feen and read the letter ; and 
Kenyon, then is it to be fuppofed the plaintiff would not have produced the 

R^rfiSd/Si^c ^^*^^» ^f ^^ ^^^ ^^^ ^^^^ ' ^^ ^^ ^^^ ^^^» *"^ ^^^^ "^^ 
dcciiion above prove the lofs himfelf, Noah only could do it ; who, like all 

iurlfdiaion a$*^ '^^^^^ ^^^^^ perfons in fimilar fituations, fwears to his firm be- 
far as could be. lief. A belief warranted by reafon, and the queftion I have 
juft alked. The agreement on which the fon was taken, 
and the note given, is the only evidence that can affeft the 
caufe. The defendant's witneffes neither do, nor can fpeak 
to this. The certificate, ufe of the defendant's books, fee- 
are nothing to the purpoie. We find the defendant aAing 
with peculiar folicitude to get the plaintiff^s fon as a ftudent; 
and the extraordinary liberality of the defendant's agreement, 
might not, if taken as the refult of his anxiout entreaty, be 



thought fo abfurd as has been argued. The fon was not 
obtiged to elcA when the note was due : no proof of the con- 
trary ; if it was fb, and then the fee was payable and the note 
accounted for, how comes it that the defendant never calls 
upon the plaintiff (or the accountable receipt, but leaves it to 
be produced and made ufe of againft him ? Had the fee been 
abfolutcVy du^ at the end of fixty days, the receipt ought to 
have been demanded ; and, as the plaintiff took up his bill, 
the de/endant fhould have taken up his receipt. The de- 
fence of DoAor Hofack is to demand wages for labour not 
dooe i is contrary to every principle of natural juftice, and 
therefore, the court will grant a new trial. 

Per curiam. The plaintiff, on the trial of this caufe, gave 
m evidence a promiflbry note of his own to the defendant. 
Elias Noah proves that this note was borrowed of the plain- 
tiff \yf the defendant, on giving a receipt, promifing to be 
accountable to him for it. The defence fet up is, that the 
note was a fee to the defendant for taking the plaintiff's fon 
as an apprentice. A motion has been made to fet afide the 
verdiA, as againft evidence, and obtain a new trial. This, 
the court are of opinion, ought to be granted. 

The receipt given by the defendant, which was never taken 
up OT caWed (or, and the teftimony of Noah, both agree in 
proving the money to have been advanced upon loan ; this 
it&imonj remains in full force, notwithftanding any thing 
that was proven on the part of the defendant. What Is re- 
lated of the fon, that he was to be fome time on trial, is in 
confirmation of the agreement dated by the plaintiff's wit- 
ncfs. The only circumlbince of any weight on the part of 
the defendant, b the further confcffion of the fon that he was 
to pay three hundred and feventy-five dollars, and that he had 
beoi ibme time on trial, and was then a regular (Indent. But 
dus confefBon by the fon, without the knowledge or authority 
pf the plaintiff, ought not to conclude him. The fafl too, 
that die Ion foon after left the defendant, and went to Europe, 
pcmci that the refervation in the original agreement had not 
heen waived. In ihort, the evidence does not warrant a ver- 
^iBi tat the defendant \ and a new trial muft be awarded, on 

:of coftf. 

\ C« J* If the plaintiff is fatisfied that a proportion 
flfl^jlil be paidj might not a new trial be faved ? 


May 1803. 



NEW- YORK, Troup. Thcrc is a verdift for the defendant. 
M^i8o3. Kent. J. Is there no objection to allow for five months^ 
Hart ^ the rate of the fum ufually paid for three years ? 

Troup. None in the world, fir, if we can get rid of the 


Philip Dow againft Pafchal N. Smith. 

THIS was an afiion on a policy of infurance dated the 

fourth day of April, feventeen hundred and ninety-five, on 

dudingthcmS^ the fchooncr Induftry, from New- York to Edenton in North 

ter.arenotafuf- Carolina, valucd at five hundred pounds : the defendant's fub- 

a Teflel of 35 or fcription was two hundred and fifty dollars. On the fixteenth 

N ^vSriT**" ^^y of April, feventeen hundred and ninety-five, the defendant 

Edcntoo ID N. and the other underwriters adjufted a lofs at fixty per cent. 

S^^S ^ ^' ^^ ^" ^'^^ adjuftmeht the aftion was brought. The 

decide 00 the caufe was tried before his honour Mr. Juftice Lewis on the 

A^^^ISSttit th^e third day of July, eighteen hundred and one. The plain* 

made on a iiill tiff produced the adjuftment, and there refted his cafe. 

drcun^ces is Thc defendant infiftcd on fraud. To prove it he produced 

conolnfiTc, tho* ^^e dcpofition of Jonathan Stratton, which ftated, that in 

fufoicioB^^ March, feventeen hundred and ninety-five, he failed from the 

''^T^^^JmLT^ port of New-York in the Induftry : that there were no other 

except tor^ud, pcrfons but Jofeph Dow the mafter and himfelf on board ; 

2^"*^'^* that Dow faid the fchooner was going to South Bay on Long-* 

known. Ifland, for which place the deponent was (hipped : that the 

fchooner had no cargo or ballaft on board, but had provifions. 

ufual to go fi-om New-Tork to South Bay : that the fchooncr 

got aground on the beach on the Jerfey ftiore : that in a day or 

two after the accident, the captain left the fchooner and went to 

New-Tork, and returned to this deponent about a week after, 

and informed the deponent he had been to New-Tork; that the 

fchooner to go to North Carolina ought to have had four hands 

including the mafter ; thinks the fchooner was about forty 

tons burden ; that he never was at North Carolina, and does 

not particularly know the navigation, but has an idea of the 

ncceflity of four hands. 

Thc plaintiff then read the depofition of Jofeph Dow, which 
ftated, that about the twenty-fifth day of March, feventeen 
hundred and ninety-five, he failed from the port of New-Tork 
in the Induftry, as mafter, on a voyage from thence to Eden- 


bn in North Carolina : that Jonathan Stratton was the only NEW-YOR] 
fuarinet on board together trith this deponent : that another ^^^ *^3^ 
hand was engaged to go, but that he fell fick, and left the Pha^fo^ 
Tcflel before fhe failed : that he was not in New-Tork until ^' 

he came wah th^ laid Jonathan Stratton after the faid veflcl '^'^""^ 
had giounded, nor did he ever inform Jonathan that he had 
been in NcW'York, while he was fo abfent from the veflel as 
oSorcfild : that there was no cargo on board, but the witnefs 
had between five and Gx hundred dollars, fome in fpecie and 
ibme in bank notes, for the purpofe of purchaiing naval 
ftores : that the money was not infured : that the fchooner 
was aboat thirty-five tons. 

The plaintiff alfo read a proteft made before John Keefe, 
Efq. a notary public, in which the faid Stratton had joined, 
which was as follows : 

EeCore me perfonally came and appeared Jofeph Dow, late 
matter, and Jonathan Stratton, late mariner, of the pettiauger 
Indaftxy, who being duly fworn depofe as follows : That they 
failed in and with the faid pettiauger ft-om Coney liland the 
twenty-fixth day of March lad, in ballaft, bound to Edenton 
in North Carolina, with a light breeze from the weftward : 
that about one o'clock in the afternoon of the fame day, the 
wind haolcd round to the north, and from that to the north 
€z(ty 2nd then to the eaft, and then began to blow fo hard, 
that they were forced to take fingle reefs in the fails, and 
take in the jib, and fqon after to double reef the fails : at four 
o'clock the wind blew fo violent that it fplit the forefail fo 
snich that they could not fet it : they then fet the jib, and 
made the beft of their way for Sandy-Hook, and on the 
twenty-feventh got round the Hook, and then the fails were 
fo mach frozen that they could not handle them ; that they 
were obliged to let go their largeft anchor, but a very heavy 
fea nmning, and the veiTel pitching bowfprit under, fhe part- 
ed: that they then endeavoured to claw off fhore, but the 
pie. continuing very fevere, and the main-mad fprung, and 
die wtfiol very lealj^ they were under the neceffity of running 
tite veflel on fhore on a fandy beach, in order to fave her, 
4i«i Cmt the prefervation of their lives : that they ufed every 
in their power to get the veflel off, but without 


NEW- YORK, The jury found for the plaintiff. 
May 1803. Hoffman for the defendant. This is a motion to fet afide 

Phibp Dow the verdift for the plaintiff, and grant a new trial. The fafts 
'^- . dated are fufBcient to bear down any erroneous conclufion 
' which has been made. The adjuftment, on which the aAion is 

founded, was manifeftly obtained by fraud, and the teftimony 
could never induce a contrary opinion. The verdift is not 
only thus againft evidence, but againft law ; for there was 
not a fufficient crew on leaving New-York. Neither thb cir- 
cumftance, nor any other, was communicated to the infurers ; 
the veffel was aground in South Bay on the a6th of March^ 
and on the 4th of April there was no information of it in 
New-York. This is enough to excite fufpicion. From the 
depofition of Stratton it appears the captain went to New- 
York, and the policy is effected on the 4th of April, when 
the veffel is laying aground. If he had tried to procure af- 
fiftance, that fhould have been proved by thofe he applied to. 
From the time of her getting on fhore, notice of her fituation 
might have been fent to New- York by land in twenty-four 
hours ; by fea in lefs. This was like the cafe of Fitzherbert 
V. Mather, i D. & E. 12. The agent of the plaintiff had 
fent orders for infurance by the poft, but was informed of 
the lofs of the veffel before the poft went out, and did not 
contradiA them : it was held to vacate the policy, becaufe a 
concealment of a fadt that might have been made known. 
So here the captain was to this purpofe the agent of the un- 
derwriter. The veffel too had no ballaft on board when (he 
left New- York : the policy was at and from, and it was im- 
poflible to take it in at Coney Ifland, in the courfe of the 
night, fo as to fail by day-break next morning, with only one 
hand and a yawl. At all events the going there was a devia- 
tion, as no ufage is found to warrant it. The want of a bill 
of lading for the fcwcn or eight hundred dollars ftated by the 
captain to have been aboard muft be taken as a fupplementary 
circumftance to impeach his credibility, efpecially as he is con- 
tradiAed in effential points by Stratton. But on the teftimony 
of both, the infufHciency of the crew appears ; for two hands 
could not be adequate to the working a veffel of forty 
tons, as fhe is ftated by one, or even thirty-five, as by the 
other. That on the incompetency of the crew the court had 


ft right to determine in the fame manner as on the point of NEW- YORK 
/eavorthinefs.* May 1803, ' 

Jones contra. This motion is made on two grounds : — phiMp Dw 
fraud, and the want of a crew. The court will obferve, that ^• 

the a£Hoa is brought after an adjuftmcnt, and therefore will ^* ^- ^^^' 
demand very ftrong leafons for fetting afide the vcrdift. It • Thi* pofition 
is remarV^aUci that every circumftance now reUcd on might °*"^' '^ " ^^^^ 
have been afailed of at the trial, and was in the full know- fui^dXtSkTn 
ledge of the underwriter, when he made the adjuftment : for i^^'°"%^jl 
by the proteft fubmitted to the defendant, on the faAs fet ther it (haU be 
hrA in which he made his adjuftment, it appears every faft, ^n^Jf^th^c ^ 
(date of failing) &c. was told him. This proteft was made bench or the ju- 
o& the 15th of April, and the adjuftment on the 17th, with ^icettnk.' 
no other jMroof of lofs fubmitted than the proteft itfelf. In nature: if it be 
this Stratton joined ; and from the fize of the veflel the de- ip^^iainst"o^he 
fendant muft have known it was her whole crew. Every thing bench; if adual 
therefore was taken into confideration before the adjuftment, foa* to the jury, 
and it was made, it being thought there were not any grounds ^" hi^^aST^-^ 
to warrant a refnfal to pay. The captain denies going to New- tion the reader 
York when he firft landed : this was a point of, who fhould *=*° ^^'"^^ ^T 

^ * ^ ' recurring to the 

be believed, the mafter or Stratton : the jury have decided. cafeofNiunrov. 
No one ever faw him in New-York, There is no evidence of ^^^"^^icrand 
communication between the captain and plaintifF, who refided that of Farmer 
at Iflip, forty miles from New-York. On his arrival at New- £, ^ff * ^i^^ 
York he heard of a very fevere gale of wind : it was a few "ted ' L«« 
days after his veflel failed, and therefore he infurcd her. ^09,311. 
Fitzherbert v. Mather does not apply. There the agent was ^^ *° * ^^« 
employed for the exprefs purpofe of making an infurance, circumfUnce 
and though a captdn be an owner's agent, he is not an agent ^^^^.1^^^^*^ 
to infnre* In the cafe cited the agent bad ordered the infu- down at once 
raoce^ he therefore was the perfon to communicate. The ^^^^t^^k^ 
crew was fufficient ; the vefTel was only one of the South the Supreme 
Bay craft, the captain fays of thirty-five, not forty tons. t^ia^fte was^ul 

Lewis C. J. Both may be right : one may fpeak of car- fcaworthy ujhmi 
f$ meafurement, the other that of the Cuftom-Houfe. * *^ ^ !"*= ^""^ • 
Not being feaworthy for want of crew is a matter 
9ih&tat a jury : and on that they have determined, their 
Vddift therefore not to be difturbed. 

I^ewis C J. Does it appear how the veflel was rigged ? 

'j<nMf^ Y'esi ihe had. The want of crew was infifted on 




Miy 1803. 

Philip Dow 

P. M. Smith. 

at the trial) and the verdi£t fhews the jury's opinion. Dow 
had gone to North Carolina on the very voyage infured in a 
veflel larger than this with only three hands including him- 
felf i this was only a pettiauger. As to the poHc/s being at 
and from, it is a miftake, the words are from New-York, but 
granted they were otherwife, Coney liland is part of the port 
of New- York. 

Hoffinan in reply infifted on the words at and from ; that 
under them the veflel fhould be fit for fea when (he firft 
weighs anchor in profecution of her voyage ; that was done 
at her leaving the pier in New- York and had fhe been loft 
going to Coney Ifland it would have been within the policy. 
The jury's decifion on the fufficiency of a crew is not con- 
dufive. Suppofe they had determined one hand only to be 
enough, the court would have fet afide the verdift. If the 
captain was in New-York, the communication between him 
and the plaintiff* muft be inferred. For this, Stewart againft 
Dunlop in the I^oufe of Lords, Park 209, is an authority. 

Per curiam. This is a claim for a total lofs after having 
exhibited the uftial proofs, and on thefe an adjuftment was 
made. It is upon this that the a£lion is brought, to which 
feveral grounds of defence are taken : Fir ft, that the adjuft- 
ment was fraudulent ; fecondly, that the veflel had not any 
ballaft on board when (he failed from the place at which the 
policy attached, and therefore was not fufficiently equipped ; 
thirdly, that ftie had not a fufficient crew. We (hall lay 
wholly out of view the two firft grounds : it appears that 
previous to the adjuftment all the fadh now relied on were 
communicated to the underwriters. The proteft ftates, the 
time of failing from Coney Ifland in ballaft, the gale of wind, 
&c. All thefe circumftances and their dates appear from the 
proteft to have been fully made known, and therefore all 
charge of fraud is at an end, becaufe the adjuftment was made 
by the underwriters with their eyes open. An adjuftment 
cannot be opened except on the ground either of fraud or 
miftake from fafts not known. On the third point we think 
there is fufllicient reafon to order a new trial. It now appears 
that the vcflTel was a fchooner of thirty-five or forty tons bur- 
then, with three fails, and departed on a voyage from hence 
to Edenton in North Carolina with only two hands, the cap- 
tain included. The veflel was therefore in our opinion not 



equipped for the voyage, and on this ground we think there new-york, 
ooght to be a new trial : one hand and the captain were not ^^^ '^^^' 
a fufficioEit crew. .j^ p^p^ 


Thot. Yooogi. 

The People againft Thomas Youngs. ^ * 

THE c/eAndant had been convifted of grand larceny, before Thefirfireo 
the cant of General Scffions, at Albany in February laft, and ^^^^\ ** 
was brought np to receive fentence of imprifonment for life certain proceed- 
nnrfcr the aft of 21ft March 1801, c. jS, f. 4, as being his fe- '"^^^'l^ 
oood offimce. The indiAment on which he was now convi A* extend to col- 
ed did not (ct forth the record of the former conviction : but on fucitf^e 
inftead of it a fuggeftion, in the nature of a counterplea, had priCoDeraund 
been entered againft the prifoner in the following words : will enter a^^ 
" And Ambrofe Spencer, who profecutes for the people of the ^**'nJ^ j5?" 
^ State of NeW'York in this behalf, having heard Thomas no peremptorf 
" Youngs who ftands conviftcd at a Court of General Sef- ^|~^^^f. 
*' fions of the Peace holden at Albany in and for the County flons has no jo- 
•* of Albany on the feventecnth day of February laft paft, of ^^^^^7^^"^ 
" fekmioofly and with force and arms ftcaling, taking and fecond offence 
" conveying away at the city of Albany in the county of Al- granTSr^^ 
** bany on the fixteenth day of February laft paft, one cotton, indiamenu for 
*' &c. (^/jpecif3nngthe articles and their value) of the goods and ^here thc*^puu!^ 
^' chattels ofEdwzrA Grifwold, being afked by the court now i^n^t is in- 
" here what he had to fay for himfelf why judgment fhould fct forth there- 
" not be pafled againft him agreeable to law, faith that the ^""^^ °f ^^^f^*"" 

-,-.-___* _^ _ ° . , o « *"*^ conYidion. 

" faid Thomas Youngs ought to receive the fentence and Prifoner tried 
^judgment of the court now here to be imprifoned in the for^;^*d^i°r'c- 
^' State Prifon for life, and there to be kept at hard labour, ny and brought 
« becanfe he fays that the faid Thomas Youngs, by the name ll^^^'^^^^^' 
^of lliomas Young heretofore, and before the faid felony being fecond of- 
; committed in manner and form aforcfaid, to wit, at a ^\\'^^l ^"^' 
Court of Judicature, held at the City Hall of Al- other judgment 
« and for the State of New-York, on Saturday, the i^w'mi^ht"'^ 
•* twienty-eighth day of April, in the year of our Lord 1798, *»*v<^ pronoun- 
* beAfC John Lanfing, Efq. Chief Juftice of the faid Supreme " 
^ Court of Judicature, Morgan Lewis, Eghbert Benfon, and 
^ JflUKi Kent, Efquires, puifne Juftices of the faid Supreme 
•^ CSoMTt of Judicature, was convi<5tcd on his plea of guilty to 
^ !■ ilriiOiiient for grand larceny, of the good^ and chattels 

Thoc Youn^^ 


NEW- YORK, " of one John Wright, and thereupon it was confidcred and 
^^*yj^ " adjudged by the faid court laft mentioned, that the faid 
The People ** Thomas Young be confined in the State Prifon in the city 
▼• •' and county of New- York, at hard labour for two years, 

** and this, he the faid Ambrofe Spencer, is ready to verify 
*' and prove Jby the record thereof ; and the faid Ambrofe 
" Spencer further faith, that he the faid Thomas Youngs, 
*' who now ftands convifted at the faid Court of General 
*' Seffions of the peace, holden at Albany, in and for the 
" county of Albany aforefaid, in manner and form aforefaid, 
*' is the fame perfon who was fo convifled at the faid Supreme 
.'* Court of Judicature, holden at the City Hall of Albany, in 
** and for the State of New-York, in manner and form afore* 
** faid, and is not any other or difierent perfon. Wherefore, 
** fince the faid Thomas Young hath already been duly con^* 
•* vifted of the crime of grand larceny, committed fince the 
*^ faid firft conviction, the faid Ambrofe Spencer for the peo* 
•' pie of the State of New- York, prays the judgment of the 
^* court here, that the faid Thomas Youngs may receive 
** judgment to be imprifoned in the State-Prifon in the city 
'* of New- York, at hard labour, or in folitude, or both, for 
** life." 

Spencer, Attorney General, prayed that the prifoner might 
be put to plead his identity, and, in cafe of his denying that 
he viras the fame perfon, that a jury might be fummoned in^ 
ftanter, to try the faA. This he contended was the right 
mode of proceeding, and for that he cited the King v. Scott 
& or. I Leach 445* 

Court. Thomas Youngs, you hear what is alleged againft 
you. Do you wifh to have counfel ? 

Prifoner. If you pleafe. Sir. 

Hofiman and Colden being afiigned him, requefted a little 
time to prepare themfelves : the queftion being new it was 
granted. On the prifoner's being brought up the next day, 
by advice of his counfel he ftood mute. They infifting that 
as the punifliment of peine forte was exprefsly aboli(hed, and 
the firft feftion of the law of 21ft March, i8qi, ch. 60, ap- 
plied only to cafes of arraignment, the prefent was a cafus 
omiflus in which the court had no power. 

After fome confultation on the bench, the court ordered 
the following plea to be entered : 



" That he is not the perron alleged by the Attorney Gen- new-york, 
" enl in his plea to have been formerly conviftcd of grand ^^7 '803. ' 

larceny, ,^.j^ p^^^ 

Referring to the prifoner a right to objeA to the mode of ▼• 

proceeding «ad take advantage of any irregularity that might <*- Yo"pg«' 
appear. His coimfel then ftated they meant to contend that 
the proccedlaigs not fetting forth the record of the former 
conFiffiba were erroneous, and the court would not pronounce 
the judgment prayed for. 

j^cer. Attorney General. The identity of perfon and 
fcrmer conia£tion are circumftances collateral to the offence 
itfdf : they do not conftitute a part of the crime, and there-^ 
bit may be pleaded and replied to ore tenus, and a venire 
awarded returnable inftanter, in the nature of an inqueft of 
office. This » the conftant praAice in cafes where it is doubt- 
ful whether a criminal be a lunatic or not ; fo, by analogy, 
the fame mode (hould now be adopted, efpecially as it is a 
nutter in which the court may exercife its difcretion. i Hawk. 
4* b. I. c. I. r. 4* n. (5.) Foft 50, 51. In Great-Britain, when 
a priibner is to be oufted of his clergy, the fuggeftion of his 
former offence b by way of counterplea, and the indi£hnent 
never takes noike of the previous conviftion. 4 Hawk. 254. 
b. 2. c. 33. f. 19. n. The only mode of trying whether he 
has before had bis clergy is by the certificate prefcribed under 
the 3 and 4 W. and M. c. 9. f. 7. The King v. Scott k or. 
I Leach, 445. If the fedlion cited from the ftatute of W. 
and M. be compared with the ad fe6lion of our State Law of 
X4th of April, 1801, ch. 146. i Rev. Laws N. Y. 462, 3. 
the certificate ordered by our provifions will be found perfect- 
ly analagous to that required by the 3 and 4 W. and M. 
The firft offimce is grand larceny, punifhed in a certain man- 
ner : the fecond offence is the fame, with a greater punifh- 
neat. In England the fecond convi£lion is not availed of in 
the UiCbnent, but when the prifoner claims the benefit of 
hmdmgf^ it is counterpleaded. This makes a perfeA analo- 
If. His identity may be tried by a jury of his country, with 
AcaU of eounfU and the right to challenge, at which time 
he WUBf controvert his former convi^Stion and indictment. 
on principle, it is not neceflary to conneft the firft 
fecond offence, as the repetition is no part of the 

*^^ but collateral and only incidental to his guilt. All 



The People 


Thok. Toung». 

NEW-YORK, fa£b that do not enter into the crimei but are mere circnm* 
May 1803. fiances, are to be inquired of in this way. The books of 
precedent are filent as to the practice iniifted on, and that is 
an argument for the prefent mode : the form of the coun- 
terplca is warranted by Dogharty. 

Colden for the prifoner. There is no analogy between 
the prefent cafe and thofe which have been cited. It is not 
denied that to ouft of clergy the mode is by counterplea. 
The prefent fuggeftion cannot be fpoken of as being of the 
nature of counterpleas ; thefe are fo called becaufe counter 
to what is pleaded, or claimed by the prifoner after his con- 
▼iftion, when he demands the benefit of his clergy. To the 
plea which the prifoner has put in, to do away the force of 
the fentence, the Attorney General interpofes his counter- 
plea ; but he cannot, after trial, fuggeft any new matter. If 
the crime was as is ftated in the counterplea, or fuggeftion, 
the court below had no jurifdi£tion of the offence. Juftices 
of the Seilions are oufted of that both by the common law 
and exprefs words of our State aA of the aift March 1801, 
fee. I. Rev. Laws N. Y. vol. 1. 302. That ftatute, after 
giving the juftices a right to inquire of all offences, &c. 
and going on to confer on them a right to hear ofi^ences of 
grand larceny, has the following provifo : '* Provided always^ 
** that it fhall not be lawful for any of the faid courts to hear 
•• and determine any indiAment of, or for any treafon, mif- 
** prifion of treafon, murder or other felony or crime, which 
** is or fhall be punilhable with death, or with imprifonment 
'''in the State-Prifon for life, but (hall caufe the indi£lments 
** for the fame to be delivered to the next Supreme Court, 
** or court of oyer and terminer or gaol delivery, to be held 
** in fuch city or county, there to be determined according to 
'' law." The queftion then is, b this a crime punifhable 
with imprifonment for life or not ? Is not this apparent 
on the record ? If fo, it is conclufive as to the jurifdic- 
tion. The court will recolleft that the law referred to 
was pafled with a direft view of reftraining the juftices in 
fef&ons from exercifing any authority where the punifh** 
ment was fo fevere. The Legiflature viewed them is a fub« 
ordinate tribunal and therefore delegated inferior powers ac- 
cording to the confidence entertained. The practice on the 
prefent occafion is not fuch as has been formerly ufcd : the 
mode heretofore adopted has been to make the firft offence a 



abttgt m the indi6hnent for the fecond^ and as this has beeii N£W-yorr, 

thelme of cooduA in this country, it may be confidered as a ^^^ '^3* 

CDtcmporancoos expofition of our law. It is aflcrtcd that, n^^ People 

though this method might be taken, it is only matter of ^- 

fcrm : it is a matter of form however which gives a jurifdic-^ o^ onngt. 

tion the Le^flature has taken away. It is form in one point 

of vie:w, in another not. Thb kind of alteration in criminal 

proceediojs is not allowable^ It is neceilary that the previ-* 

ons offince fhoold be made a fubftantive charge in the in- 

diAmcnr for a fecoUd^ where the piinifhment is augmented by 

tie repetition, becaufe the repetition is the crime. Reafon 

tells OS, the fecond offence muft be after a conviftion for the 

titt, for it is on a prefumption of the iirft puhifliment's not 

luting indiiced a reformation, that the fecond is increafed* 

I Hawk. 306. b. I. c. 40. f. 4. i Hale P. C. 685. i Leon* 

t9S, 'Flemii^'s cafe. 3 Dyer 323, Tavemer's cafe* The dil^ 

tindion b e t wee n clergyable cafes and the prefent is this 1 

whether clergy has been allowed or not is not traverfable, but 

here the nanire of the crime is changed by a fuperadded fa£t, 

the party therefore muft have an opportunity to traverfe* 

The time at which the fecond offence was committed is of the 

eflcnce of the trimS^. The cou<lterplea is no evidence that 

the fahCcqacnt £elooy was after the i6th February, nor is any 

i5be tendered of that faA. It ought to have been formally 


HoSman on the fame iide. The neceifity of fuch an iflue 
frill be more evident on recurring to f. 4 of the law declaring 
what crimes are punifhable with death or imprifonment for 
fife :* the fecdnd conviction muft be after fuch firft convhftion j * *ift MarcK 
if it be a queftion then whether the fecond offence was com* rcy! uws, N. 
fliitted ^fftr the firft cdnviAion it h a h& ilot inquirable here, Y. 154- 
bat by a jury. Before them, for an offence fubjeAing to the 
pniihaieiit now aiked, the f>rifoner is entitled to a perempto* ^ ^ ^* 1. 

Tlir ' f . , . . t L V r / ' + 41ft March 

17 owlenge of twenty ;t this right by the prefent mode is 2801. f. 60. C 9. 
taken away : for on a collateral iffue it cannot be excrcifed. L^;f*^'' 
Ratcit^s cafe Fof. 42. Dogharty is a precedent in point, and 
in the rery one adduced by Mr. Attorney, the former con- 
^ifHof] is fct forth* 

Spencer, Attorney Genertil, inCfted on his former argu- 
mmt% and that this was properly a counterplea ; becaufe, 
uhca the p rifoncr it aike.d what he has to fay why more than 



NEW.TORK, fourteen years imprifonixient fhould not be awarded^ he muft 

^^^^^f allege the conYiAion to be on his firft offence : this is hb plea ; 

The People then the fuggeftion read is the counterplea. The pra£tice re- 

^' lied on has not antiquity enough to eftabliih it, and the di£* 

■ -. tin£tion between taking away clergy, and augmenting the 

puniihment, amounts to the fame thing, for they both vary 

the fentence. The idea under which the proceedings have 

been carried on Is, that the trial might be below, and the 

judgment here. 

Per curiam. The prifoncr was convi£lcd at a coart of 
Gineral Seffions of the peace, held in and for the city and 
county of Albany, of a grand larceny. The record of his 
tonvi£tion is removed into this court, on which a fuggeftion 
is entered that he had heretofore been convicted of a fimilar 
offence. On this the public profecutor has moved for judg-* 
ment of commitment to the State-Prifon for life, according to 
the aA in fuch cafe made and provided, or that the prifoner 
take iflue on fuch fuggeftion. The court doubting of the 
regularity of this mode of proceeding affigned counfel. The 
point has been ably argued and they are now to give their 

From the authorities and precedents that have been laid 
before us, there can be little doubt, that in England, when a 
prifoner prays his benefit of clergy, and the queftion is, whether 
it hath not been on another occafion extended to him, this is 
the mode (under the appellation of «a counterplea) that is 
generally purfued. In cafes however where the firft offence 
forms an ingredient in the fecond, and becomes a part of it, 
fuch firft offence is invariably ftt forth in the indifhnent for 
the fecond. 

A fimiUtude is faid to eaiSk between ^he prayer of clergy in 
England; and a deniri^ of a former conviftion with us, and that 
therefore tlM^ fiune mode of proceeding is equally correA in 
the one cafe as in the other. But on ftriA examination, there 
will be found to exift no analogy between them, and that we 
cannot adopt the fame mode of proceeding without depriving 
the prifoner of an important privilege fecured to him by fia- 

It is true that moch inconvenience may and probably will 
^fe from this decifion. Few conviQions for fecond offences 
will be likely to take ]^laW9 Wt the remedy lies not withia 


tgr reach, ^j a ftatutc of this State every perfon who fliall nzw-torb; 

be indlAed for an offence^ the pumihment whereof fball be, on ^^!|!J^ 

cmviftiony coo&ieipent for life in the State-Prifon, is entitled. The Peopit 

when put on his trial, peremptorily to challenge twenty of .-j^^ ^- 

lus jurors. The fonn of proceeding now contended for would 

eSbEbiaUy deprive the prifoner of this right. It is no anfwer 

to this obje^tioo to fay, his right of challenge may on the tri* 

ai of thtf coQateral queftion be extended to him, even fhould 

it be proper to allow it him on fuch occafions* He is enti-^ 

tkd to it when tried for the prinppal felony, and had he not 

ken deprived of k, might have bfsen acquitted. Another ob« 

jcAion^ and a flrong one, arifes from the circumftance of his 

coovidioo having taken ^acje before a court of feffions. The 

ftatote declaring the powers of juiiices of feffions exprefsly 

prohibits them from trying indiAments whore the punifliment 

on €onvi£doa is confinement for life. Had it appeared then 

from the indi&nent that he was to be put upon his trial for a 

frcond c^Eence, a plea to the jurifdi£li<Mi would have tied up 

the binds of iiich court and hai^e carried bis caufe for trial 

to a tribunal that could have extended to him all hb rights. 

We are of opinion this court can give no other judgment 
in the cafe than fuch as the feffions might have done, which 
exceeds not the poniflunent of fourteen years confinement. 

N. B. The prifoner was fentenced to five years* 

Edward Shepherd Smith and John Stanley 


Jordan Wright and Ifaac Wright. 

THIS vras an aftion againft the owners of a (hip, to reco- ^^^Jj^^jj^ 
vcr the value of goods {hipped on deck, and cjeAed. The ejcded there is 
eadk was tried on the eighth day of April one thoufand eight "^rTtt^ ct^^^ 
hmdred and two. It was admitted, that the defendants er of the vdTcl 
: owners of the fhip Charlotte. That the plaintiffs were ^^^^ ** * '^"*' 

owners of twelve Bales of cotton, laden on deck, to be car- 
liid ftom New-Tork to Liverpool: that, the defendants 
tp pay one half of the freight which was paid for goods 
in the hold ; and, that the cotton, in a ftorm, was 


KEW-YORKi thrown into the fea, for the prefervation of the (hipj and the 
y^J^.^,^^ rcfidue of the cargo, which arrived in fafety. 

Smith & SttQ- Several eminent brokers, underwriters, and merchants were 
^^ examined in this caufe, and they all uniformly teftified, that 

Wright & aDo- goods on deck, if loft, are paid for by the underwriters on thofe 
^' goods, without contribution from the afilirers of the veffel or 
otl)^ parts pf the cargo. That, there was no inftance of an 
average or contribution allowed, when a lofs happened in this 
way : that, they never knew of any fuch cafe occurring be- 
tween an owner of goods on deck and the owner of the vef- 
fel. Goods on deck always pay a higher premium, even in 
fummer double, in winter, about 7 to 3, and lefs freight than 
goods under deck : the freight is lefs by one half, or two- 
thirds, or thereabouts j but always lefs. That, they never 
before heard of a demand of this kind made againft the 
owner of the veflel by the ihipper of goods : that, the freight 
of goods on deck is lefs than when below, becaufe they are 
not coniidered as at the riik of the owner of the veflel. One 
inerchant faid, he once owned goods on deck, which were 
loft by jettifon ; and being uninfured, he claimed nothing 
from the owner of the veflel or the other part of the cargo. 
He conceived it to be the general underftanding, that, for 
goods ejected from the deck, no contribution is to be made 
by the owner of the veflel or of the other goods. 

The counfel for the plaintiff gave their confent, that if, 
fubfequent to the trial, any inftances of ufage could be. afcer- 
tained by affidavit, they fhould be added to the cafe. 

A verdiA was found, by confent of parses, for the plain- 
tiffs, for one thqpfand dollars, fubjeA to the opinion of the 
Supreme Court, on the law, and on the admiflibility of the 
preceding tefttmony. If the court gave judgment for the 
plaintiffs, ^nd there fhould be any controverfy, as to the real 
fiim due, it was to be referred to indifferent pcribns to liquidate 
the fame. 

Per curiam. The plaintiffs (hipped on half freight, on 
the deck of the defendants' veflel, twelve bales of cott9n for 
Liverpool 5 which, for the prefervation of (hip and cargo, 
were, in a ftorm, thrown overboard ; and the queftion is, 
Are they entitled to general average ? It is conceded, that 
they are not : that, the fhippers of goods under hatches, and 
the infurers on fhip and cargo, arc not liable to contribution 


OBacooixnt of their prefumed ignorance of any part of cargo MEW-tork, 
bdng placed in fo perilous a fituation. But it is infifted^ ^^^ '^^ 
Acre is not the fame ground of exemption for the (hip-owners, s^^'s^L. 
becaufe fuch h£t is to be prefumed within their knowledge j ^ 

and they arc benefited by the extra freight. If this reafon- wrighr& aoor 
ing Y>e corre&y its effedt would be to make the fhip-owners ^^^' 
iafurcTS of all goods laden on deck, without premium, and at 
ha\f frd^t ; which cerUmly would be the height of injuf- 

It is Sufficient fiv our purpofe, that the ufage has been a* 
piidi the allowance of avqrage to goods placed on the deck of 
a vefleL This is proved to be the cafe, from the teftimony 
of fcfcnl iniurancc-brokers and merchants, of long (landing 
amoag lu \ lame of whom carry it back as far as thirty 
years y a period however, too (hort, it is faid, to eftabli(h an 
u&ge. The true teft of a commercial ufage is, its having 
eipfted a (bfficient length of time to have become generally 
known, and to warrant a prefumption, that contra£b are 
made in refere nce to it* Thb appears to be the cafe in the 
preient in(hmce. We are therefore, of opinion^ that judg- 
ment be ficnr defendants. 

Stephanus Miller againft Reuben Drake. The ftamtc «f 

frauds doc« not 
require the ft- 

ERROR on a certiorari from the ten pound court. grccment to 

It appeared, from the juftices return, that the plaintiff had ^^^ i^dTto 
agreed with the defendant to attend at a certain place, to re- be fct forth in 
ceive a conveyance of fome land from the defendant and his A^comraA 7or 
wife, to one Rhoam. The proceedings below were by the the benefit of » 
prefent defendant, to recover damages, for the now plaintiff's ^jn foOToJTan 
aoo-attendance, according to his engagement. The declara- *^»«> Jy ^ 
tionftated, that the "defendant did, together with his wife, wmraaumade. 
• attend at the place appointed, ready prepared and offering i^??^^"**^' ®^ 
^ to execute to the faid Jacob Rhoam a conveyance, &c. ac- « prepju-cd, mnd 
^coiAng to the aforefaid agreement." There was alfo a count « g^[j."f '^*' 
fer worit and labour done with the defendant's waggon and «<vcyance,ac- 

** cording, &c. 
"but that dcfcn- 

coriaro. The errors afligned, and relied upon by the ** dant did nut 

«Ur ««M.«>V»r^. «attuid,aiidha» 

US, are thele . « rcfufcd." i« a 

lib That the aAion before the juftice was founded on an AifTiaent ofiVr 
at for the fale of lanJs, and it docs not appear that JL^lai^ 


MEW-YORK, there was znj note in writing, of that agreement i whkh was 

^^^»M^ therefore Toid, by the ftatutc of frauds. 

]^4y]^ ad* That the promife by Miller, was for the benefit of one 

^ Rhoam, a third peribn ; and therefore, without confideration 

_ as to him ; and for that reafon, alfo void. 

3d. That there was no performance of the contraA on the 
part <^ Drake ; it not being alleged that he oficred a deed 
executed, or ready to be executed. 

The firft exception is clearly not well taken. Although 

the ftatute of frauds requires a note in writing, to fupport a 

contraft refpefting the fale of lands, it is not neceflfary the 

Gale ▼. BarBer ^"^^ting ihould be let forth in the declaration ; and it is fuf- 

I Rmym. 4ia ficient if it appear in evidence. The ftatute has not altered 

BiilLa;^. ^^ f^^^^^ of pleading, which remains as it was at the common 


2. The fccond exception, we tUnk, is equally untenable. 

The a£tion was founded on mutual promifes ; and the one 

promife was the confideration of the other. It was not ne- 

ceflary that the aA promifed to be done by Drake, ihould 

appear to be immediately beneficial to Miller, in order to 

fupport the obligation of his promife. It was fufficient that 

its performance would be detrimental to Drake, or deprive 

him of a right which he before pofiefied. An injury to one 

party, or a benefit to another, is fufiicient confideration for a 

promife. By the agreement in this inftance, Drake was to 

• Qj. If fach convey to another* his title to certain lands, in confideration 

h^nSdSlld^S of which, the promife on the part of Miller, was made j and 

an aftion. Dal- that confidcration was fufficient. 

Vort^siW^ar- 3* With refpeft to the third exception, we hold the offer 
chiiigtoDY.v<^ to perform is fufficiently averred in the declaration. It is a- 
PuU.xoi. B.(c.) verred that Drake and his wife attended at the time and place 
S«c ^^^^^ appointed, ** ready prepared and offering to execute'* the convey- 
1x7. Martin ▼. s^Qce ** according to the /aid agreement /" and that ACUer did 
Hinde, Cowp. „o^ attend i and that he has refufed to accept the fame, and 
t* See X liex to perform the agreement on his part.f This averment was 
37^*3.^eaifct ^"t^ft^ntially fufficient, and the manner in which the tender or 
there dted. ofier to convey was made, was matter of evidence on which 
the juftice has decided, and which cannot appear on the re- 

We are therefore, of opinion, that none of the exceptions 
are well taken. 


James Weaver againft Elijah Bentley. Mayisos. 

T Weaver 

THIS was an action of aflumpflt to recover back the con- ▼. 

^deration paid oa an agreement under feal in the following ^ Bcadey. 
VQcdft — ^** November the 26th, 1796. Know all men by ^ ^ ^^ 
'' thefe firefiRit% tkat I, Elijah Bentlej, do bind myfelf to pro- tund himiclf 
« cure for Junes Weaver, Lot No- 67, joining Ballcock's on f^^J'o^a^ 
** the irefty which lot I am now in pofleifion of, which I tain ad for s 
^^ promi£; to procure fo £u: as this, on thefe conditions, that entioo,^^he 
**iSf2 lea/e to be either three ypars rent free, then to pay the ^j* aflompfit 
" intereft of one hundred and fizty pounds yearly, for the mTer backed 
•* term of ten years, then with paying one hundred and fixty ^|^^**^'"*"°" 
'' pounds, to have a deed for the fame lot, containing one ^^^'^ 
" hundred acres, which leafe I promife to deliver by the firft 
" day of June next, and then if not called for, whenever called 
^ for. The condition of this obligation is fuch, that if I do not 
*< deliver the faid leafe, the two iixty pound notes, which are 
^ dared November the 26th, 1 791}, which I have againft James 
^ Weavcrj ihall be of none effect. As witnefs my hand and 


The canfe was tried before Mr. Juftice Thompfon, at th^ 
circuit c<mrt for the county of Herkimer. The plaintiff pro* 
duced in evidence the agreement and afEdavits of various 
payments by the plainti£F. The counfel for the defendant 
objected to the plaintiffs right of recovering in this form of 
a£tion i iniifting that the agreement was under feal, and im* 
ported a covenant, and therefore aiTumpfit would not lie* 
His honour, after hearing couniel, direAed a verdiA to be ta- 
ken fiir the plaintiff, fubjeA to the opinion of the court on 
the point relied on by the defendant. His honour the C. J. 
wd an the Judges but Livingfton J. concurred in the follow- 
mg detennination. 

Fiv curiam. The defendant covenanted to procure for 
diefhintiff within a given time, or on demand thereafter, a 
lole for. certain lands, three years free of rent, then to pay 
tke imeMft o££-i6o annually, for ten years, in lieu of rent, 
Wdtit ibc expiration of that period, to have a conveyance of 
itif (ipon payment of the principal fum,in default whereof, two 




KEW-TORK, notes of filty pounds each, given by the plaintiff to the defend- 
Mmj 1803. ^m^^ ^gj.jg ^^ jjg ^^jj^ »pjjg plaintiff made certain payments 

in money and farm ftock to the defendant]|Who failed to per- 
form his covenant and the {Plaintiff thereupon brought a£- 
fumpfit ; and the queftion now is, whether the a£tion will 
lie or the plaihtiff be compelled to refort to his covenant. 

This cafe is fo lobfely drawn that it fcarcely affords fuffi- 
cient ground for a decifion. It is not ftated for what the 
notes, money or ftock were given ; prefuming them to have 
been the confideration of the covenant, the queftion then will 
be whether the defendant having failed to perform on his party 
the plaintiff may difaffirm the contraA and refort to his af- 
fumpfit to recover back what he had paid. We are of opin- 
ion he had his election either to proceed on the covenant and 
recover damages for the breach, or to difaifirm the contraA^ 
and bring affumpfit to recover back what he had paid on a 
confideration which had failed. Judgment therefore muft bt 
for the plaintiff. 

Livingfton J. Two queftions were fubmitted to iis in this 

1. Do the terms of the contrail import a covenant ? 

2. Can the plaintiff waive covenant, and bring affumpfit tm 
recover the confideration paid for the laud ? 

In anfwer to the firft it is only neceffary to ftate, that the 
defendant ** binds himfelf '* under fcal to procure fot plaintiff 
a certain lot of land, and ** promifes'* td deliver the leafe by a 
certain day. The words " bind and promife" create a cove- 
nant as ftrong as any which could have been ufed. 

It follows then that an aflion of covenant will lie on the in-* 
ftrument on Bcntley's non-performance, to recover back all 
that has been paid. When that is the cafe the party muft 
rely on the fecui-ity he has taken, there being no neceffity for 
the law to imply a promife difterent from the one contained 
in the terms of the contraft. Promifes in law eiift only 
where there is no cxprefs ftipulation between the p&rties — thus 
in 2 Term. Rep. 100,* where a furety had taken a bond of in-* 
dertinity from his principal he was not permitted to refort td 
an adioii of affumpfit for the money he had paid. This is a 
fironger cafe, for if the prefent fuit be maintainable for the 
money paid in confequence of this covenant, I fee nothing td 
prevent the plaintiff from bringing an aftion cfn the inftrumcnt 

» TeufTaiiit V, 


Mif, fbr 0r£A^ damages which may have been fuftaincd by the new-York 
defendant's noD-performance, and thus fubjcfting him to two ^"V ^^3- 
Aits for a compenfation which might have been obtained in ^^tvdi^^ 
ene — for thefe reafons I think it more fafe to adhere to the rule v- 

wiuch confines a man to the fccurity he has taken, than to ^^^^^' 
depart firom it, merely becaufe the merits may be with the ~ 

pfadntVff. The cafe of D'Utricht v. Melchor, i Dail. 428. 
cannoebriiw. In my opinion there fhouid be judgment for 

William Muir and William Boyd 


The United Iniiirance Company of the City of" 


THIS was an a£tion of affiimpfit on a policy oi infurance, a veflcl captur- 
effefted in the name of Archibald Gracie, on the cargo of ^^^ ^^^Ti;^^ 
the (inp Dauphin, valued at eighty-feven thoufand one hun-» a port of the 
dird and fixty dollars, on a voyage from Surinam to Lon- ^hkh^bound, 

don. and in the way 

The caufe was tried before Mr. Jufticc Radcliff, at the dcilinVtion ; in- 
June &tmgs in New- York, 1802, when the jury found a formation of all 
verdfdl for the plaintiffs, fubjedl to the opinion of the court ftanccs bcbig 
on the foUowiDg cafe, in which were admitted, received at the 

Firft, The defendants' fubfcription, the failing of the vef- afTurcd cannot 
fel on the voyage infured on the fecond of Odober 1 799, fucht°«fc^ ftc 
and the plaintiffs' intereft. and her cargo 

Secondly, That on the firft of December 1799, in the pro- J^^'lhe 'hii^'. 
fecution of the faid voyage, the (hip, with her cargo, was offalcfallonthe 
captured by a French privateer, called the Bellona, of Bour- * ^^ 'j£ ^^^^^^ 
dcaux^ when the whole of the crew, except the captain, mate^ FP^r informa- 
carpenter and boy were taken on board the privateer, toge- Ji,;,,^ aii"aban^ 
therwith her papers ; and a prize-mafter, and thirteen men <^onm^^nt can be 
ifut on board, with dire6lions to carry her to Bourdeaux. 

ThinUy, That on the fourteenth day of December 1 799, 
die Hup was recaptured by two EngliOi frigates, the French 
prinMnftfter and men taken from on board of her, and an 
^^^ft prize*mafter and ten men put on board, with direc- 
tioot .to carry her to Plymouth, in England, where flie ar- 
tJmA M tho 1 2th of January, 1 800, and was libelled by the re- 



NEW.YORK, captors for falvage, tnd a claim interpofed by the captaiOf <m 
May^^'^ behalf of the plaintifii. 

Mttir &aiir. Fouithlyi That on the fecond of April i8oO| information 
u 8. Cow ^^ received from a London newfpaperi of the capture, re* 
' capture and arrival of the fliip at Plymooth ; and that on 

the third of the fame April, the abandonment wat made. 

Fifthly, That the cargo, while in pofleffion of the captort 
and recaptors, as well by reafon of tempeftuous weather, aa 
from negleA and inattention, in not pumping the vefiel, fo£» 
tained confiderable damage. That the vefiTel, at different 
times, had eighteen inches of water in her hold, and that the 
water pumped up was frequently thick with cofiee and fugar i 
that one of the bales of cotton took fire by accident, and a 
part thereof was thrown overboard : that the cargo was plun- 
dered by the French. 

Sixthly, That the captain of the veflel, Ibortly after his 
arrival at Plymouth, wrote to Cadcleugh, Boyd & Co. of Lon- 
don, the coniigneesof the ihip and cargo, requefting them to 
come down to Plymouth, or to fend fome pcrfon to aid him, 
or to inftniA him what meafures would be moft prudent for 
him to purfue. That, in confequence of this letter, Mr. Boyd 
himfelf went down to Plymouth about ten days after the arri- 
val of the vefiel at that place, and immediately entered into 
a aegoeiation with the agents of the recaptors for the liberation 
of veiTel and cargo ; it being afcertained, that the cargo 
would fell in London, the place of its deftination, at a much 
better price than at Plymouth. 

Seventhly, That the veilel and cargo were appraifed at 
Plymouth; the former at £9^2 Sterling, and the latter at 
£i 1,697 : 15 : 1 Sterling. That Mr* Boyd offered to pay one 
eighth of the appraifed value both of veflel and cargo, in lieu 
of falvage, provided the agent of the recaptors would affent 
to deduft a reafonable allowance for the damage and injury 
the cargo had fuftained while in pofleffion of the captors and 
recaptors : that, to avoid the expence of unlading the cargo 
to afcertain fuch damage, it vras agreed between Mr. Boyd 
and the agent of the recaptors, to leave the quantum of da- 
mage and injury to the captain of the veffel and the prize- 
mafter. They, after taking into confideration the quantities 
both of fugar and cofiee, that had been pumped up, and the 
other injuries the cargo had fuftained, (without lauding the 


argo til crdcf to esouniiie it accurately) were of ofmiioni that new-toi 
the cargo had fnfiained damage to tweWe and a half per ^^7 <^ 
cmt or one dghth of ks value ; but this eftimate was found- mS^^J^ 
cd on coDJeAare only. On this fubjcA, the captain, in his ▼• 

depofition taken 1^ confcnt of parties before the trial| depof- ^' ^ ^ 
cd m tluK "words fbllowing^ to wit : 

••Tbar, to avcrid the expence of unlading the cargo, to af- 
certain ilxh damage, it was thereupon agreed to leave the 
q mitm n of Inch damage and injury to this deponent and the 
priie-mafler ; who, after taking into confideration the quan- 
ffty both of fugar and coffee that had been pumped up, did 
coomr in ophuon, that the cargo had fuftained damage to 
one dghth of its value, or to twelve and a half per cent, 
which the deponent niertlj Mieved to be the cafe.** 

Eighthly, That after deducing twelve and a half per cent 
-from the appraifed value of the cargo, for the damage and 
injury as above eftimated, the coniignees of the vcflel and car- 
go paid to the recaptors, for falvage and other incidental ex^ 
pences^ £ipS3 : 1 1 : 3 Sterling. 

Ninthly, That the confignees refitted the veflel at Ply« 
mouth, to enable her to carry her cargo to London, bdng the 
place of its deftination j and, that the refitting and diiburfe- 
ments, togiethcr with provifions for the crew, pilotage and 
other chax^ges, amounted to £g44 :^:^ Sterling, the appraifed 
vahie at Plymouth being £Sgt : lo : o Sterling, 

Tenthly, That the confignees of the vefiel and cargo, in 
London, wrote to the faid Archibald Gracie, a letter, dated 
7th February 1801, announcing the preceding fa£te ; and that, 
as they cooM not confult the underwriters, that they had in- 
fbred from Plymouth to London j^2ooo at 3 G, per cent, to 
retam 151. for convoy to Portfmouth, and 15s. more from 
thence to the Downs. They defired this to be communica-* 
ted to the underwriters, and that, as foon as (he £hould get 
nmnd, and her cargo examined, whether found or damaged, it 
iMRdd be fold for their account. 

Eleventhly, That the vefiel was unavoidably detained at 
Tlyinoitth tHl towards the laft of March, and did not arrive 
al London nntil the firft day of April 1800; and fhortly af-^ 
ter^ hoth veffel and cargo were fold at public auction, on ac-> 
: of the underwriters. 


NEW-YORK, Twelfthly, That, in confequence of felling the cargo at 
^^^^^ auftion, it was fubjeftcd to the following charges, "viz. 

Advertifing for public fale, • - £ i6: 9:1 

Auction duty ... ^^6: 1:% 

Brokerage to vendue mafter, - - 159:12:3 


The reafon affigned by the confignees to the captain, for 
felling at auAion was, that the velTel and cargo had been aban- 
doned to the underwriters, and that they were fold on their 

Thirteenthly, That the captain depofed, had the cargo 
been fold at Plymouth for payment of falvage, it would not 
have brought, by 30 per cent, as much as it did in London. 

Fourtecnthly, That the feveral items charged by the con- 
fignees, viz. auftion duties, advertifing, commiflions, &c. &c. 
were proved to be regular and cuftomary charges. 

Fifteenthly, That by the aft of Congr^fs of the fecond of 
March 1 799, feftion 7, it is enacted, viz. " That, for the 
*^ fliips or goods belonging to the citizens of the United States, 
** or to the citizens or fubje^b of any nation in amity with the 
** United States, if retaken from the enemy within twenty- 
** four hours, the owners are to allow one eighth of the whole 
"value for falvage; if after twenty-four hours, and under 
** forty-eight, one jSfth thereof ; and if above that, and under 
** ninety-Ox hours,^ one third part thereof j and if above that, 
** one half thereof; all of which is to be. paid without any de- 
** duAion whatfoever, agreeable to the articles herein before 
^* mentioned." 

Sixteenthly, That the Supreme Court of the United States 
have determined that the fubjefts of France were to be confi- 
dered as enemies within the aft of Congrcfs, above in part 

Scvcnteenthly, That the rule adopted in the court of ad- 
miralty in Great-Britain, as to the quantum of falvage, is efta- 
blifhcd on principles of reciprocity, and regulated by the laws 
of that country, to which the recaptured property belongs. 
But Sir William Scptt, the 7th of December 1798, in pro- 
nouncing fentencc in the cafe of the Santa Cruz, declared it 
to be the praftice of the Court of Admiralty in England, to 

U.S. Co. 


Tcftore, on its own rule, American property, without enquiring NEW-york, 
into the prafBcc of America. The rule eftablifhcd in the ^^^ *^3- 
EngliOi Court of Admiralty, with rcfpcft to the recapture of mUTa^. 
Britiih vcficls, is as follows : ^^ ▼- 

If TCcaptnTcd by one of his majefty's fliips of war, one 
eighth \ ^Tid if retaken by the joint operation of one or more sue 33, Geo. 3. 
of bisTnaicflr's fhips, the Judge of the Court of Admiralty, ^w^aA'** 
or other court having cognizance thereof, fhall order fuch fal- 471^. 
va^ and in fach proportions to be paid to the recaptors by the 
ewnersi, as he fhall, under the circumftances of the cafe, deem 
£t and reaibnable. 

By confent of the counfel in the above caufe, it was agreed, 
that the jury fliould render their verdift, fubjcft to the opi- 
nion of the court on a cafe to be ftated, and if the court fhould 
be of opinion that the plaintiffs were entitled to recover a to- 
tal lofs, then that judgment fhould be entered in their favour 
for the twenty-five thoufand five hundred and eighty-one 
doHars. But if the court fhould be of opinion, that the plain- 
tiffs were entitled to recover only the amount paid for falvage, 
the auftion duties, together with the expences incident to the 
fales at auAion, and alfo the damage lols and injury the car- 
go (bftamed while in the hands of the captors and recaptors, 
then they find a vcrdift for the plaintiffs for the fum of nine 
thonfand £ve hundred and fixty-onc dollars and twenty-four 
cents. But if the court fhould be of opinion, that the da- 
mage fuflained by the cargo has not been properly afcertain- 
cd, or that the charges attending the fale at auftion in Lon- 
don were not properly incurred : then, and in fuch cafe, a 
proportionate deduAion to be made for the benefit of the 

Per curiam. The queftion arifing from thefc fafts is, as 
to the extent of the plaintifTs right to recover. 

Tlus, we think, is not a cafe of a total lofs. The news of 
the capture, recapture and arrival at Plymouth, all come toge- 
ther % and the only pretence of a total lofs exifting when the 
dmidbnment was made, is founded on the claim of falvage. 
The amount of this could not be afcertained with certainty, 
from any information poflTefTed by the afTured, at the time of 
the tbandonment. Although by the a£l of Congrefs of ad of 
Mirch I799> f» 7- the falvage of veflcls ancj goods recaptured 
the enemy, after having been in their poflcflion ninety- 


MEW-TORK, &t hours, is dbblifhed at one half their value ; and the rule 
^J^jyjjo^ adopted in the Englifh Admiralty, as to Cilvage, is founded 

M«ir It lor. on principles of reciprocity, aud regulated by the laws of that 
▼• country, to which the recaptured property belonged^ yet 

^ ' ^ Sir William Scott declared, on the 7th of December 1798, 
that it was the praAice of the EnglUh Admiraky to reftdft 
American property on the rule of the Engliih Admhraltyj 
fpitbout enfmring intp the practice of America* The Eng<* 
}i(h rule of falvage is one eighth, if recaptured by a fin^ 
ibip ; and if by the joint operation of two or more, the fidU 
▼age is left to be fettled by the admiralty, according as it (hall 
judge fit and reafonable. Under the circumftances, then, of 
this cafe, the rule of falvage would not be confidered as going 
beyond one eighth. There was not, at lead any definitive or 
certain ground for eftimating it higher. And as matter ef 
fdB^ we find that the falvage was at the time, liquidated and 
fettled between the confignee and recaptors, at one eighth. 
The information received by the infured, upon which the 
abandonment was made, was a mere newfpaper account ; and 
if information in any cafe, derived through fuch a channel^ 
would be fufficiently authentic to warrant an abandonment, 
we think, in the prefent inftance, it was too imperfeft, to 
afford fufiicient data to the infured, to calculate his afiual 
lofi. We are of opinion, therefore, that the plaintiff is not 
entitled to recover as for a total lofs ; nor, that the charges 
attending the au£Uon, can be confidered as a lofs, within the 
policy, to be borne by the underwriters. It was a voluntary 
a£l df the confignee ; done, probably, in confequence of in« 
formation of the abandcmment ; and made, therefore, at the 
peril of the owner. Had the fale at auAion been to afcertain 
the injury the cargo had received, and limited to fuch parts 
as were damaged, it would have been a reafonable charge \ 
but that appears not to have been the object or effeft of the 
auction. The damage had been previoufly liquidated by the 
captain and prize-mafter ; and if thofe damages, together with 
the falvage paid, be allowed againft the defendants, it is all 
the cafe will warrant. 

We are therefore of opinion, judgment ought to be for the 
plaintiffs, for the falvage and damages only. 


Francis Huguet, affigncc of the Iherin^ M»y 1803. 

agamfl James HalleU ^Kiti^ 

THIS was m motion in an affion on a hail bond to fet afide ^' ^^»^^ 


the proceedings and execution fucd out. It appeared, that Entering into 
loon after the faul bond was profecuted, the attornies for ^agrecmatt in 
botb. partMT £ad entered into an agreement, in the nature of niletT&^pi^ 
a nih^ to flay proceedings in the bail bond fuit on the ufual Sa^SndT^Mi. 
terms. That the defendant had accordingly filed fpecial bail after notice of 
Li ihc original fnic, and had given the regular notice, but had Sl^^^SIl^,^ 
sot paid the cofts of this fuit, as by the terms of the rule he tion,i«a wairer 
was boond to do. The plamtiff, on fpecial bail being en- l^^^^c^ 
tercd» went on in the original fuit, and in July one thoufand bond fuit; if the 
dght hundred and two, obtained final judgment, on which Sn the ^ 
eiecxitioa was iflbed, and thereupon iatisfa£Uon obtained. Af« Y^ }^ .w>Q 
tcr this the plaintiff went on with this fuit, entered a de£iult, cofU only up to 
and in January laft obtained final judgment, and ifilied an ^-^^^r^^ 
execarioo^ on which the iherifi^, by direction of the plaintiff's ban, and ^n 
Sttomey, levied' the cofts only, but ftill had them in his hands. g^Jfc^ fubfe- 
The defendant in the laft vacation obtained an order of his (^uent proceed- 
honour Judge Radcliff to ftay all proceedings. ides will be fee 

The ap(!lkatioQ now was, that the (heriff reftore to the de- 
fimdant ib much of the money in hb hands as exceeds the 
cofts which were due on the bail bond fuit when the rule to 
ftay proceedings was entered into. 

The counfel for the defendant produced an affidavit, by 
which it appeared, that the attorney for the plaintiff had fre- 
quently given the attorney for the defendant verbal notice 
that he was proceeding with the bail bond fuit. But it 
did not appear tliat any bill of cofts had been prcfented, or 
soy demand of a bill of cofts made on the one fide, or of the 
cofts 00 the other. 

Golden tar the defendant contended, that fpecial bail being 
fikd wider the rule, with an intent to ftay the proceedings on 
die bail bond, the plaintiff could not accept it or avail himfelf 
of &« ualeik it was to have t(iat operation. 

That the plaintiff would not proceed with both fults : at 
moft he had but an option to proceed with either, but having 
defied to purfue the original fuir, he thereby precluded him- 
(elf from going on with the other. 


N£W-VORK« That after the defendant had filed fpecial bail the plaintiBT 
May 1803. might have gone on with his original fuit, and the court 
would probably have compelled turn, by attachment, to pay 
the cofts in that on the bail bond^ up to that time. 

That there was no precedent for this double proceeding, 
which was a ftrong evidence that it could not be right. 

Stuyvcfant contra. It wa» the duty of the defendant to 
have paid the cofts on the bail bond, when he gave notice o( 
fpecial bail. The plaintiff had no other poffible remedy for 
his cofts than the mode he has adopted, and as the defend- 
ant's irregular condu£t has compelled the plaintiff to proceed, 
the whole cofts are due from the defendant^ and are nothing 
more than the refult of his own irregularity and obftinacy. 

Per curiam. This is a motion to fct afide proceedings on 
the bail bond on the faAs ftated by the affidavit. The fuit was - 
commenced in January 1802, returnable in April. After-' 
wards, in May, the aftion on the bail bond was brought. 
Shortly after, the plaintiff's attorney received notice of bail in 
the original VL&ian and then delivered a declaration. He 
went on to judgment, and proceeded on the bail bond to re- 
cover cofl:s. The plaintiff's attorney ftates that he called on 
the attorney of the defendant, and requefted him to pay the 
cofts on the bail bond, which he did not do, though no regu- 
• Cannon |^ ^ail had been put in. On this, proceedings were continue* 
Catchcart.Colc. cd in the bail bond fuit to judgment, on which an execution 
Caa. Prac 8a j^^ jg-^^^ f^^ ^j^^ ^^^^^ r^l^g application is to fet afide the 

exonerctur or- ..,,.,,, ^ . ^ . ^ , 

dered on pay- proceedmgs and execution m the bail bond fuit. It is eftab- 
JUr^ma^d* or lifl^^d, with refpeft to tendering cofts on a rule to ftay ppo^ 
bill prefented. ceedings on the bail bond, that it is the defendant's duty^ 
PhiBtiff wcnt^^ ^^cn the rule is obtained, to plead and tender cofts.* There 
am. The cofts was tto rule to ftay proceedings : but an equivocal agreement 
been paid*with- *" ^^^ placc of that rule, and (hould receive the fame conftruc- 
out waiting a tJon. It was the duty of the attorney of the defendant to 
The relief now plead and pay cofts. This would have been ordered had he 
to be, on paying ^^^ proceeded in the original fuit: but when he did that, it 

01 coils ordered, *^ , «> i . ., . , , 

thole of fuhfc- Was a waiver of his proceedings on the bail bond, and a waiver 

^ T^aifaTdift- ^^ '^^ "^'S^^' ^^ * P^^^ ^^^ ^^^ oppofite fide. The proceed- 
ing tbis appiica- ings muft be fet afide on payment of cofts up to the time 
* Tscc Grow ^^^<^" fpecial bail was entered and notice of that bail given.t 

adr^ Cumpbcll, 
II :. 



Potter againft Briggs. new-york. 

May 1803. 

THIS was an application to the court for an order on the 
beretofofc fherifi^ Lanfing, to amend a return according to 
the real crath o£ the cafe. The h£\s were, that the defend- 
ant had beeii anefted and duly committed to jail, but was one 
of many others who had broken out of prifon^ in the year of fiTc^c^!^ 
179ft. ^^ flicriff had been ruled, and had returned the ^^ ^>U ^^ 
due encotioo c^ the writ, a delivery of the defendant's iheriirtouu^ 
body over to one of his deputies, and a refcue, but omitted ^^!*^««. ^ 

i , . .i» cordjng to the 

umtf the commitment to pnfon. tratholUM caie* 

Troops on an affidavit ftating the preceding circumftances, Jg^ d^3am** 
iofified on the court's being under a moral obligation to order luui cfomed 
aictiffn acconling to the truth of the cafe. That by the ^^^^^1^^ 
falfe one made, the fheriff avoided that liability for the fiiU when many 
amount of the debt firom which nothing but an enlargement broke out. ^^ 
by public enemies of the State could exonerate him. It 
was a device to get rid of his legal refponiibility \ to leave the 
jjbintiSF ooiy to his aAion for a falfe return, in which he could 
iccover no more than his damage afhially fuftained, and in 
iriiichthe defendant's infolvency might be urged againft a re* 
covery of any thing. 

HaniScsn contra observed, that Troup had ftated the very 
rea/bn why his motion (hould not be granted ; that of the 
plaintiff's having It in his power to obtain a compenfation in 
an aAum for a £dfe return, to the full amount of what he re« 
ally had iiifiered» The proceeding now was, to get from the 
Iberiff a debt, of which not one fliilling could ever have been 
obluaed firom the defendant. That the efcape was at a time, 
fall in the recolle£Hon of the court, when a number of the 
dcbcofs broke out of the city jail. Several had been indi<EV- 
ed and fentenced to the State-Prifon. The application too 
W« very ftale : the fecond fherift* was now in office fince the 
and five years had elapfed in filence. Perhaps the 
light have fome doubt how far it could in this manner 

TitNip, in reply, infifted on his former portions. 
Fat cvriam. The plaintiff is not without remedy ; he has 
Ui afiion on the return. We do not fay that in no cafe 
tkdk a fCtom againft truth be amended, but in this, under all 
bi dbeniftances, we think the plaintiff muft be left to fuch 
I the law will give him without our interference. 


NEW-YORK, . >^. 

May 1803. John M Vickar and Co. againft Gideon Alden. 

whilftapub- THIS was a motion for judgment as in cafe of nonfuit 

lie profecutor is ^ .. . , ,. n» « . 

attcndine the ^OT not proccedmg to trial according to ftipulation. 

dutio of hisof- Rikcr, diftrift attorney, oppofed the motion on an affidavit 

thou^^h called ' dating that he was employed for the plainti£F, and had been 

**» ?^'^ P"' prevented in confequence of his official duty as public profe- 

the calendar; cutor, from attending the court when the caufe was called on^ 

but if after the ^^^ ^x^^ „^ afterwards been able to bring it to trial, 
court Ox oyer " 

and terminer Boyd for the defendant. The public profecutor was only 

yottngCT'Tflbcs counfel : it is true the attorney is his iM-other afting with 

betncd,hewill him; but the cafe is a hard one. The defendant was a 

enct and ^ Ik- c^p^^in of a fhlp in which the plaintiff had Shipped feveral 

blc to non-fiiit bales of cotton, all of which had been delivered according to 

tng to ^iid, in the bill of lading ; but one, not worth more than fixty dol- 

the feme man- ij^-g fcad been damaged, and he had been held to bail for the 

Bcr as other per- o * 

fons. whole fhipment, to the amount of two thoufand, had been 

obliged to depofit property to obtain fpecial bail, kept here 

many months, and had loft, by ;the detention, more than the 

fum for which he was arrefted. 

Radcliff and Livingfton, Juftices. To public officers in 
the city of New- York, where the difiercnt courts are held at 
the fame time, indulgence has always been (hewn. Their 
caufes have been called on, but not put down to the foot of 
the calendar if engaged in official duty. They did not lofe 
theu: preference of other caufes, when the public officers at- 
tended. An official fituation would otherwife fubjedl them to 
peculiar hardfhips in this city, though in other parts of the 
ftate the fame inconveniences do not exift. Radcliff J. 
wifhed to know whether, after the adjournment of the court 
of oyer and terminer, any caufes, younger than the one in 
queflion, had been tried. 

Thompfon J. There has been a lach in the plaintiffs i 
the ftipulation ftiews this is the fecond. The plaintiff ought 
to have employed other counfel, for the defendant fhould not 
be prejudiced : being concerned as public profecutor ought 
not to caufe any injuftice to the defendant : he ought to have 
the effeft of his motion. 

Riker for the plaintiffs, offered to confent to common bail. 

Livingfton J. As the plaintiffs have confented to common 



W thoogh not impofed. Judge Radcliff and myfelf think NEW-york, 
the motion muft be rcfiifed. The plaintiflF, however, will ^^*i^ 
jipolate and paj the cofts of the laft circuit. j. M'Vickar 

On its being fuggefted that younger caufcs had been tried "^.^ 
at the circuit, 'after the court of oyer and terminer had rifen, Gideon Ald«i. 
the coort deferred pronouncing judgment till the calendar - 

ihoald be Gomined and that faft afcertained. By a certifi- 
cate, Bom the clerk of the court, it appeared that the prefenc 
fait bzd been called and pafTed, and the affidavit of the do- 
fendaDf's attorney ftated, that younjger iffiies had been de- 
(mnined. On thefe grounds the court ordered judgment as 
in cafe of nonfuit, faying the certificate of the clerk was 
equfralent to an affidavit, and it muft be intended the caufe 
lad been regalarly pafled. 

W. P. Van Nefs againft George Gardiner* 

THE laft proclamation of a fine had been omitted, it ought ^^ procU- 

' o mstion 01 a fine 

legular/yto have been made laft term; the application now was, made nunc pro 
to have it made nunc pro tunc and indorfed as of the laft term. ^'^"^ 

Per curiam. We fee no objeftion to it at prefent. ♦ * ^^ '"'""'• 

Hide accordingly* 

Ex parte Manning. 

THIS was an application on a petition, to wliich the court 
gave the following anfwcr. 

Per curiam. The court is called on to allow againft the 
county of Albany, an account for expences incurred by a pro- 
ficntor in carrying on a public profecution. The application 
is made under the fifteenth fe£):ion of the aft f ^^ regulating 
certain proceedings in criminal cafes/' This claufe, taken in 
connexion with the one that follows, we confider as limiting 
the d ifer ct i on of the court to thofe pcrfons who are objects of 
pidiiic charity, and as never intended to apply to thoTe who 
on bear the expence of difcbarging their duty by a public 
pralectttion. The next claufe limits tue difcretion of the 
, to twenty-five dollars : and this, according to the 15th 
only on confideration of the circumftances of the pro* 
r : the words are bis circumftances : therefore, till they 

A pubCc pro- 
fccution muft 
be ac the ex- 
pence of the 
profccutor, un« 
Icfi on difclo- 
fure of hit ci<^ 
cumfUnces to 
the court, they 
find him an ob^i 
jed of public 

t lift Marck 
1801. Sec I 
Rev. Law ft M 



£x parte 

NEW- YORK, are difdofed, the court has not any difcretion. to allow t:om« 
^^y '^3- penfation. However hard it may be to individuals to attend 
a fuit^ and to compel a witnefs to leave his home, that is a fub« 
j^A in which the legiflature muft interfere. We can give no 
other conilderation to this than what the interpretation of the 
a£b allows. There are charges here for fums paid to witnef- 
f(», and the aA ftatcs that no witnefs is to receive a compen* 
fation, unlefs poor* 

Mr. Attorney General. Allowances, iimilar to that prayed 
for, have been made at oyer and terminer. 

Livingfton J^ When preiiding in that court I have refu-« 
fipd them, and de^cided according tp the opinion of the court 
WQw delivered. 

A TefTel drirr 
en by diftrefs in- 
to a Frendi 
ffirt, Twhere 9, 
part of her car- 
ffo is taken by 
tne officers of 
the govei*n- 
' ment, and ihe 
prevented from 
taking away her 
origiiu^ lading, 
Jtiay without 
incorring the 
penalties of the 
^6t9 forbidding 
aU intercoune 
with the de- 
pendencies of 
i'rancc, pnr- 
ichafe and load 
with the pro- 
dace of the 
(tountry. A 
pa^port grant- 
ed by any par- 
ticular govern- 
ment to protcdk 
againft its own 
cmifers, is not a 
failing under the 
prot^ion of 
the flag of that 
gQyermnent, fq 

Ebenezer Jenks and others 


Richard S. Hallet and Walter Bowne. 

THIS was an aAion on a policy of infurance : a fpecial 
verdiA was found containing the following faAs. 

That on the twcnty-fevcnth day of April in 1 799, the de- 
fendants, for a premium of twenty-five per cent, infured for 
the plaintiffs againft all rt/ks^ one thoufand dollars upon twen* 
ty-Eye thoufand pounds weight of coffee, valued at twenty 
cents per pound, on board the iloop Nancy, from Hifpaniola 
to St. Thomas. That in the margin of the policy was in* 
fcrtcd a claufe in the following words, ** warranted the pro- 
perty of the plaintiffs, all Americans,'' but that the words 
all Americans^ were added after the policy was fubfcribed ; 
that the iloop Nancy was built at Rhode-Iiland, and belong- 
ed to citizens of the United States, reiident in Rhode-Ifland, 
as well when fhe left that ftate as at the time of her capture, 
and, being chartered by the plaintiffs, failed from New-Port 
in Rhode-Ifland, on the twelfth day of December, in the year 
1798, on her firft voyage to the Havannah; that in tl^p courfe 
of the faid voyage (he was compelled, being !n diftrefs, to put 
into Capc-Franfois in the ifland of Hifpaniola^ a country in 
the pofljcffion of France, where Ihe arrived on the fifth day 
of January 1 795) ; that the captain and fupercargo of the 
flopp were part pwncrs of the cargo, and ar^ two of the plain* 


tifi ia thisfuk; that having fo put into Cape.Fnm9ois, the NE^-yo&k. 
cargo was landed to repair the vcflcl 5 that the public officers ^*^ '*®^ 
aOing under the French government there, took from them E.^jSM^rlL 
nearly all the provifions on board the floop, and the captain s7iM\ 
and fiipercargp were permitted to fell and did fell the re- ud W. Bowoe. 

mamder to difibcnt perfons there 5 that the captain and fu 

percargo made a contraft with the public officers^ hj which, J^J^^JluS^- 
thcy werr to be paid for the provifions in thirty days, but the terontheTcflcL 
paymort was not made 5 that with the proceeds of the re- Sa tCTJi'^' 


mainiog parts of the cargo they purchafed the whole of the canoot inuiHi 
cargo which was on board at the time of the capture, and alfo ir2<2fcSn!l*** 
ieventeeo hogflieads of fugar, which they fent home to New- 
York, on fireight. That the faid officers forbade the faid 
Biafter and fupercargo of the floop from taking on board the 
cargo landed from the faid veficlf or from conveying from the 
laid Vfland any fpecie, by reaibn whereof they were compelled 
to take the produce of that country in payment ; that the 
floop, with thirty thoufand weight of coffee on board, twen- 
ty-five thoiiiand pounds weight of which was intended to be 
io&red by the prefent policy, failed from Cape-Fran9ois, on 
the twenty-third day of February, in the year laft aforefaid, 
on the voyage mentioned in the policy of infurance, having 
cm board the ufiial documents of an American veilel ; that 
the Qoop, in the coarfe of her faid voyage, was captured by a 
B^itiih frigate and carried into the ifland of Tortola, and veC- 
fel and cargo libelled, as well for being the property of the 
enemies of Great-Britalo, as for being the property of Ameri- 
can citizens trading contrary to the laws of the United States; 
that, at the time of the capture of the (loop, the following 
paper was found on board } '* Liberty, Safe ConduA, Equa* 
••lity-: — At the Cape, nth Thermidor, fixth year of the 
^ French Republic, one and indivifible. The General of the 
^ divifion and private agent of the Executive DireAory at St. 
** Domingo, requefts the officers of the French navy and pri- 
^ vateers of the Republic, to let pafs freely the American 
^ vcflel called the mafter 

" f ni f t ^lj of Mr. E. Bom Jenks, merchant at Providence, 

* ftttc^of Rhode*Ifland, in the United States, arrived from 

* die laid jplace to the Cape-Frangois for trade and bufinefs. 
f Ttufi GtisBen French Conful, in the place where the faid 


NEW-YORK, ** vtScl (hall be fitted out, is inirited to fill with her name/, 
}^IJ^ ^* and the captain's, the blank left on thcfc i»refents ; in at- 

B-JeokftandaL '^teftation of which he will pleafe to fet his hand hereupon* 
^ 8^'hj^ {Signed) J. HEELOUVILLE. 

and w. Bowse. (Signed) Gauthier, the General Secretary of the 

' Agency." 

which paper was received on board the floop at Cape-Fran- 
9ois9 and was on board when (he left that place ; that the 
. property infured by the policy aforefaid was claimed by the 
faid Zebedee Hunt, and was condemned by a fentence of the 
faid court of Vice-Admiralty, in the following words : *^ that 
** the faid floop Nancy, and cargo on board, claimed by the 
** faid Zebedee Hunt, as by the proceedings will fhew to be 
^ enemies property. And as fuch, or otherwife, liable to 
^ confifcation, and condemned the fame as good and lawful 
^ prize to the captors/' That the plaintiffs are Americans 
:ind were owners of the property infured, and that the fame 
was duly abandoned to the underwriters. 

Hamilton and Pendleton for the defendants. The plain- 
tiffs are not entitled to recover. Firft, becaufe the warranty 
IS not true. Secondly, becaufe the voyage infured was illegal. 
On the firft point. The fentence ftates that it is enemy's 
property : and even if not, the privilege of neutrality was 
forfeited, by the part owner's accepting a pafTport from an- 
other country, and failing under the protection of that flag* 
In the cafe of the Vigilantia, i Rob. Ad. Rep. 13, 14, 15, Sir 
William Scott exprefsly lays it down, that a veflel, failing 
with the pafs of a foreign country, fhall be deemed of that 
country whofe pafs fhe carries. It cannot be contended that 
the paper alluded to was a clearance. That according to i 
Valin, a82 contains *' the name of the mafter, and of the 
'^ veflel, its tonnage and cargo, the port of departure and 
^^ deftination." Here blanks are left, and the paper bears 
date before the arrival of the veflel, {hewing it was made out 
for her, on a preconcerted plan of trade and bufinefs. 

On the fecond point. It is only neceflary to look at the 
dates of the aA of Congrefs and the tranfadions. The firft 
aft was paflcd in June 1798, to take effeft on the firft of July 
following; the fecond, on the 9th of February 1799, to be in 
force on the 3d of March following : both thefe a£ls require 
a bond to be given, not to enter French ports for trade and 


traffic, nor to trade there though driven in by ftrefs of wea- New-york 
dicr. The Nancy faUed the 12th of December 1798 ; put ^'^r i8oj. 
mto the Cape, January 1799 • ^^^^ on the 23d of February Ej^^a^a 
fbliowing, and on the 23d of April next the policy was ef- « c I? 1 
fefted : under the afts of Congrefs therefore the fellmg her and w. Bown 
cargo was VUegal, as even in cafes of putting into French ports — ^— — 
firom diChef^ traffic is forbidden. 

Hoffinan and Bogert for the plaintiffs. The jury have 
tuprcfslj fbond the warranty to be true, and the inconclufive- 
nels of A>reign fentences is fettled in the cafes of * Vanden- * ' ^^^ ^«=* 
beuvcl V. Church, and the fame againft the United Infurance ^'^^^'^^ 
Company of New-York. This therefore is a complete an- 
fwer to the fi/ft objeAion. But as the fentence is ambigu- 
ous,f and affigns as a caufe of condemnation, that which the f see Vafe 1 
Law of Nations does not warrant, it is doubtful whether in ^"- * ^-^ 
£ng\a&d it would not be examinable, i Marfh on Inf. 291. 333.' 
294. BcmardI v. Motteux, Doug. 554. The paper talked 
of as a pafs, was merely a clearance and paiTport to fecure 
againft /eizure by French veiTels : nor can the citation from 
Valin be fappofed to be the obligatory form on all people, ac« 
cording to the pofitive rule of the Law of Nations. The fe« 
cond objeAion is of as little force as the firft. The policy 
was fubfcribcd by the defendants with a full knowledge of the 
h&s 2nd law. Though againft a ftatute prohibiting certain 
voyages ftich a circumftance could not prevail, it was expelled 
the underwriters would not have made it a ground of defence. 
The diftrefs however and force, which are ftated in the fpecial 
Terdift, do away every obftacle to a recovery from the pre- 
tended illegality of the voyage. The cafe of Richardfon and 
others in the Diftrift Court of New-York, affirmed upon an 
appeal to the Circuit Court of the United States, was ftronger 
than the prefent, and is on this head a full expoHtion of the 
aft of Ccvigrefs. There a vcflel bound to a neutral country, 
wai captured, carried into a French port together with the 
cargo^ condemned and fold ; the owner voluntarily purchafed 
at tint place another veflel, loaded her with fugnr and came 
to New-York ; ftie was feized and libelled under this very 
■ft I the Judge of the Diftri£l Court acquitted both veflel 
and cargo as not within the fpirit of the ftatute. This de- 
dSoB^ from its confirmation in the Circuit Court, is now the 
Law Af the Union. 


NEW-YORtt» Per Curiam. It will be obferved that tliis b the cafe of 
v^^'i^ a fpecial verdict, and the court can intend nothing but what 

£. jenktaiidaL '^ found by the jury. This remark is an anfwer to much ol 
Hallet ^^ reafoning on both fides, and narrows the grounds of difcu& 

•nd w. Bewne. fion to the following points : 

I ft. Whether the veffel and cargo, although literally Ame- 
rican according to the implied warranty in the policy, had 
forfeited the privilege of that charaAer, by accepting the pro- 
tection of a pafiport from one of the belligerent nations i 

2d. Whether the purchafe of the cargo in a French port 
was within the prohibition of the a6k of Congrefs of the 13th 
June 1 7981 and an illegal trade. 

As to the firft, it appears that the Nancy failed with thd 
ofual documents of an American vefTel, and was in erery re*^ 
fpe£t entitled to be confidered as fuch, unlefs the French pafll 
port which fhe received at St. Domingo would deprive her o£ 
that privilege. The general rule by which to determine the 
national charafler of a vefiei is the domicil of the owner. In 
the prefent cafe the owners refided in the ftate of Rhodes 
Ifland — We admit the exception to this rule where the vcflel 
navigates under the flag or aflbmed character of a cduntry to 
which fhe does not belong-^but the inftance before us we ap^ 
prehend is not the cafe of a vefiel failing under that proteAion^ 
or, as it is termed by Sir William Scott, under the pafs of si 
different nation ; her papers were all American except the 
one in queftion ; fhe was in fad American, if we believe tha 
verdiA, and fhe profefied no other than the American charac^ 
ter. The additional paper which fhe received on board at 
the Cape, according to its import, was not inconfiftent with 
that charafler $ on the contrary (he was therein ftated to be 
the property of Mr. Jenks, merchant at Providence, ftate of 
Rhode-Ifland j that paper, accompanied with the other do^ 
cuments (he poilefied, could not be evidence of her being 
French property, or employed as a French veflel : fhe had 
come from a French port, and was deftined to a Dutch 
Ifland, both of which were lawful ; and it was natural, and We 
believe is ufual in fuch cafes, for veilels to feek for proteAion, 
and guard themfelves againft the cruifers of the power whofe 
ports they have vidted. This paper, unfupported by other 
evidence of belligerent property or employment, could be re- 
ceived in that light only. ConneAed with the fa€t that all 



intercourfe had been prohibited by our government at that neW-YORX, 
period with the French nation, we think it affoj^ded a reafon-* ^*T ^803. 
able ground of fufpicion that fhc was employtd in the fervice jLU^^md^ 
of the French and perhaps the rifk was thereby enhanced, but ▼- 

fo far as that (a^^ was material, the prohibition was known to and w. Bowne. 
the u»dcT^*TUers before thej fubfcribed the policy^ and they » 
muft ha\e cRimitcd the increafed danger, if any, that refuhed 
fiom it. Of itfelf, wc think, it would ajBford an additional fe* 
curiry againft one of the belligerent parties, (the French) and 
could not alone be a caufe of capture, or fufHcient to authorize 
a Jetention by any other belligerent. In pra£Uce, we believe 
k is cuftofnary for veflels to endeavour to proteA themfelves, by 
papers of this defcription from the public agents of every na- 
tion from which they can be obtained, and they have beea 
confidered as affording fecurity, inftead of endangering their 

In determining the fecond queftion it is again neceilary to 
recur to the fa£b found by the verdift. From them it ap« 
pears that the veilel was compelled to put into the Cape in 
difirefs ; that when there the cargo was landed for the pur-« 
pofe of repairing her ; that nearly all the provifions were ta- 
ken by the French government which prohibited rclading any 
part of the cargo, and permitted to barter what was left for 
the produce of the ifland only, and to dirpofc of it in no other 
way ; if this be true they had no alternative but to comply 
with the terms prefcribed, or jQicrifice the whole o( their pro- 
perty. Their aAs Were a£ls of necellity and coercion, and 
the bw of Congrefs which fufpended the commercial inter- 
courfe with France and her dependencies, cannot rcafonably 
be conftrued to apply to a cafe of this defcription ; its objeft 
was to i^event an intentional, of voluntary traffic, and not to 
compel a facrifice of property or inflift a penalty in cafes of 
diftiefs or neceffity. That would be a conftrudion cxccffivc- 
ly fievere, and contrary to the fpifit and intent of the a6t< On 
thb point weunderftand a iimilar dccition has been made in 
theDiftrifi; Court of this ftate, which on appeal, was affirmed 
^ Jndge Patterfon in the Circuit Court of the United States. 
We are therefore of opinion, on both points, that the plain* 
Ufi we entitled to recover. 



^^[^j^ A. McGregor againft C Loveland 

A. Nporegor The fame againft John 6. Amet. 
cjJiduid. The fame againft the fame. 

If alter fuit THIS was a queftion of praAice fubmitted to the decifion 

bT^JS^'c^^^ of the court on the following ftatcment : 

partial paymeot The above fuits were brought on notes exceeding two hun* 

lur^^^a cw" ^^^^ *"^ ^^ dollars each j afterwards a fum of money was 

novit be taken paid, and fecurity given by Loveland the indoHer, by which 

Supreme Court *^^ amount was reduced below 250 dollars : cognovits were 

cofta cannot be then given for the r^iidue by each defSmdant. It was under* 

flood at the time, by the defendant's attomeyi that the judg* 

ments fhould carry Supreme Court cofts. Query. May not 

the clerk tax them accordingly ? 

Per curiam. No : the plaintiff fhould have taken hia 
cognovit and entered his judgment for a fum above 250 dol- 
lars, to entitle to Supreme Court cofts ; they cannot others 
wife be allowed. 

The following queftion was alfo fubmitted : 

Praaice as to Several fuits are conlblidated by rule on a policy of afiur- 
folidiSm r^' *^^^ » *^ ^^^ leading fuit fhould recover more than 250 dol- 
lars, and the other fuits leis, will the party be entitled, by 
virtue of the confolidation rule, to Supreme Court cofb on 
the fuits that are under 250 dollars ? 
Per curiam. Wc thii^ not. 

James and Samuel Watfon againft Frederick 
Depeyfter & Co. 

THIS, and three other fuits were commenced, againfl the 
promifed be- above defendants and feveral others, on a policy of infurance 
^y*^**^^!^^!^ on the brig Defiance, and a confolidation rule figned and cn- 
theknowltd^ tered. About a year afterwards the defendants, in the above 
^odSi^fS ^""^» compromifed with the plaintifli who cancelled the policy 
about cofts, each as to them ^ of thb the defendants' attorney had no infbrma* 
party pays bit ^j^^^ ^^^ ^^ ^^^^^ ^^^ ^^^ ^^ difcontinue. Or other rule en- 
tered, and the other fuits proceeded. The principal caufc 


icnt on to trials and the jury found a verdiA for the defend- KEW.yqrk, 
ant, which was acquiefced in. The defendants' attorney ^^«8o3. ' 
tbereopon entered rales for judgment as in cafe of nonfuit in j. & s. Watioa 
all the caofisy porfuant to the confolidation rule, and the cofts xwro* 
were taxed and judgment rolls ready to be figned. It was ' &£? 
now fntaimtted to the court on tkefe fads, to decide whether ■ — 

the rules for judgment, and the judgment for coils as in cafe 
of Tujofukf were regular or not ; or, whether they ought to 
be Hbl aiide. N. B. At the time of compromife nothing was 
^ about cofb. 

Herman, as amicus curiae, informed the bench, that in 
-WaBace ▼. Lockwdl it had been decided, that if a party com- 
pramifed without knowledge of his attorney and the plaintiff 
went on, each paid hb own cofts. 

Per curiam. In every fuit each party is fuppofed to ad- 
iraace as his fuit proceeds. If each has paid cofts and then 
Aey compromife» the fuit b fettled ; for the tranfaftion im- 
ports no (uither proceeding is to be had ; nothing more than 
a fimpfe difcontinuance to enter on record, and nothing being 
fud about coils each muft pay his own. The parties ought 
to hmye infiormcd their attornies there was a cumpromile. 

Hudfon againft Henry. Noti«of m^- 

" ' tion for jodg- 

MR. Hemy moved for judgment of nonfuit againft the »«*•»>."> jaiv 

piaintifr tor not proceedmg to trial. Notice of the motion bycheouulitoo: 

had been fent to the advcrfc attorney by the mail. SS^hSi? i 

Fcr curiam. This notice is infufficient. A letter may notice nighr. 

mifiurry-— or the attorney may be abfent when the mail ar- • sw'c^'ana 

rives, or not immediately inquire for letters, though an affida- ^o- ^^^ Staf- 

vit of a plea fent by the mail might fave a default. Let the prac 107. i^- 

dcfendant take nothing by his motion.* ^.^^ Paddock 

" ' ibid. i;,5. 

Manhattan Company againfl Smith in cuflody. 

THIS caie was brought up from the Mayor's Court. The To an api>lica. 
was to prevent the difcharge of the defendant on Jj^^^^^^r ^oc 

: of the plaintifis' not proceeding to execution in due havinfr been 

» according to the aft for the relief of debtors with rcfpeft '^^'t^^^'; 

ID die impriibnment of perfons ; the counfel for the plaintiff moiuht after 
Brantingham*s cafe. Cole. Cas. Prac. 4^- The Jl^'^fwcr'* 


MSW^VORK, courty without hearing any argument for the defendant, faid 

^^toy 18^3. ^jjg authority cited was conclufive. 
J. It 8. Wttfon Livingfton J. acquiefced becaufe it had been fo decided, 
tJL-a ^* confcfled he did not believe the legiflature intended the 
' &Co. conftruftion put upon the aft by the court, fiiould ever be 
■■' given to it. The rigour of the praftice was in his opinion 

w'^ fi^w**' enough to condemn it, for he thought the negleft in the plain- 
ly chuged. tift' ought to accrue to the advantage of the priibner. 

Steele and ux. at the fuit of Tennent. 
Steele, and Fuller, his bail, at the fuit of Ten- 
nent, affignee of the £heriff of Wafliington. 

Attomejonbe- THE original fuit was trefpafs quare clausum fregit, in 

Jng retamcd for .^^ich Steele and his wife had been held to bail under the fta- 

fi dcicndant 

ihould examine .tute i* after the return of the writ the plaintiff obtained an 

to« r^tE^S^ affignment of the bail bond on which he iffued the ufual pro- 

is but fair prac- cefs, filed his declaration on the firft of Oftober 1802, and en- 

t«ora«y^^^- itcred a default the eleventh of November j on the 17th the 

dofe them : for partner of the plaintiff's attorney received, when in hi$ office, 

fo*°in a fuit"*^ notice of the retainer of an attorney on behalf of the defcnd- 

«ga*nft bail, af- ants in the bail bond fuit, but no information was then given 

tered execution of ^ny default having been entered. In January following 

©fwritofinqui- final judgment was figned. On the eighth ol March 1803, 

rj and intcrlo- , ^ ^ ^ i.,rj • i.i.-, Ljr- i- 

ctttory judg- the attorney for the defendants m the bail bond fuit was lerv- 

?'^f"*2a<r°*^ ed with a notice of executing a writ of inquiry f in the ori- 

terms. ginal fuit ; a declaration alfo in the fame fuit was then dcliv- 

tZoi^t. iSTi! ^^» which the plaintiff's attorney fwore was merely to ap- 

3. prize the defendant of the nature of the demand ; but the at* 

of^dl^oa of ^J^°cy of the defendant fwore it was ferved abfolutely not on 

31ft March any condition, and that he did not know of the entry of the 

bowevcrff^i* default in the bail bond fuit or that any declaration had been 

pught not to be filed 5 that afting under that impreflion he did not attend the 

pn application , ri.r- • 1 1 i« 

po the court by execution of the writ of mquiry or apply to the court laft 

PV>t«)". term. On thefe fafts the defendant now moved that the dc« 

fault and interlocutory judgment in the original a^on and ^11 

the proceedings in the bail bond fuit be fet afide and the de* 

fendants in the original caufe let in to plead. 

Per curiam. The court are of opinion the defendant's at- 
torney was in default. He ought to have fecn that theprpccecl- 


wp in the fuit on the bail bond were regular. He fhould new-york, 
hive called after the default and tendered cofts. We do not ^^^ **°3- 
fiy that the not difdofing the entry of the default in the fuit x & s. Witfoa 
againft the bail amounts to a furprife, but it would have been ^- 

lathcr more candid to have mentioned that circumftance. " ^Co" 
Let the ^t&dgment on the bail bond ftand as iecurity and the ■ ■ <■ 
cofts on thar remain alfo. The default and fubfequent pro* 
ceedin^ 5 10 the original fuit to be fet afide on payment of the 
CO& of entering the judgment under the ftatute, and execu- 
ting the writ of inquiry. The defendant to plead indantcr 
to the declaration filed, take fhort notice of trial, and pay the 
cofts of this application. 

Iivingftoo J. I think the cofts on the bail bond ought to 
be paid. 

William Lowry againft Andrew Lawrence. 

ON demurrer. The memorandum was of another term. _. . 

DC It remembered, that heretofore, to wit, on the third the writ is the 
Tucfday of July in July term, in the year of our Lord one of aJTAdT^ 
ihoufand, eight hundred and one, &c. came William Lowry, caufe of adion 
and broa8;iit into the faid court then there, his certain bill, a^t ;^*h *^^ 
£cCm ' pear otherwiie 

The declaration .was on a Bill of Exchange made in 1797, JhcV^dinpit 
presented for acceptance on the fir ft of Oftober 1801, and »■ |^ o" <?«- 
rcfiiied, of which notice to the defendant, who, on the nth 
of OAober, promifed. 

To this the defendant demurred, and {hewed for caufe, 
that although the faid declaration is entitled of the term of 
July, in the year of our Lord one thoufand, eight hundred and 
one, yet the faid feveral promifes and undertakings in the faid 
declaration mentioned, are therein ftatcd to have been made 
ciQ the eleventh day of OAober, in the year laft aforefaid, 
which is fubfequent to the time of the exhibiting the deciara" 
tim of the faid William againft the faid Andrew, and for that 
it a ppe a l' s by the faid declaration that the pretended caufes of 
a&ion therein fpccified had not, nor had either of tliem ac- 
Oned to the faid William at the time of the exhibiting his 
fiidtUl in manner aforefaid. The defendant in^iied that, 
\lf the pra£kice of this court, the fuing out th- v.rit wcs the 


SIEW-YORK, cominencemeBt of the aAion | and if fo, the dedara 
»(^ xtej.^ ihewed on the face of it, no caufe of a£tion when the fuit 

Pgden for the plaintiff. It is contended on the par 

the plaintiff that nothing appears on this record to warra 

judgment for the defendant, 
s Burr. 95a 1*7 ^^^ courfe of the court the JUing of the bill is the c 

johnfon & al mescement of the a^Hon in a legal fenie. 

LordTMant- The latitat is confidered only as procefs. 

fidd't opinioa The adUon is not deemed to be commenced until the b! 

Cowper 454. Sled, though the real time of fuing out the latitat is alio 

Foftcr T. Bon- jq be ihewn, where it becomes material ; as to prevent 
running of the ftatute of limitations, &c. If fuch a nece 
exifted in this cafe the aAual time of fuing out the final 
cefs might have been ihewn by plea. But where it does 
exift the fi£tion of law will be preferved, and efpeciall 
when it is in furtherance of juftice. On this occafion, 
true queftion therefore is, when, in a legal or technical fe 

I Com7n*8 !>!• ^'^^ ^^^' aflion commenced i This can only be afcerta 

gcft loj. Mod. by fhewing the time of fiing the ML The time of t\ 
^^ the bill may be examined into to fhew the time of comn 

cing the aftion. It ought to have been (hewn by pleadin 
this cafe. Not being (hewn the court are at liberty to 
fume that it was after the caufe of adtion accrued. The • 
tion of the declaration is matter of fiAion and not conck 
upon either party. If it be conclufive, all actions by bil 
privilege \ aAions againft attomies of the court \ a£t 
again(l abfent or abfconding debtors, giving fecurity to ap] 
to any declaration which may be filed by the petitioning c 
itor, would be defeated in all caies in which the caufe of 
tion accrued, during the vacation in which the dedaratioi 
filed. Becaufe in all thefe cafes the declaration is entitle 
the preceding term, and muft neceflarily be ftated in 
memorandum to have been brought into court of that te 
This do^ine involves no hardfliip upon the defendant \ 
caufe, if in the firft inftance procefs be iffued before the cs 
of aAion accrued, a Judge will difcharge on common I 
So if the bill be filed before caufe of aAion accrued, the 
tual time of filing it may be (hewn and pleaded in abatem 
or in bar. In this cafe, )X does not neceflarily follow, I 
the caufe of aftion did not accrue before the conunencem 


of Ae t£tion, and the time of that commencement not being NBW-york, 
liievii, the court are at liberty, and ought to prcfume it to J^^J^^^fJv, 
hive accrued afterwards. -ve. Lowry 

In addition to this general reafoning on this fubjeQ, it may ^ , ^' 

m f t« .?-.#> • . 4»^*.. .A. Lawrence. 

be obierved that, m this mltance, the real caufc of afiion is 

fiated to ba^c accrued in 1797 ; being the date of the bill of 
exchange and long prior to the ifluing of procefs. It is the 
atTumptiooi ibunded on that undertaking, which is ftated to 
have been made in OAober 1801 ; and the time of the 
promiic being wholly immaterial, the court will, in this cir- 
com&ance, iee an additional motive for adopting the principle 
contended for by the plaintiff. 

Per coriam. This cafe comes before the court on demur* 
xtr. It was an aAion of affumpiit, and the declaration cap- 
tioned of Jaly term 1801. The time laid in the declaration, 
at which the cau(e of aAion arofe, is on the nth day of OAo* 
ber 1801. To this there is a fpecial demurrer, alleging for 
canfe, that the aAion appears from the declaration to have 
been commenced before caufe of a£kion arofe. It is, we take 
k, well fettled that if the plaintiff at the commincement of his 
(nit had no canfe of aAion a fubfequent right would not 
maintain his a£kion. And it has been fettled in this court, in 
the cafe o( Carpenter v. Butterfield, that as to every material 
parpok^ the iffuing the writ was the commencement of the 
fiiic— ib that a note purchafed by the defendant after that 
time coold not be fct off againft the plaintiff's demand.* ' ^ ^Ut^^' 

_„,,. ^, -,rt 1 1 Long, Cole Ca. 

The declaration mult be captioned of the term when the pnc. 103. that 
wit is returned ferved. This point is fettled in the cafe of '^^^^T^^''\ 

• m bail, and plead 

Smith T. Mnller, and it is there alfo determined that the in chid, he can- 
pluntiff cannot recover any demand after the term when the Jj?^ "(X^tli 
writ is returnable, though before the declaration is aiiually vantage of the 
/ML Juftice BuUcr there fays, according to the anticnt prac- ^'oui^fo^/''" 
tice the declaration was actually delivered the fame term the caufe of 2&'um 
writ was returned, and it was only in cafe of the plaintiff that ^^j^ \^ h^Utt^ 
the tinie of aftual delivery was enlarged, but ftill it muft be <J«bt due. appli- 

ik . , , ,. , cation ought to 

rwriklfi e u as delivered nunc pro tunc. be to a judge or 

Upon the principles of thefc authorities therefore, it muft *« '^^""o^l^*'' 
from the face of the declaration in this caufe, and the bail 

: moft neceflarily intend the fafb, that the writ was re- 
iin July term 1801, atid of courfe the a£lion, both in 
Afly and technically fpeaking, commenced previous to that 


l€£W.YORK, time. But the plaintiff alleges his caufe of a£tion to UaVli 
May 1803. ^ifejj on the I ith of Oftober thereafter. We think there- 
fore it appears upon the face of the record, that the action 
was commenced, before the right of adtion accrued. The 
time of actually filing the declaration cannot, as contended by 
the plaintiff's counfel, be confidered the commencement of 
the fuit : if therefore the defendant, by plea, had put the 
faA in iffue, it would have been an immaterial fadl ; all |he 
material fa£ts appear by the plaintiff's own (howing. In the 
Boug. 6z. cafe of Ward v. Honeywood, the judgment was rcverfed on 
y.,ar(^^^w pn>- wHt of error, on the ground that it ap^^eared on the face of 
^l^^^ ^^ the record, that there was no caufe of action when the fuit waa 
byj^i^ j and commenced-^if this would be error after judgment, advantage 
t^ SlISL/ ^^7 <=«^^»^ly be taken of it by demurrer. 
ui&2nerigimai. We are therefore of opinion that judgment ought to bo 
^^.TLeoo. for the defendant. 

301. See the Livingfton J. In England it is fettled, that the filing of 2 
Afhhurft J. in ^^^ ^^ declaration is to be regarded for every effential purpofe 
Doug. 6a. as the commencement of a fuit, Vid. Cowp. 454 — but in Car- 
penter and Butterfield, decided by thb court, a different rule 
was adopted. The iffuing of a writ was there confidered as 
the beginning of an a£kion, fo much fo that the defendant 
was not permitted to fet off againft the plaintiff's demand, a 
note which he had obtained for valuable confideration between 
the fealing of the procefs and the arreft. This rule, to op- 
erate fairly, muft be mutual — if an action begins by iffuing a 
writ fo as to deprive the defendant of a fet-off in the cafe 
mentioned, neither ought the plaintifi^ to recover a demand 
not then due. My judgment therefore in favour of the de- 
fendant is not founded on Britifii authorities, but entirely o« 
a former decifion of our own. 

The court will 
not pronounce 
judgment on a 
ifmier con* 

McNeill's cafe. 

THE prifoner had, together with two other petfons, bdsctf 
viaiedatoyer^ conviAed of a confpiracy at the laft oyer and terminer for the 
l^SJTrac^ifdic ^**y ^°^ county of New-York, but had not furrendered to hk 
record ot hit bail in time to receive fentcnce : he afterwards came in, and 
n^bcforrthcm, ^^ ^^^ brought up, on his own i>etition, to have judgment 
*^"LiJ^ ***""' pronounced} the public profccutor appeared, but the record of 


tk oonviAion not bebg made up and broaght into courts the NEW^york, 
beach £ud they had nothing before them on which to pro- ^'^ '^^^' 
end ; and therefore admitted him to bail. M*Neii*t cafe. 


THE noCke of motion in this caufe was ferved on a perfon Semcc 
in the boafe of the attorney, and where he kept his office : 
bothddaot iiifficientj as it ought to have been on a clerk in 
die office.* 

: adi. Gelfioo, Cole Ca. Prac 77. «« The fenrioe muft be on feme 
'perfoB a the office and belonging there; if nobody is there, it muft be upon fome 

* oor io tfce boaie when the attoniey refidcs or the office it kept ; and if nobody 

* iithae, it may be lc& in the office.^ 

Moyle againfl Gillingham. 

NOTTCE may be ferved, on an agent in town, on the firft Service of do- 
day of term, to fhew caufe on the next day for non-enumera- J»<="<»" *K«"** 

i . . , ' ^ ^^ non-enume- 

ted motions; bot then, it mufl: be accompanied with a fuffi- rated motions. 
dent cxcufe for not having been for the firft day. If the 
cxcaSc be rcceWed, the adverfe party will have till next term 
to fend into the country to his principal, for counter affi- 

Abraham L. Brain againil Rodelicks & Shivers. 

IN thb caufe it was neceflary to examine a witnefs in the ^IJI^^^ ^ 
Hivannah ; and, as that port was open only to certain privi- before ifluejoin- 
kgcd veflek, in April 1802 a rule for a commiffion was grant- commiffi^Vufl 
fid befi»re iflue joined, to prevent lofing an opportunity of pends the trial 
inifiDii&on which then prefented itfelf. No return having vacated :^ut if 
beminadey the caufe was noticed for trial for the laft fittings thedcfcndwit 
mlbrch 1803, when the defendant's attorney, feeing fome ^.^'^smd ex- 
lifa^flcs in the court, whofe abfence, he feared, might delay ?'"*^Jn7!"*^^^^ 
ibttadc after the return of the commiffion, app^iared and ex- ver of the rule 
I them i ftating however, the circumfiances of his cafe, '° ^^*«^« 
i he begged to be confidered as acting without preju- 
rib hit future rights. He now moved to fct afide the 


NEW-YORK, verdifty^thcofts; tbeplaistiffhaving proceeded to trial with- 
y_^l-^ out vacating the rule for the commiffion. 

firain Per curiam. When a rule for a commiffion has been ob- 

Rodelkks & tained, it fufpends the caufe till, on applicatbn to the court, 

anr. a vacatur be ordered and entered. But if the defendant ap- 

' pear and examine witncflcs, it is a waiver of his commiffion, 

and the vacatur is unneceilary. The motion muft be refiifed. 

Codwife, Ludlow & Co. againft John Hacker. 

VHien there trc 

crol»caufet.and THE plaintiffs, in the fittings of June 1802 at New-York, 

eachLu^btai^ ^ owners of a fhip of which the defendant was captain, had| 
cd a yerdia, if Jq action againft him for deviating from his orders, obtained a 

material fiids be ,.«/«?.« « .. >•, /• % 

omitted in a verdio, lubjecc to the opmion of the court on a cafe to be 

d^^nd^^LaDd* °^*^^ » ^^^ ^^* '^^ ^ ^''°^^ '"***» ^^^ recovered againft them 
the papen from a larger fum, fubjedl to deductions, in cafe the opinion of the 
may bTioliTtcd, ^^^^^ fhould be againft him as to certain items^ charged and 
be m the hands allowed by the jury. 

the c<mit"will ^ ^^^^ ^^^ made on the p?irt of the defendant to which the 
not order jud^ plaintiff propofed amendments, which were adopted; the 
teml, bccao^ caufe was then noticed for argument for the next Odtober 
"^ j^ycnyt term, and alfo for January term following, in Albany. But 
andtho'thecafe it ^^ ^hen recollected, that feme material faCts had been 
has been node- omitted, without which the cafe could not prefent the only 

cd, but wdl . ' «... /.r^. ., « 

give leayc to a- important queftion m the caufe. This was mentioned to the 
mend and per- plaintiff's attorney, who would not fay whether he would con- 
fent to the amendments or not. The j papers from whence 
they were to be drawn, and the cafe fperfedted, were in the 
hands of the plaintiff's attorney in New- York ^ fo that the 
cafe could not be completed in Albany. No application was 
made to a judge to corredt the amendments. Nor had cafes ^ 
been delivered. 

Hopkins now moved to fet afide the original order to ftaj 
proceedings that a cafe might be made, and for leave to entet 
up judgment. 

Riker refifted the application, becaufe the cafe was imper* 
fe£t, and th« papers from whence only it could be completed, 
^ were in the hands of the plaintiff. 

Per curiam. We muft deny the motion ; becauie, in the 
firft place, there were crofs verdifts to nearly the fame 


mooBttM. Seeoodly, the cafes were nctcr perfcAedy and it new-york. 
did DOC appear to be czdufively the fault of either. Thirdly, ^^ ^^3- ' 
tbe piadntiff's attorney not having denied the omiffion of cer- codwifc* on. 
tain material £i£b, the court would prefume they had appear- ▼• 

ed on the trials and ought to be a part of the caie. lit the ^ 
ctfe be fcrCeOed within 30 days. 

HofpUns prayed coftsi iniifting he had been regular. 

Per coram. We conlSder that the plaintiff was irregular, 
in not aniwermg when applied to, whether he would receive 
amendments or not« 

N. B. It was faid by the court, that where a defendant, Pnaice m to 
after verdi^l, makes a cafe and notices for argument, if he "*^'*^*^ *^^ 
does 00c appear at the time when called, judgment {hall go : 
but when the plaintiff notices a cafe made on the part of the 
defendanty and the plaintiff is not ready, it ihall go down. 

P. Kemble, furvivor of Govemeur and Kemble, 
againfl Walter Bowne. 

Tried before Judge Livingfton, 9th of April 1802. 

ASSUMPSIT on a policy of infurance, not valued, dated ^^J^?*'}'^ ®" • 
the 3d Scptenbcr 1800, on the (hip Helen, *' At and from tant port from 
Point-Fetre, Gnadaloupc, to St. Thomas's, beginning the ad- J^^^^jj^ 
▼entore at and from Guadaloupe and to continue till her ar- to be there on a 
riralat St. Thomas's, and there fafcly moored.'' At a pre- J^JJ^l^^;!^" 
minm 17^ per cent. The declaration contained an averment thedayonwhich 
that the mfurancc was made for Charles Gobert. to*u Th^l^and 

The defendant received no information from the broker, the policy takei 
accpt that the ihip was at Guadaloupe the 28th of July. ^^IncJ^Th 

The Helen was a prize Ihip, and purchafed for Charles npt ncccffary to 
Gobert, 20th November 1 799, at Point-Petre, for 6450 dol- longVvdTd ha* 
fan and 48 cents, including commiffions on the purchafe. ^^Za^ ^^ T' 

A prior infiirance had been made on the fame veflel and policy. The 
voyage at St. Thomas's, for 6409 dollars, at a premium of 30 J^^PJ^^^^'J^ 
percent. (Gobert being there) which after paying commif- loft is, io cafe of 
fioos and premium, left 4349 dollars and 35 cents received by ^^^r^^ni*** 
Goberty which it was agreed was to be confidered as a prior 

The amount infured on the policy was 7500 dollars, and 
; fbm the prefent aflion was inilituted. 


NEW-YORK, It appeared from the teftimony of the captain who took 
^A^i8o3^ charge of the Helen on the 20th Nov. 1799, and continued to 
command her till the 6th February 1800, that in that time 
he expended in repairing and other neceflaries, 1335 dollars 
and 86 cents, including an item for wages in taking care of 
the (hip, to a period after he reiigned the command ; his 
knowkxige of the payment he faid was derived from the in- 
formaticm of the porfons employed in that duty : that the 
Helen was American built, copper bottomed, and would have 
been worth in New-Tork, with an American regifter, 25,000 
dollars ; during the time he remained on board there were 
occafionally fugars and cotton put on board her, and taken 
out again to load other vefiels at that place, belonging to Mr. 
Gobert. From the evidence of the fucceflbr of the firft cap- 
tain it appeared, that, being at Guadaloupe in July 1800, he 
received orders from Gobert's agent at St. Thomas's, to take 
pofleflion of the Helen, man, vi6hial her, and fend her to him 
there. That according to an account of one Brocha, Gobert's 
agent, *^ the purchafe money, unrigging and tarring, fafe 
** mooring and guarding the fhip, while at Guadaloupe, 
•* amounted to 7000 dollars. The witncfs paid Brocha 3000 
*' dollars, part of the purchaie money, and Brocha told him 
*' Gobert paid him 4000 dollars." Some expenditures were 
made upon the fhip before the witnefs took poiTeffion of her 
as before dated, to the amount of which he could not fay. 
But the bill of difburfements for the fhip, paid by him for 
repairs and neceilaries to get her difpatched on the voyage 
from Foint-Petre to St. Thomas's, came to 4461 dollars and 
87 cents, amounting in the whole to 7461 dollars and 87 
cents. The fhip failed from St. Thomas's fome time in 
September : the witnefs was a pailenger ; on the voyage fhe 
was captured, carried into Antigua and condemned as prize ; 
a claim had been interpofed, in the profecutlon of which, 
3£*.3i7:ii:8^ was expended, of which the proportion to 
be paid by the fhip was admitted to be about 500 dol- 
lars. The witnefs received pofTeflion in July. That the 
repairs and outfits and the expcnces thereof done to her 
afterwards were particularly enumerated in the accounts 

Mr. Ferrers, an eflablifhed Infurance Broker, faid it was 
ufual in eftimating the value of the ihip to allow wages ad- 


noDei to the captain and crew : commonly a month's pay NEW-tork, 
H put of the outfit of a Tcfiel, alfo provifions for the voyage, .^ ^'^ 3' 
lod aD other charges for things requifite and proper to pre- p. Kembk 
pre her lor the voyage infured. That no expenditures ^^L.,. 

vhatever previous to the commencement of the voyage are ' 
charges agunft the infurers on freight. That fome dF the 
items in the accounts, in hb opinion and according to his 
praffice, legoffed vouchers, or it could not be known whether 
they were pfoper or not. That in fettling lofles in fuch 
ca(b, vouchers were required by him. It was admitted that 
nine livres make one dollar. 

The Judge expreilM to the^iry, as the inclination of his 
opinion, that the policy could not be confidered as attaching 
{rom the firft purchafe of the Ihip by Gobert at Guadaloupe, 
but from the time tome aA was done towards equipping for 
the voyagie. Whether however this was the cafe or not, and 
even to iuj^ie it to have attached at the time of fuch firft 
purchafe, that it was not necefiary to difclofe to the under- 
writers the length of time the vefiel had remained at Guada- 
loupe, nor that fhe had.been ufed as a ftore-fhip at that place. 
He was of opinion that the account of the firft witnefs ought 
to be bid ont of the queftion ; yet however, independently 
of that^ there appeared to be intereft to the amount infured 
in thb policy, beyond the prior infurance. 

The jury fbund for the plaintifi^, a total lofs, without going 
from the bar or examining the accounts. 

The application was to fet afide the verdiA as being con» 
trary to law and evidence. 

Pendleton for the defendant, made two points : Firft, that 
the policy iras void for concealment ; f<5condly, that, allowing 
it to be otherwife, the verdiA could not ftand, being againft 
cridence in finding a total lofs when only a partial injury had 
been fiiftaioed. On the firft point he obferved, that a con- 
tnft mnft be taken as it is worded, where there is no ambi- 
gaiiy, or it is no contraA at all. In policies of afiurance ** at 

a place, means firft arrival at that place. Park 38,* [^^^f^ ^- ^^ 
mi the cafe cited by Lord Hardwicke in Motteux v. London 
AC Com. X Atk. 48. It is true that the conftruAion is not 
UKverfally the fame. In France it is interpreted to be from 
thetime of failing. aEmer. 14. But in England it is regu« 
fatei by fpecial contract, i Marfh 173. Bird v. Appleton, x 


MEW-YORK, Marfh (So. That ^' at and from* mean from the firft arrival 

May 1803. IS obvious from the words themfeWes. and the two firft dtcc 

P. Kemble authorities. If not fo, when did the riik commence ? Tb 

^^ Judge's opinion would make a new contraft. It would bi 

_ fit)m beginning to equip for this voyage. But how is this tc 

be afcertained. The accounts of expenditure are without 
dates : they can (hew nothing, and this very circumftance is 
enough to throw afide any other interpretation than the one 
contended for ; becaufe if the commencement of the riik b( 
not mentioned, the policy is void, i Mar(h 182. If this Ix 
foj then there was a material concealment in not difdofing thi 
veflel's having lain nine iiiil|ni 1 at Guadaloupe, and nfed 
during that time as a ftore-fliillp), or the ftay was a deviation. 
On the point of concealment, it is fettled that every faft nol 
difclofed, which would increafe the riik, is material and v» 
cates the policy, i Marih 354. The difference of premium 
is decifive on the importance of communicating her ftay. At 
St. Thomas's it was 30 per cent ; here 17^. To prove thai 
concealing the length of ihy would vacate the policy, he re- 
lied on Hodgfon v. Richardfon, i Black .463, the iby wouU 
deteriorate the veflel and increafe the hazard. It was there* 
fore a material faft to be difclofed, and if fo, whether the loii 
was occafioned by the faA concealed or not, was perfefflj 
immaterial. Fillis v. Bruton, Park. 183. Seaman v. Fonne- 
reau, 2 Str. 1183. But allowing the verdiftnot to be void 
the plaintiffs are not entitled to a total lofs, the amount in- 
fured was ----- dollars 750c 
the firft coft of the veflel was, including the 
commiffions and neceflary diiburfements, but 
throwing out the month's wages and charges 
previous to the policy - - - dollars 5683 

(b that the whole cannot be due. 

Hamilton contra. In this cafe the fituation and circum« 
ihinces of the veflel antecedent to the orders for infurance 
were perfe£Uy immaterial, and therefore needed not to have 
been difclofed. The only effeft which the Helen's ftay at Gua- 
daloupe could have had, would have been to render her leis fit 
for the voyage infured. That ihe was completely adequate to its 
performance, was a warranty implied in this as in every other 
policy. It is a fettled principle, that whatever is warranted 
againft, whether it be in exprefs terms or by implication, 
need not be difclofed, and the reafon is obvious, becaufe it is 


ft rift the aflared takes on himfelf. Though the conftraftion new.york^ 
ptm to the words " at and from" could not be totally de- May X803. 
aiedf it could not be univerfally acceded to. The intcrpre- p. KemUe 
titian relied on was applicable to only thofe cafes of infurance ^ nLme. 
ffkre a vefiel was infured at and from a port to which Jbi ' 
WMS pMf : but when the terms in queftion were ufed in refer- 
ence to a ¥cflcl M a diftant por^, Jhm nvhence the voyage in- 
fared was to hvic its inception, the expreifion could mean 
only from the time fome a£l was done towards equipping for 
the voya^ intended ; at the utmoft it could not relate back 
Etftbor than to the orders for infurance. But as the voyage 
might, even after the orders given, be in (^St deferted, it 
vould perhaps be the fafoft interpretation to fay the policy 
flioiild never attach but on fome overt aft indicatory of car- 
rying it into execution. On the other point, the accounts 
and the te&unooy on which they were founded were before 
the court, and carried their propriety or impropriety on their 

Per curiam. Two qucftions are made in this caufe. 

L WsA every proper information given to the underwriter ? 

IL Were the charges proper and fufficiently proved ? 

On the firft no doubt was entertained at the trial nor is 
any now. It was not neceflary to difdofe how long the Helen 
had been at Guadaloupe, nor that fhe was a prize ihip. The 
firft could be material only in cafe her being there antece- 
dent to the infurance had enhanced the riik, and the latter in 
cafe of a warranty or reprefentation which negatived her be- 
ing a fliip of that defcription. It is of no importance how 
long ihe had been at Guadaloupe unlefs the policy attached 
from the moment of her arrival there, although it might have 
been levcral years before it was effeAed. The conftrufbion con- 
tended for would be unnatural. In a cafe like this, when a veflel 
has been long in port previous to an infurance, the riik does 
not commence till fome aA be done towards equipping her 
for the voyage, or on the day on which ihe is ftated, as 
hfOtf to have been in fafety in the port from which (he 
was to fail — this was the 28th of July 1800. If fhe had 
been loft or injured before that day, the underwriters would 
net have been liable. When (he is ftated to have been at 
* Guadaloupe on a certain day, it muft mean that fhe was •The rale ia 
Acre m fafety, and that no preceding accident was to be ^?"^^"u **• '**2^ 
Blade gpod by the aflurers'^xt cannot therefore be material •« at and from*' 


NEW-TORK, where fhe was prior to that dzf, for the parties b7 agreeme 
May 1803. imyc afccrtaincd that the ri£t fhall commence on the 28 

July i8oo. 

The other queftion relates to the value of the vellel. 

forming this valuation, there were added to the firft co 
are in a policy fundry charges, on the propriety of which we are now to c 
^SyOion Mid *^°^*°^- ^^ ^^^ ^^^^ ^^^ account was rejeftcd, and we 6 
before in pert, think thofe charges improper, becaufe they accrued prior 
widbc*^ the 6th of February 1800, five months before the policy ; 
icrilMng : when tached ; but principally becaufe they are, with hardly a 
^^^^arriine ^^Lccption, of fuch natures as to have been occafioned foL 
mt aceitain^ace by her ftay at Guadaloupe, and fuch as gave no permanc 
lias m>c arrive(^ value to the veflel. They confift (except one anchor) of pi 
^^ "^ *^*^ vifions, which muft have been confumed while the veffcl v 
iirft arriTal ufed as ft ftore-ihip, and of wages and other difburfemen 
Neither of thefe ^Jiich became neceflarv by fuch llay, and ousht not to fw 

prinaples It It , , ' ' /• . . , 

evident would the computation when we are afcertainmg her worth. 

govern here. ^o the Other account it is objefled that the items are neitl 

proper nor well proved. As to the proof, Davis, the 6 
witnefs fays, '' The bill of difburfements for the ihip paid 
^' him for repairs and neceflaries to get the (hip difpatched 
** the vopge from Point-Petre to St. Thomas's, amount 
'* to 4461 dollars, as per account (A) annexed.** There 
nothing of hearfay in this — he paid the money himfelf, a 
ftates on what account. What he heard, related only to t 
purchafe money, not to what was paid for repairs — it is ti 
there is no date to this account, but it is a fair deduAi< 
from the depofition of Davis, that all thefe expences were 
curred after he took pofieffion of her, which was in Ji 
1800 : for he exprefsly ftates, that he cannot fay what 1 
penditures took place before the vejfel came to his ion 
The propriety of many of thefe charges againft an und 
writer on the veflel is alfo denied. If thefe be deduAi 
there will ftill remain a fum large enough to entitle the pla 
tiff to retain his verdiA. It is admitted that in eftimati 
the value of a vefTel, it is ufual to allow a month's pay ; 
vanced to the captain and crew, provifions for the voya, 
and all other charges for articles necefiary to prepare her : 
it. The counfci will be ftimiihed with an eftimate of 1 
court according to this opinion, in which the deduAton m 
be regarded as liberal as they rcfpeft the underwriters. 


tJpoa the whoky we are fatisfied that the firft coft of the NEW-york, 
veflel, and the expences of fuch repairs and outfits as arc ^*y '^-J* 
properly chargeable againft the underwriters on her, are fully 
cqmd to the fums covered by the two policies, and that there- 
fare a new trial ought not to be granted. 

N. B. By a ftatement which was read as forming a part 
of the opinion of the court, the value of the Helen was thus 

Livres. Dollars. 

The Helen coft .... 6450-48 

Ihere was received on a prior policy 4349:35 

His leaves of her firft coft for this policy 


To this muft be added the following items 

of die account A : 

The hire of fundry hands for rigging 

and ballafting, &c. 


Old cordage .... 


Do. 6jo. an anchor 540. 


* Plank 81. carpenters 540. 


BeeE and pork 864. cable 2070 


Cordage bought at vendue 


Caalking the long-boat 


Bin for plank - - - - 


BlackTmith's bfll 474. Caulker's 756. 


Two biUs for crockery for cabin 540 

and 198. - . - - 


Paid for a boat .... 


t A top-gallant-fail and fome others 


Two ipars 387. cooper 270. 


Ship chandler .... 


Ctfpenter's bill, water, &c. 


Wages to captain, &c. advanced - - 


Gommiflions at 5 per cent. 
9 livres == to one dollar 






NEW.TORK, Add alfo premium of infitranceon fecond Dollars. 

^^!^^ policy for dollars 7500. - • - 1312:50 

p. Kembk Commiffions on do. at 5 per cent. - - 6yJSz 

Expenccs of reclaiming her after capture - - 200:00 


W. Bawne. 

A miftake in adding the items maxiced f 44^0^ 

Intereft as ufual on this fum after de- 
ducing 2 per cent. ... 13793 

The two per cent, which by contraA of the parties are to 
be deducted in cafe of lofs, we regard as part of the confider** 
ation for the infurance, or as fo much additional premium in 
the event of a difafter. To add it therefore to the valuation 
would be a violation of this agreement. The paiTages rtferred 
to in Wefket only fhew how an infurance ought to be made 
to be completely covered, not that two per cent, of the value 
ihall not be retained where it is fo ftipulated. He admits this 
was formerly the practice in England, but policies there do 
not now contain this claufe : on the whole, we think two per 
cent, muft be deducted from the preceding valuation, and in* 
tereft calculated on the balance, to wit, on the fum of dollars 

Miftake of dollars 88:88 in the item marked * makes the 
true fum dollars 6669:44. 

James Jackfon ex dem. Nathaniel Potter and 
others againft Solomon Hubbard. 

Under the a<a EJECTMENT to recover Lot No. 40, Tnlly, in the county 

of the 8th J^' c r\ ji rjy, r d^ c 11 

1794 for rcgif- of Onondago. The faos were as follow : 

^|»8 "^^^j*"^ Ifaac Hubble the patentee, on 30th of September 1783, 

&c. a prior deed duly convcyed the premifes to Jofepb Brown and John M^Au- 

3^e t^k^r^f^° ly, who, on the 22d February 1786, duly convcyed the fame 

fice is Toid a- to Hugh Walfb. The firft deed was never depofited in the 

Simpur^^c Clerk's office, but was on the 8th of June 1791, recorded in 

for a bona fide the Secretary's office, and on the 29th of April 1 797, in the 

whofe*^cd it Clerk's office at Onondago. The laft deed was alfo recorded 

ieponccd. in theSecretary's office on the 8th of June 17919 and on the 


}A8qMember 1794, dq>ofited in the clerk's office according nkw.yor 
10 bv. HHgh WaUh, in due form conveyed the premiies to ^^^ '^^ 
Cbries P. Rogers, and Charles P. Rogers to Nathaniel Potter, j^id!ftl 
which bfi mentioned two deeds were recorded in the clerk's ▼• 

office of Onondago. Ifaac Hubble, on the firft of Oftober ^ ""''^ 
17&B, duly executed a power of attorney to Jonathan Dan- 
ibrth. and Ezekiel Tiffiiny, empowering them, jointly and 
feveraUy, to convey the iaid premifes to Elifha Crane and 
llofts fiodeno. Tifiany, on the 14th of Auguft 1795 con- 
veyed the iaid premifes to Crane and Budeno, and the deed 
IS recorded in the clerk's office of Onondago. Budeno, on 
tbe £une day laft mentioned, conveyed one undivided moiety 
of the premifes to Sebaftian Vifcher, which conveyance was 
recorded in like manner. Crane, on the firft of Odober in 
the year laft mentioned, conveyed his moiety of the premifes ^ 
toGcorgie AUen. Vifcher, on the 4th of June 1796, alfo 
conveyed his moiety to the faid George Allen, who, on the 
25th of June in the fame year laft mentioned, conveyed the 
whole premiies in queftion to the defendant and one David 
RufleD^ which four laft mentioned conveyances were recorded 
in the clerk's office aforefaid. The defendant has been in 
foScffion of the premifes ever fince his purchafe and ftill 
contmues in the pofleffion thereof. Upon the preceding 
cafe the following queftion is fubmitted for the opinion of the 
Supreme Court— to wit, whether the plaintiff is entitled to 
recover, feeing that the deed from the patentee to Brown and 
M'Auly^ under which he claims, has not been depoiited in 
the clerk's office according to law ? 

Per curiam. Both parties are fair purchafers of a military 
lot of fcmd. The deed under which the lefTor of the plaintiff 
daims is prior in date, and was on record in the fecretary's 
office previous to the paffing of the aft requiring all fuch 

I by a certain day to be depofitcd with the clerk of the 
of Albany, and declaring fuch as (hould not be de- 
pofilied void as to fubfequent purchafers, for valuable confid- 
fMkm, who fhould fo depoiit their deeds. The defendant's 
iuA was fo depofited. The deed from the firft purchafcr 
HI die lefibr of the plaintiff, together with the power of attor- 
MT mider which it was executed, was alfo duly depofited 
ijyfertylf to the aft ; and the queftion which the parties have 

\ i|^ whether fuch recording in the fecretary's office is to 



NEW-YORK, be confidered as noticej and thus fatisfying the principal ob- 
May 1803. jefl: of the aft. We think it docs not. It was not the dc- 
iign of the legiflature to direft a mere regiftry of fuch deeds 
for the purpofe of enabling the purchafers to examine a fsur 
deduftion of title. But the objeft of the aft declared to be» 
is, the prevention of frauds by facilitating the means of dis- 
covering forgeries. Now the examination of a mere record 
could not conduce to this end. Nothing (hort of an infpec- 
tion of the original would in many cafes anfwer the purpofe; 
particularly where the forgery confifted in antedating the 
deed, and this fpecics of forgery, we may infer from the aft, 
which particularly alludes to it, was probably the moft fre- 

We are of opinion that judgment be for the defendants. 

Where a con- 
veyance might 
have been 
claimed, and 
pofTeifion has 
gone with the 
right to claim, a 
deed will, after 
fifty years, be 
prefumed. A 
lole pofTeilion 
under claim of 
right for forty 
yean hj one 
tfoant m com- 
mon amounts 
to an oufter. 
The word « dc- 
iire** in a will 
raifes a troft, 
where the oh- 
jeds of that de- 
lirc arc fpccifi- 

L. and H. Vandyck againfl Van Beuren & 

THIS was an action of trefpafs quarf claufum fregit^ for 
entering and cutting wood in five feveral lots in De Bruyn's 
patent in the county of Columbia. The plea was, not guilty, 
with notice that the defendants were tenants in common of 
the loci in quibus, and were feized in fee of a ninth part thereof. 
The caufe had been firft tried before his honour the Chief 
JuAice, at a Circuit Court in Columbia County, on the 25th 
June 1800. The fafts were briefly thefe : 

Stephanus Van Alen, by his will of the 17th May 1740, 
devifcd inter alia as follows : *^ Item. I give and bequeath 
*' unto my fons Cornelius, Jacobus, and Ephraim, all my land 
^' or fliare that I have in the patent called the Bruyn's patent^ 
^^ lying within the bounds of Kinderhook patent, with all the 
^' privileges, hereditaments, and appurtenances thereunto 
*' belonging, or in any wife appertaining, unto them my faid 
** fons Cornelius, &c. and to their heirs and afBgns forever, 
'^ each one equal third part thereof, the whole into three 
" equal parts to be divided, with a provifo and redriAion 
*^ that they my faid fons Cornelius, &c. do pay, or caufe to 
" be paid therefor unto my daughters Hylctje, Elbertje, Jan- 
** ncttje, Chriftinaj; my grand daughter Maria,* and theig. 

* She was the daughter of the teftator*8 eldelSl fon Lawrence. 


NEW-YORK, States, and after the death of her hufband made the convcf^ ^ 
May 1 803. j^n^g relied on. The admiifion of this conveyance was refified .: 

JL. & H. Van- ^7 ^^^ plaintiffs' counfei on three grounds : -v 

^yck 1(1, That the plaintiffs had given fufficient evidence o£^ 

Van Brareo & abfolutei exclufive poffei&on of the premifes pretended to be !^ 
Vofcttig. conveyed to the defendants. adly. That this pofiei&aa ^ 
' amounted to an aAual oufter, even upon the fuppofition that , 
a tenancy in common was created by the faid WilL 3d^« 
That fuppofing Maria Herkemer could be confidered as a teft» 
ant in common, yet fhe had only a right of entry which is not . 
affignable, and this being the cafe it contravened the fiatolBv i 
made to prevent ihaintenance. ■}[ 

The objeAions were overruled. No evidence was given c||j 
the payment of the fum of j^.ia : 10:0 to any of the daugbi.> < 
ters or to Maria. The Judge charged the law to be in favonr j 
of the defendants, in confequence of which a verdiA wai : 
given for them. 

On a motion for a new trial in April term 1801, it was b 
ordered ; and the caufe being heard before his honour Mi;« 
Juftice Radcliff, on the 6th of OAober 1801, a verdiA wa% 
on his honour's charge, rendered for the plaintiffs. 

A motion was made to fet afide this alfo ; the faAs were 
fubftantially the fame as in the former caufe, and the addi- 
tional circumftances are noticed in the decifion of the court* 
but the reporter has to regret his inability to give the argu* 
ments at the hearing, as it took place before the commence- 
ment of the prefent feries. 

Per curiam. On the trial it was proved by the plaintifi 
that they did then, and for about twenty years preceding had 
lived on De Bru3rn's patent ; that they had a houfe and 01^ 
chard and 28 acres adjoining the fame, as early as 20 years 
preceding, and that they held other parcels of land ; that 
the patent was divided in 1793, and the plaintifis then took 
a£h]al poileffion of the loci in quibus^ which were uncleared 
wood lots, and that the defendants had cut wood in (bme of 
them ; that in 1 796, the plaintiffs had leafed parts of the h>ts 
contained in the declaration ; that the plaintiffs claimed the 
whole of their lands in De Bruyn's patent, under the will of 
Stephanus Van Alen ; that their mother was Hyletje, a daugh- 
ter of Stephanus Van Alen ; that in 1 75 1 or in 1 75 2, flic 
lived where the plainti& now do on the patent, and ibe 


pbintifithcxi lived with hcr\ tkat the land near the houfe NEW-york 
«B tlkcn cleared ; that Hyletje died in 1767, and other par-^ ^'^ '^3- ' 
cdswcre cleared by that time, or at leaft by 1772 ; that one i^^^Th^!^ 
pine was cleared in 1 761, and then in poffeiBon of the plain- ^7^^ 
iSk\ that Stephen Van Alen, the teftator, had a fon Corne* Tan ^m & 
liiu,wboYiaLda £» Stephen, who had a fon Cornelius, each Voflwrg. 
of whom was the ddeft fon in fucceiOon. " 

On the jNDt of the defendants, the will of Stephanos Van 
Alen was produced, bearing date 17th of May 1740. It was 
psofcd that the tefhitor left three fons, and that two of them 
died above fifty years ago without iflue ; that Maria was the 
dughter of Lawrence, the eldeft fon of Stephanus, and who 
died in the life time of his father ; that Maria married, at the 
9 of 20, one Herkemer, and in 1776 or 1777 went to Can- 
ada to her haflband ; that her huiband died in 1795, and that 
ever fince flbe rcfidcd in Canada. The defendants then ofiered 
a deed to them ft-om Maria Herkemer, dated January 8, 1800, 
but this was overruled : that the defendants further proved, 
that in ijgpf the fon of Maria Herkemer offered the pre- 
mifcs for iale to the plaintifis for j^.ioo ; that the plaintifis 
aflhed a price bat no bargain was concluded ; thaf^ a few 
&m after, one of the plaintiffs admitted that Maria Herkemer 
was hdr to one mnth of his land — the deed was then offered 
again and rejeAed— the defendants further proved, that in 
1751 or I752f on a divifion of part of De Bruyn's patent, and 
which was after the death of Stephanus, his eldeft fon Cornc- 
fios a£led as agent for the fhare of Stephanus, and claimed, 
befidcs his own fhare under his father's will, one third of the 
two (haxes of lus two brothers who were dead ; that Henry 
Van Dyck claimed a ninth part of the patent, and that Hy- 
letje and the plaintiffs after her claimed the whole fhare of 
Slqplianns ; that about that time Cornelius took poffcfiion of 
part, and paid four-ninths of the cofts of an ejeflmcnt fuit in 
defendiDg the land, and that the plaintiffs paid five-ninths of 
the cofts ; that on the divifion of the patent in 17939 the 
ftwe of Stephanus was defignated as laid out for his repre- 
It was further proved that the plaintiffs had 
r iC'ic^ ^^^ Maria Herkemer's fliare, and one of the 
faid Maria had a right to money and not land by the 
«^: that at another time (about 4 years ago) one of the 
> confcffed he meant to buy a part of the premifes of 


NEW-TORK, Mrs. Herkemer : that Cornelius Van Aleii, the fon of Sto* 
May 1803. pj^jj ^Ijq ^5^5 jj^^ fQu q{ Comelius, had for many years un- 

L. & H. Van- interruptedly cut wood in feveral of the lots mentioned in the 
^V!^ narration, and that, as well before as fince the divifion in 

Van Beoren & I793> ^^d that he, for feveral years paft, had in pofleffion,* 
Voflnug. ju^^i ftui has two pieces of land in the land allotted to thd 

"" {hare of Stephanus Van Alen : the deed of Mrs. Herkemer 

was again oflfered and refufed, and a verdiA taken for the 

It appears, by the will of Stephanus Van Alen* referred to 
in the cafe, that he gave to his " three fons, to wit, Comeliii% 
Jacobus, and Ephraim, and their heirs, ali his lands or Jbare in 
the De Bruyn^s patent^ each an equal third part, with a provifo 
or reftridtion that they (hould pay to his daughters Hyletjey 
Elbertje, Jannetje and Chriftina and to his grand-daughter 
Jlfarftf (daughter of his deceafed fon Lawrence) each;^.i2:ioK> 
in fix equal payments : and that if any of the faid children, 
or the grandchild (hould die under age or without ifliie, the 
portion of fuch child or grandchild to be divided equally 
among the furvivors x the teftator further defired his faid three 
fons, tUlit in cafe any of his faid daughters fliould be inclined 
to purchafe of them the land in De Bruyn's patent for a living 
for herfelf and family, that then they let fuch of his daugh- 
ters have it at the fame price they had it for." 

This controverfy, upon a ftatement of faAs fubftantially the 
fame with that in the prefent cafe, was formerly brought into 
view before thb court and received a decifion in April term 
2801. It came before the court upon a motion for anew 
trial for mifdiredtion of the Judge who had charged the jury 
that the law was with the defendants, and who had admitted 
the deed of Maria Herkemer. A new trial was awarded by 
the court, and it is in confequence of fuch. new trial that the 
prefent application is made. 

In the former cafe it appeared that the plaintifiFs claimed 
the loci in quibus as fons of Hyletje, the eldeft daughter of 
Stephanus Van Alen : that the defendants claimed under the 
recent deed of the widow Herkemer, and that her right arofe 
under the will, (he having furvived the two fons of the tefta- 

* He clauncd one ninth of the patent, amouotln; to 900 acreS| chiefly ptM 


tor, both of whom had died without iilbc 55 years before the NKW-york 
craly when her right accrued, and that (he claimed an undi- ^^^ '^^3* 
Tided fixth part of two third parts of the tcftator's intereft in l. & h. Vaa 
die patent. dyck 

The court then decided, Vu Beuien a 

I. That a deed from 0)rnelius to his fifter Hyletje might VoOwrir. 
be frefunud from her entry fifty years before and uninter- ^ 
rupted poflcffion in her children fince, according to the nature 159. 
and fiuaiian af the land $ and that this prefumption was the 
more readfly to be made fince fhe had a right by the will f 
clmma deed and had intimated her wiih accordingly. 

2« That if thb was not fo, yet that the deed of the widow 
HaJbemer was void^ for fhe being out of poiTeffion and no 
demand or claim by her hufband or her for forty-two years 
afia fhe came of age, the jury ought to have been direAed 
to frtfume an wfier^ and that if oufted, fhe could not convey. Cowi>. 217. 
The cafe in i Leon. id6,* was referred to as proving that a i^^\^ * 
feme coverty whiUl feme covert might be difTeized, fo as to 
render ber deed before re-entry, maintenance. The firft en- 
quiry that naturally arifes in this cafe, is, whether there be 
any changie in the fa£b fufficient to change the conclufionS of 
law that were drawn in the former cafe ? 

1. "With refpefi to the prefumption that Hyletje received a 
deed from her brother Cornelius, the fame fa^ls are here to 
warrant itm 

It appears that by the will of her father, an ele^on was 
given to any of the daughters to purchafe the premifes and 
a truffc was raifed in the will for that purpofe ; that Hyletje 
entered upon the premifes with her children as early as 1751 
or 17529 and after her father's death, and claimed the whole 
fhare of Stcphanus ; that (he continued in pofTefTion till her 
death in 1767, and that her fens have remained in pofTcflion 
o(the Uci in quibus down to the prefent day, and have alfo 
the whole fhare of the teflator \ that this entry and 
of Hyletje muft have b«en with the knowledge and 
: of the other children, and have pafled under their eye, 
fat It qipears that on the diviiion of the patent in 1751 or 
*7S^ Cornelius, the fon of the teilator, was prefent and 
driiDCll the whole of his father's fhare, and took pofTeffion 
If port I that this pofTeffion muft foon thereafter have been 
dj fince we find within the fame year Hyletje in pof- 



MEW- YORK) feflion, and this claim muft foon thereafter have ceafed, finc6 
^^y ^^^ we hear no more of it, and the claim of Hyletje remained fane-* 

U & H. Van- tioned by poflfefEon ; that the pofleffion was fuch as the fub- 
^y^ je6t was fufceptible of, it being underftood that a large part of 

Van Bemn & the premifes was uncleared pine land, and from all thefe cu> 
Vofturg. cumftances there arifes a ftrong and unihaken prefumption of 

"""""""'"'^ right. A deed is juftly, if not necejfar'dy to be prefumed^ and 
confiderations of public convenience and found policy wiU^ 
under fuch circumftances of ancient and continued pofleffion 
by colour and claim of right, require the prefumption. We 
are therefore clearly of opinion that the decifion in the for- 
mer cafe applies and governs the prefent one on the firft pointy 
and that the verdiQ is right and ought to ftand, whatever 
may be our opinion as to the legal operation of the deed of 
Mrs. Herkemer. But, 

2. We think that we are alfo bound by the former de» 
cifion to cdniider the deed x)f Mrs. Herkemer as void, and that 
the fame faAs are ftated in this cafe to lead to the fame re- 
fiilt. Her right, under the will, and upon the death of her 
two brothers, had accrued upwards of fifty years before the 
trial. Concurrently with the commencement of her rights 
Hyletje had entered under a claim to the whole ihare of her. 
fiither, and under a right to eleft and demand a deed for the 
lame. This entry and enjoyment of the premifes muft have 
been adverfe to the claim of her niece, and her poileffion con- 
tinued down in her and her fons, had every appearance of an 
exclufive and independent pofleflion. One ftrong mark of 
exclufive owner (hip was the extendon of the clearings from 
time to time, and this in purfuance of a claim to the wh<de 
Ihare of the teftator made by Hyletje and her fonsk It does 
not appear that from the time of the commencement of the 
right of Mrs. Herkemer down to the date of her deed in iSoo^ 
a period of about fifty years, that {he ever afierted her rights 
or received or claimed any (hare in the profits of the premifeff 
and that an adverfe claim of poflefiion was conftantly before 
her. Thefe fa^s undoubtedly amount to an oufter, and when 
the court in the former decifion faid that the jury ought to 
have been direHed to prefume an otifter^ the decifion undoubt* 
edly was, that the law raifed this prefumption, and that the 
jury were not at liberty to refift it ; that it was a prefumption 
of law arifing from faAsj and if fo> it would not be the escer- 


A of Iband difcretion— it would be an idle and ufclcfs aft, new-yor 
to remand thb caufe back to another jury, in order that the ^^^ '^3 
ieed m^ht be admitted, and then that the jury might under l. & h. v 
die direftion of the court, prcfume an ouftcr, fincc we per- "^7^^ 
cdic that the fafts require that prcfumption — fincc the law Van fieuren 
raifes and draws that prefumption from fafts of which there Vofturg. 
is no controreriy and no other prefumption can be warranted. •~"*-"~"" 
The deed was illegal evidence when it appeared that the grant- 
oi^s r^ht at the time of the execution of the deed, confifted 
in a r^ght of aAion merely. The confefiions of the plaintiffik 
made within a few years paft, acknowledging the right of 
Maria by oSers to purchafe, whether made for the fake of 
peace or from a conviftion of her right, are not inconfiftent 
irilh the faft of the oufter ; for, admitting her claim to have 
been turned into a naked right, thefe confeffions might 
equally have been made. They do not therefore weaken the 
condnfion drawn, or refulting from the antecedent fafts. 

Our opinion accordingly is, that the defendants take ng^ 
thing by their motioiu 

The cepor ter liaslwen txvoured with a minnte of the reafons on which hi&hononr 
Mr. ].Radcfifffiaimdcd hit concurrence with the opinion of the court, and though 
the icink k the bme, it is coDceivcd the profdfion will be thankfiil for its infertioiu 

" TlieiiBterU frdiand drcamftances appearing on the fecond trial of this caufe 
arc ia mj epniioo effintially the fame widi thofe on the former trial, and the refult 
th u efa r e oogkt to be the iame.^— On that occaiion we decided, 

• ift. T2nc ten the long and nninterrupted polSeifion of HyJetje, the fiiler of 
OofiKliiM Vao Alen, and her right to claim a deed under the will of Stephanus Van 
Aka» fiicb deed mighc be ^fiimed vnder the circumftances of the cafe. 3 T. Kep. x. 

** ad. That the £ed from the widow Herkemer was v«a/, ihe being adually oqt 7* 9* 

if pcUHBnn at the time it was made and for a great length of time before, and Cowp. ai 7. 
Ae pry ong^ therefore to be direded to prefmmt and oufier^ and if oufted ihe 
cnid not EUrfiiUy coovey* 

■ jd. Tliat although a feme covert (he might be djffrifed fo as to render her deed ^ Leon. 166 
MrinABMK»9 and i Leon. 166 was cited to that effed. The laving in the fiatute 
^r^ifcuTi ■■ alfo implies that fepu coverts and infants may hcdiJfeTjfid, 

*Oii thefe grounds a new trial was awarded, and I thmk nothing new has ap- 

mmnk C» change the merits on thefe points. The teftimony of Mr. Gardinier and 

KVas )lei% which has been principally relied upon by the defendants, whether 

1 ae evidence of necociations for a compromife or otherwife, does not tend 

« the&A of pofTemea in the plaintiffs, or to deftroy the prefumption of 

rof the wulow Herkemer. Thefe witneffes teftiiied to overtures between 

m otto 'verbal declarations of the plaintiiTs merely, and did not prove the 

cOkHB af any &&, relative to the pofleflion, materially different from what ap- 

MRd as the mnner trial 

■ilK deed fli Mrii Heilccmer, therefore, I continue to think, was properly ex- 



May 1:03. William Henderfon and others againft William 

Hcrulcrion & aL BfO WD. 


^' ^'"""^ TRESPASS for breaking and entering the pUintiTs clofe. 
If a houfr be li- called the New Theatre^ and taking and carrying away three 
abietobc affeff- hundred and twenty-five pieces of filver coin, of the value of 

ed, trefpals will , ,, , *>, m ., 1 

not lie agaioft one dollar each. Flea not guilty, with an agreement that 
au mfcrior offi- ^^j ^f ^^ following fafts, ftated in the cafe refcrvcd for the 

ccr for executing f. ^ .,, . . .. ^ii 

a warrant of opinion oi the court, might be given m evidence with the 

t^'^aUHi^llm f*°*^ advantage as if they had been fpecially pleaded. 

beerroocuiu. The defendant was duly appointed a coUeAor of the dire£i: 

tax for the di(lri£t in which the locus in quo is fituated, under 

M^ly MJ.X798. an aft of Congrefs, * entitled " An aft to lay and coUeft a di- 

ch.9a. f. 4- TcQ, tax within the United States." He was adfo dulyf fiirnifh- 

t £»• 5* ^ ed with a lift in which the locus in quo was defignated as the 

dwelling-houfe of John Hodgkinfon, and as fuch was taxed 

at three hundred and twenty-five dollars, for non-payment 

whereof he entered and took the filver coin in queftion. 

The theatre and appurtenances on which the tax was laid 

and levied as aforefaid, were not the dwellings of any one, but 

merely buildings for the exhibition of dramatic performances^ 

though the theatre itfelf was inferted in the lift of dwelling- 

houfes by the afiefibrs in the valuation made under the aA of 

1 9thjuly^i798, Congrefs4 entitled " An a6t for the valuation of lands and 

ch.87.f.8.9. dwelling-houfes and the enumeration of ilavcs within the 

I Sec z8 United States," and no appeal || was made from the aflefi^ 


Had the theatre and property been inferted in the land 
lift, the tax upon it would have been lefs than the one with 
which it was now charged. The defendant had not any au- 
thority to enter and make the diftrefs, except fuch as he de- 
rived under the tax laid upon it as a dwelling-houfe. 

If the court ihould, on this ftatement, be of opinion that 
fuch authority was fufRcient to juftify the entering and taking 
of the diftrefs, a verdiA was to be entered for the defendant, 
otherwife for the plaintiff, with intereft from fhc time of the 
diftrefs made : the form of a£lion or of {^leading not to 
prejudice the determination of the queftion on either fide. 

Hopkins for the plaintiff. The aft of the 9th of July, 
1798, fpecifies the kinds of property which are the fubjefts 


of filoatioDy and the manner of making the lifts. Dwelling- new-YORK, 
hoofes, with the out-houfes appurtenant, and the lots on ^^'' *^°3. 
vUch the fame are ercftcd, not exceeding two acres in any Hcudcribn &aL 
cafe, are to be inferted in one lift. All lands, &c. except ^' 
thofe on which dwelling-houfes arc ereftcd, are to be valued, ^_J 

inferted in another lift, and valued with a reference to all 
buildings thereoo. A theatre is not in its nature a dwelling- 
hoafe. The cafe negatives the faA of its being the dwelling- 
hoQ&of any perfon whomfoever. It ought therefore to have 
been iochded in the lift of lands with the buildings thereon» 
The manner in which the diredl tax is to be levied by the 
afiof the 14th of July, 1798,* makes this very material to the • scca. 
citizeo. Houfes and flaves are taxed at fpecific fums : upon 
bad b afiefied only the reiiduary fum neceiTary to complete 
the amoont dire&ed to be levied in each ftate. Had the 
theatre, which as a houfe is taxed at three hundred and 
twenty-five dollars, been placed on its proper lift it would not 
have been afiefled to one fourth of the amount. Here there- 
fore is a wrong for which the law muft afford fome remedy, f Harrlfon v. 
I H. Black. 68.t 4 D. & E. 2 & 44 8 D. & E. 468 || ^y^^^^ ^ ^ 
(hew that in iimiiar cafes the remedy, in the Engliih courts, is t William y. 
eftabliOicd to be againft the colleftor who diftrains for the tax, ^n^^ t. B^- 
and that trefpafsis the proper form of action. The mode of man- 
redreis by appeal given by the aft of the 9th of July, 1798,5 Heyw^d' 
3$ not appUcable to the prefent cafe for many reafons. ift. SScc18.19.2a 
The principal afleffbr can only corre£l inequalities in reference 
to other valuations : he cannot remove property from one 
lift to the other. 2d. The houfe or land might be very 
properly valued, though placed on the wrong lift ; in this 
cafe there would be a grievance, though nothing for the prin- 
cipal afleflbr to redrefi, becaufe there would be no error in the 
valiiation. 3d. The time of appealing to the principal aiTef- 
ibr is before the tax could by law be apportioned upon houfes 
and lands. Therefore altho' the circumftance of the theatre's 
hepqg fdaced on the wrong lift might be the ground of a feri- 
<M injury to the party, yet he could not at the time of the 
appeal, know it would fo operate : nor could the principal 
afiflor take that circumftance into confideration or be appri- 
iedof it at the period of pronouncing judgment on the ap- 


NEW-YORK, Hamilton contra.* Three queftions prcfcnt thcmfelve» 
^JJ^J^^^ for the confideration of the court, ift. Whether this court 

HeadafoD&al will enter into any examination of the a£b of the mere miniC 
w Brown. ^^'^^ officers of the general government, aAing under thcif 

_ revenue laws ? ad. Whether the judgment of the afleflbr if 

at all examinable here ? Whether a warrant upon the face 
of it regular, is not a complete juftification to the defendant ? 
On the firft point he faid he fhould not himfelf much inliftfi 
but as the idea had been eqtertained hj gentlemen of fome 
confideration, he thought it his duty not to pafs it over in 
iilence. On the other points he obferved that policy and 
juftice require that mere minifterial officers fhould not be 
either, compellable, or even permitted to queflion the legalitf 
of the proceedings of thofe under whom they a£t. With 
regard to officers of courts the rule certainly is, that the writ 
is a juftification unlefsthe want of jurifdiflion, or a manifeft 
abufe of that jurifdiAion appear upon the face of it. The 
inclination qf the courts has been to narrow the liabilities of 
all mere executive officers. In cafes like the prefent the 
bardfhip and inconvenience of making the officer liable are 
great. He muft be fuppofed innocent of any intentions^ 
wrong, and a^ng merely in obedience to fuperior orders^ 
agalnft which no one is bound to indemnify him. There wal 
nothing in the appearance of the theatre to flrike his fenfes 
that it could not be ufed as a dwelling-houfe. It was not a 
irifible impoffibility in the nature of the building : fome part 
xnight have been occupied by the manager or Mr. Hodgkin- 
fon, as who^e refidence it was particularly defcribed. The 
defendant did not therefore wilfully, with his eyes open, and 
when he was convinced he was doing wrong, commit At tre& 
pais complained of. If the plaintifis are injured they have 
their remedy by appeal to the principal afleflbr, who vrould 
certainly affi^rd redrefs. Should it not be obtained, they 
may petition Congrefs. The wrong now complained of, if 
any, is that of the aflbfTors, and if individuals are to be made 
liable, the aAion ought to be agaihft themj not againft the 

* IVIiat ishere rqxuted » from a fewlooTe notes furnifbed br a gentkmaii of 
the har, taken without any view to publication, thofe therefore wno have heard the 
dnqnence of Mr. Hamilton will be fendble how much thii attempt falls ftoft o£ 
what mufi have been laid 


Hopidns in reply. Trefpafs is the proper and only reme- NEW-york, 
tlyfor the plainti£Eiy nor could it be msuotained againft the ^^^J^ 
aflcffiirs unlcfsthe coIIeAor were liable : if fo at all, it muft Henderfon&iL 
he as a trefpaflcr, and he may therefore be fucd fcparately. ^ Brown. 
If it be meant that cafe Ihould be brought againft the affef- ' 
fan, that aOion certainly will not lie, unlefs they malicioufly 
aod corruptly made a wrongful afieflment. The rule that a 
proccGi regular upon the face of it, fhall juftify the officer, is 
confined co the officers of courts of record and extends to no 
others. Tlie plaintifis know the defendant, not as aAing un- 
der any authority, but as a mere trefpaflcr. If he avail him- 
fif of any juftification under the law of the United States, he 
maft (hew himfelf protected by it : and if the court cannot 
aamine that authority they muft rejcft the juftification,"^ and follow: SwreU 
then the party ftands without defence. Numerous cafes in aj^ffibility of 
thebooks Chew that the a£ts of all officers are examinable by fhrnfenoiimng, 
affion in a court of record. A very common one is that but bang bound 
againft meffengers of commiffioners of bankrupt. So the ^^' 
fiate warrant caufes. Trefpafs againft coUedors of rates, 
fines and taxes is every day's praAice. Of this the autho- 
tides cited are proofs, and the one from H. Black, is nearly 
ana!kogous : the appeal to the principal afleftbr cannot reach 
the g;ricvance complained of. His power is to f r&^xamine and f Sec. la 
equalize the valuations. In the preceding feAion it is ex-^ 
frefsly provided, ** That the queftion to be determined by 
^ the principal afiefibr on appeal refpeAing the valuation, 
** ifaall be whether the valuation complained of be, or be not 
** in a juft relation or proportion to the other valuations in 
** the (ame afleffinent diftriA." But the complaint here is 
of a different nature. Suppofe the valuation in point of fa£t, 
not too high in relation to other valuations, but much too 
low, fHli it may be taxed too high, becaufe taxed as a houfe. 
Bow the tax would be affected by placing the theatre on a 
vktMig lift could not be known at the determination of the 
ippeal I but even if known, the anfwer to the appeal would 
be a Gonclufive one : for if the property was valued either in 
i " jnft relation'* to other property, or lower, the equalization 
vluch the principal afTeflbr is authorized to make, would 

be vo remedy for the error here complained of. 
Thompfoo J. This was an a£lion of trefpafs for making 
as coUeAor for a tax on the theatre in New- York, 


MEW. YORK, impofed under the aA of Congrefs. It is admitted on the 
^^^^][^^^ part of the plaintiff that the theatre cannot be confidered as 

Hcndcribn&aL ^ dwelling^boufe in the contemplation of the law, and of courfe 
^ J^- not taxable as fuch. But it is contended that the colle£tor is 

W. Brown. 

._.^__^_ juftified by his warrant notwithftanding this, fo that the plaio* 
tiff has no remedy againft the officer. 

Officers, aAing under procefs from fuperior authority^ 
ought in all cafes to be juftified by their procefs, where that 
can be done, confiftent with the eftablifhed principles of hw^ 
and the rights of parties. That the rule is not univerfal as it 
refpe£b minifterial officers, I think well fettled. The did 
tin£Uon that is laid down in loth Coke's Rep. 76 is, that 
Hard. xSa where the fubjeA matter of the fuit is within the jurifdiAion 
Bolkr. 8a. of the court, but the want of jurifdi£tion is as to the perfon or 
place, unlefs the want of jurifdi£Hon appears on the procefs to 
the officer who executes it, he is not a trefpaifer \ but where 
the fubjeA matter is not within the jurifdiAion of the courts 
there every thing done is abfolutely void, and the officer a 
trefpafler. If the prefent cafe be tefted by this rule the col- 
leAor muft be confidered as a wrong doer. The theatre was 
not taxable as a dwcliing-houfe, all proceedings then to im« 
pofe the tax or coUpdl it muft have been without authority 
and wholly void, being a fubjefl not within the jurifdiAion of 
the affeffors. Unlefs the plaintiff has his remedy againft the 
colIeAor or the afieffors he is without redrefs in a court of 
juftice, and we are driven to fay here is an injury without a 
remedy. Admitting the affeffors were liable, ftill this will 
not, upon the principles decided in the above cafe, excufe the 
collector s all are trefpailers. The diftindion above taken 
with refpe£l to minifterial officers juftifying under proceft 
appears to me analogous to the prefent cafe, and has been re- 
peatedly recognized in the Englifh courts, in aftions of tret 
pafs againft their commiffioners and coliedors of taxes. In 
4 Term. Rq>. the cafe from Hen. Black. Rep. pa. 72, the aftion was brought 
.3. 4. 5 o. 4 . 3gj^j,^£^ ^1^^ colleftor and commiffioners jointly ; and in the 
two cafes cited from term reports, the a£lion was againft the 
collector only. No qucftion was here raifed with refpeft to 
the officer's being juftified by his warrant, the folc enquiry 
was whether the property for the tax of which diftrefs had 
been made, was taxable ; conceding that unlefs it was, all the 
proceedings were void and the officer a trefpafier, and not 


kmg coniidcrcd taxable in the opmion of the court, judg- new-york 
iiientwas given againft the coUcftor. So in the prefent cafe, ^*y *^^3. 
the theatre, not being taxable as a dwcUing-houfe, the fubjeft HcndertfoT&d. 
matter was not within the authority of the afleflbrs, and the ^« 

impofing the tax was illegal and void and could not afford rowiu 

ground of juftification to the collector. 

I km therefore of opinion judgment ought to be for the 

Lirmgfton J. Upon no principle ought the defendant to 
be liable. It is made his duty on receipt of the lift, to col- 
k&tbc tax, if not paid by a limited time. It was not for a 
fibordiaate officer who was concluded by the judgment of the 
aflefiors, to queftion the propriety of a theatre's being clafled as 
a dwcUing-houfe. Having adled under a competent author- 
ity and paid the money over, why fhould he refund the plain- 
6SC ki(s out of his own pocket, and be left to the liberality of 
government for his indemnity ? If a wrong has been com- 
mitted and they are difpofed to correA it and do juftice, it is 
asjircAable they will 2lA on the petition of the party aggrieved 
bf the afleflment, as on that of the coIleAor : while a col- 
kftor by being thus expofed might be ruined by a denial to 
rnmbnrfe him, no other individual can be very extenfively 
injured by alike refufal. In this cafe the afTefTors had juriC- 
diAion over the fubjeA, and their miftake in confidering a 
theatre as a dwelling-houfe, muft be regarded as an error in 
judgment, for which a colleftor ought not to be thus haraflcd. 
They might fuppofe, that as a theatre yielded a coniidcrable 
rent, it was reafonable it fhould be fubjeA to as large a tax 
a a dweliing-houfe. In the cafes cited from i H. Black. 68 
and 8 T. Rep- 468, the proceedings were coram non judice. 
The only queftions there related to the exemption of certain 
property altogether by the terms of the feveral afts of par- 
fiamoit. The officer's liability to refund was not made a 
point in the argument, but appears to have been fubmitted 
fob-filentio; at any rate thefe are recent cafes and not obli- 
tftOQKj here. It is better therefore to fanflion a rule fug- 
pfted by the common fenfe and feelings of men, and which 
afivds proteAion to every minifterial ofhcer a£ling under per- 
fim clothed with proper authority, than to adopt the fubtlety 
nd vefioement of certain modern decifions, which are calcu- 
i to deter inferior officers from a faithful and prompt dif* 


^•SW-YORIC chtrge of their functions, or to ezpofe them to much vei 
tion andexpence. 

It is alfo much in favour of the coUeAor that the plaint: 
negleQed to appeal. This being a remedy provided by 1 
■■ ti aAj they ought not lightly to be permitted to eleft another, 

Raddiff J. This is an affion of trefpafs for taking a 
carrying away the goods of the plaintiffs. The plea is t 
general ifluCj and by confent the defendant was permitted 
give any fpecial matter in evidence. 

On the trial it appeared that the plaintiffs were owners 
the new theatre in the city of New-York, that the fame ^ 
9th July, t'79S. affefled and valued as a dwelling-houfe under the a^l: of C< 
grefs to provide for the valuation of lands and dwelling-hov 
and the enumeration of (laves within the United States, s 
was taxed as fuch in purfuance of the aA to lay and collet 
14th July, 1 798. direft tax within the United States. The defendant wai 
collector, and for non-payment diftrained, in a regular m 
ner, for the tax, and juftifies that he had a right fo to 
As a theatre merely, it was conceded not to be a dwellii 
houfe within the intent of thefe afls of Congrefs, and it d 
Hot appear that it was ever occupied as fuch. The affeff 
therefore had no authority to affefs it as a dwelling-hoi 
and fubjeAit to the tax on houfes of that defcription ; i 
could the colleftor derive from their afleflment or from s 
warrant which he may have poflefled, an authority to dems 
a tax which no one had a right to impofe. The power 
the afleflbrs was fpecial and limited, and ought to have b< 
ftridtly purfued within the bounds prefcribed by law, am 
was incumbent on the colleAor to fee that he aAed witi 
the fcope of their authority and his own, and by exceedinj 
he became in the eye of the law a trefpaflcr. 

In England the fame rule prevails in regard to their offic 
1 R BL 68. ^^ ^^^ revenue, and particularly in the analogous cafe of tli 
4 T. Rq). 2. 4* land tax. The cafes in the Englifh books are uniform a 
and the cafes* decifive on this point and in none of them was there a da 
cited. entertained whether the officer collefting the tax was Ital 

Vidc4W.&M.r™ •«„ .t.ri.-ft.riij 

ch- 1, and the Their, afts on the fubjeft of the land tax are numerous, s 

*^'r!e5!68' ^^^^ ^^ commiflioners, afleflbrs and colledors pom 

equally extenfive with thofe conferred on the officers ; 

pointed under the aft of Congrefs. They have alfo an : 

peal from the affeflbrs to the commifiioners^fimilar to that &> 


0V aflcflbrs to the principal aflefibr i and in the cafe of mew-yorx 
HarrifbnT. Bollock and others, reported in H. Blackftone, that ^^^r 1S03. 
appeal was made and difmiffed, and the collcftor was ftill itod^TfcT&i 
Idd equally liable. Indeed I know of no cafes more parallel ^• 

m thdr circomftances and more intimately connedled in prin- '^'^'^'^ 

"PJ*- Cited as bcfon 

The d cc i fi o n s on this fubjeA are founded on the general 
nde of the common law, that fpecial powers are to be ftri^y 
obfirvedy and that all minifterial officers concerned in the exe- 
cntioo of them are bound to fee that they are clothed with 
proper authority. If there be any hardfhip in the cafe it has 
betn experienced for ages in England, and it belongs to gov- 
OBment to indemnify its officers when a£Ung with good faith, 
hdividoalt ought not to fuffer, and they can have no other 
jwSdai remedy than the one now fought. I think it no an- 
fwcr to tbjs reafoning to fay that the afleffi>rs had power to 
aflCds this theatre at land^ (which would fubjcA it to a differ- 
ent tax) and that therefore they had authority over the fub- 
jeft matter. Inferior officers are liable for an exceffivt exer- 
dic of power as well as a total want of it. If they fiep out of 
Ac Umits affigned to them they are equally trefpaflers. This 
is fettled even in the cafe of magiftrates' executing a judicial 
truft ; aUhooghthey have jurifdi£tion over the procefs as well 
as the per/on and eaufe^ they are liable if they exceed their au- 
thority. The extent of this do£fa:ine is not only fupported 
by the principles of the common law, and a current of Englifh ^ . 
decifionsy but was adopted by this court in the cafe of Perci- zSoa 
tal againft Jones, in which we gave judgment againft a magif- 
tiate for exceeding his powers. 

Whether by the juft conftru£Hon of the aA of Congrefs it 
admitted of an appeal on the point in queftion to the principal 
afiffiir, I think immaterial. The omiffion to make that ap- 
pcali or if made the decifion of the principal afleilbr againft 
ily woaM not alter the cafe or conclude the appellant. Such 
would ftill depend on the difcretion of a minifterial 
r only* and unlefs fuch difcretion is declared to be defini- 
lifi^ or the nature of the fubjefl requires it to be fo confider- 
•if I deem it a maxim from which we ought not to depart, 
; no one fhall be finally concluded in his rights, with- 
in opportunity to be heard in a court of juftice and the 

decifion of a competent tribunal. 
M to the queftion which concerns the jurifdi£tion of this 



KEW.YORK, court in civil cafes, where the validity of an authority exer- 
May 180 3. ^jf^^j under an aft of the U. States is drawn in controvcrfy, 
Heuderfon &aL I think it cannot originally be doubted. This is fimply an 
J^;- aAion of trefpafs and the pleadings are in the ufual form. 

* The queftion under the aft of Congrefs arifes incidentally up- 

on the evidence on the part of the defendant, and Congrefsi 
by their a£t eftablifhing the judicial courts of the U. States, 
have exprefsly recognized the jurifdiftion of the ftate courts, 
and provided a remedy by writ of error returnable in the Su- 
preme Court of the U. States, in cafe the decifions of the 
ftate courts (hould contravene their laws. 

I am therefore of opinion that we pofTefs jurifdiftion, that 
there was no authority under the z& of Congrefs to impofe 
or collect this tax, and that this action is maintainable againft 
any officer who enforced it. 

Kent J. This •was an aflion of trefpafs quare claufum for 
entering the new theatre at N. York and taking away 325 
dollars. The fafts are, that the defendant was collector of 
the direft continental tax, and the theatre was taxed as the 
dwelling-houfe of John Hodgkinfon, for the above fum, and 
the defendant entered and diftrained for that fum, by virtue 
of a warrant in which the locus in quo was detignated as the 
^weliing-houfe of J. H. aforefaid, although it is admitted that 
it was not in faft his dwelling-houfe. 

The quedion fubmitted is, whether the plaintiffs are enti- 
tled to recover upon thefe fafts. 

The aft of Congrefs of 9th of July 1798 provided for the 
valuation of lands, dwelling-houfes, and flaves, by afleflbrs, to 
be appointed by commiflioncrs. " Every dwelling-houic 
above the value of one hundred dollars, and the lot on which 
it was erefted, not exceeding two acres, was to be valued at 
the rate fuch dwelling-houfe was worth in money, with a due 
regard to iituation. All lands and town lots, except lots on 
which dwelling-houfes were erefted as aforefaid, were to be 
valued by the quantity at the average rate which each lot was 
worth in money, in a due relation to other lands and lots, and 
with reference to all advantages of foil and iituation and to 
all buildings and other improvements of whatever kind, except 
dwelling-houfes aforefaid." In making the aflcfTments the 
afieilbrs were to require from the owners or pofleilbrs of 
dwelling-houfesj lands, or flaves, feparate lifts of each, and 

Laws of U. S. 
V0L4. 168. 

Pa. 176. 
Pa. 17S. 

Pa. 179. 


the life of dweUing-houfes were to fpccify their fituation, di- new-york, 
menfionsy ftories, windows, materials, &c. The lifts of lands ^^^ '^°3- 
and lots were to fpecify the quantity of each traft or lot, the HcndcriC^tL 
nmber, deicription and dimenfions of all buildings thereon, ^• 

except dwclUng-houfes aforcfaid. And the affeffors were ^^^' 

themGdvcs to make the lifts for pcrfons not prepared to ex- i^i. i8o. 
hibit the fame, and where perfons on being required or noti- 
fied, replied or neglefted to furnifli the lifts, the affeffors ^^ «8i. 
vert to enter on the lands, &c. and to make the lifts from the 
beft in&rmation they could obtain. After the lifts were thus 
coUeded, the affeffors were to value the fame in a juft pro- 
portion afbre(aid, and to arrange the lands, dwelling-houfes 
and Hares into three alphabetical lifts. The principal affeffor 
was then to give public notice in each afleffmeufdiftriA, of p g 
the place where the lifts and valuations were to be feen, and 
that appeals were to be received by him relative to erroneous 
or exccffive valuations. Thefe principal aileffors were author- 
iied to receive, hear and determine in a fummary way, nc- Pa. 1S4. 
cording to law and right, all appeals againft the proceedings 
of the afieflbrs : provided that the queftion to be determined 
on an appeal refpeAing the valuation of any lands or dwelHng- 
hooifts {hoold be whether the valuation complained of was in 
a juft relation or proportion to other valuations in the fame 
aflefimcnt diftriA. The appeals were to be in writing, and 
were to fpecify the particular caufe, matter or thing refpefting 
which a decifion was requefted *, and to ftate the ground of 
ineqaaiity or error complained of, by reference to fome other 
valnatioDS in the fame diftriA : and in all cafes to which re- 
finrcnce was to be made in any appeal, the principal affeffor was 
authorized to re-examine and equalize the valuations as ftiould 
appear juft and reafonable. After the expiration of the time 
far appeals, the principal and other affeffors were to tranfmit p^. 185. 
to the commiflioners of the diftriA, copies of their lifts and 
dhftraCb of their proceedings, and the commiflioners were 
aadiorized if manifeft error or imperfeAion appeared in any 
«f die abftraAs, to require the affeflors that the fame be cx- 
fUaed and corredled. 

Thcfc are all the parts of the law that have relation to the 
iMincnt complained of. 

By another aft of Congrefs of the 14th July 1798, a tax Pi.aoS.aoS. 

\ kid and afiefled upon houfes, lands and Haves according ^^9' 


NEW-YORK> to the above valuation, and the furvejor of the revenue 
Miiy X803. ^^ 0^3]^^ Q„^ ^(^ ^f ^i^ {^^ payable for every dwelling-houle 

Henderfon&al and traft Or lot of land, diftinguiflung whsLt was payaUe for 

w ^Lwn. ^^^^^8 boufes and what for lands, and the colledlors were 

' to be fomilhed with thcfe lifts, and were bound to coUeft the 

foms accordingly. In purfuance of this laft aA the defends 

ant entered and coUeAed the fum as ftated in the cafe. 

I. Upon this cafe I am of opinion that the plaintifis had a 
remedy provided by the aA for the error alleged, and that the 
principal afleflbr upon appeal was competent to redrefs the 
grievance. The authority was in general terms to receivi^ 
hear, and determine according to law and right, all appeals 
againft the proceedings of the aileflbr. The limitation of the 
afTefTor's power upon appeal refpeAing the valuation of landi^ 
&c. did not apply to this cafe, for here the appeal would not 
have been refpeAing the valuation, but refpeAing the error lA 
placing the theatre, which was not a dwelling-houfe, on the 
lift appropriated to dwelling-houfes. And as the plaintifli 
did not avail themfelves of the remedy by appeal, they may 
be confidered as having acquicfced in the proceeding of the 
afteflbrs. Here is a fpecial truft created by ftatute, and a 
fpecial remedy provided for the correAion of miflakes in thcf 
execution of it ; and I incline to the opinion, that the d^ 
termination of the principal aiTeilbr upon appeal was intended 

Cowp. 514. jjy ^j^g j^fl. jQ jjg Qf plenary difcretion and final authority. 
The multifarious and minute detail of the proceedings of the 
afleiTors feems to render fuch a difcretion abfolutely neceffiury 
to the due execution of the law } for I diftinguiih this firom 
thofe cafes in the Englifli books where the afleflbrs and cot 

2 R BlacL 68. I^^^' ^ ^^ their land tax have been held trefpafters. There 
the commiflioners had no authority at all over the fubjeA 
matter which they included in the tax. Here the theatre 
was required to be afTefted by the afleilbrs — if a dwelling-houfe 
then as fuch, if not a dwelling-houfe then as a lot of ground 
with due regard to the improvements thereon ; and probably 
the valuation would have been juft the fame, whether it had 
been placed on the one lift or the other. The afiefibrs had 
jurifdiAion of the fubjeA matter : they were bound to aflefs 
that building in the one view or the other, and in the exer- 
cife of that duty, it is alleged and admitted that they did not 
exercife their judgment duly. But this is very different firom 


4e cafe in which diey were not to exarcife any judgment at new-yokk, 
al over the fubjea : in which they had ftcppcd out of their /^ '^^ 
pA and taken cognizance of a fubjeA not at all delegated to Henderfoo&iL 
ikm. In fach an inftance their proceedings would have ^ ^' 
ken tmly €ormm non judiciy and they trefpafiers. Here the ' 
fiiAjcft wu by law fub judice and the grievance is a mere 
CETor, or miftake by them while in the exercife of a lawful 

2d. Another ground that may be taken upon this cafe is, 
Aat the grievance did not arife under the adl of the 14th 
Jdy, by vktue of which the defendant entered. That zd 
oniercd a tax (of which t&e fum colleAed by the defendant 
was a part} to be aflefied upon dwelling-houfes, lands and 
lives, according to the valuations and enumerations to be 
Bade porfiiaBt to the aft of the 9th of July. Congrefs by 
this law referred to, and adopted the valuations that fliould 
be in b& made under the former law, without intending to 
difrrimiwate between thofe valuations that (hould be accu- 
mcely and truly in all refpefts made, from thofe which fhould 
be in CUk made and returned in purfuance of- the firft law. 
The aft of the 14th of July having adopted the valuations 
under the law of the 9th of July, and <»-dered a tax to be 
laid and cbQe&ed accordingly, it was a complete authority 
to the defendant to enter as ftated in the cafe. It would be 
a doArioe I apprehend of moft manifeft inconvenience (if it 
cooU be maintained) that if a tax be ordered by the Legifla- 
tore and to be afiefled and collefted according to fome ante- 
cedent vahiation,that the colleftors of fuch tax become trefpaiT- 
€1% if peradventure there fhould be an error in the afTcflcnent 
^ in the airangement of the prior valuations. 

In England the annual land tax is to tliis day apportioned 
lad aflefied according to an antecedent valuation made as early 
at die year 1692, and this praftice generally and neceiTarily 326. 
fretaili^ in order to avoid the immenfe difficulty and labour of 
at valuations. The continental afTeffinents were alfo 
by the Legiflature of this ftate in the aflHTment and 
of a flate land tax ; and in all thefe cafes of refef- 
1 to a valuation made or to be made by a former law, the 
live confhuftion is that the document referred to is not to 
he dRiBied as accurate, at the peril of the minifterial officer. 
The aft adopting it neceilarily ratifies it as founds for the 


MEW- YORK, fpecific purpofe for which it is to be reforted to. And whe- 

^May 1803. ^i^gj. ^jjjg reference be to a valuation under a law of five daysp 

Hendcrfoo&aL ot five years antecedent to the time of making the reference 

W Bro ^^^ "^^ appear to me to make any difference in the principles 

The gravamen now complained of by the plaintiffs did not 

arife under the aA by virtue of which the tax was laid and 
the defendant entered^ but under a prk)r law direAing the 
valuation, and my opinion is that the lafl aA was a juftifica* 
tion to the defendant, and for thefe reafons the plaintifis are 
not entitled to recover. 

Lewis C. J. concurring in favour of the defendant, jud^ 
ment was ordered to be entered accordingly. 

Callagan and others againft Hallett & Bowne, 

^ . , THE plaintiffs were pilots of the port of New- York. The 
a Branch Pilot defendants owners of a brig called the Neptune. Ihe vefiel 
to affift^a^Tcfftl ^^^ ^^^ driven on fhorc at Barnegat, to bring her from 
in diftref* for a whence fafe into New- York, the defendants had agreed to 
J^5/u"ibfc- g"^cthe plaintifis five hundred dollars, and the Service having 
lately void. been performed, the prefent a£tion was infiituted to recover 
X^iJJj'^ the money. 

The declaration confided of four counts : the firfl, an agree* 
ment with the captain on behalf of his owners ; the fecondj 
on one with the owners themfelves ; the third, work and la- 
bour at the requeft of the defendants ; the fourth, a quantum 
meruerunt. To this the defendants pleaded the general afiiiCA 
A cafe was referved for the opinion of the court whether the 
action was maintainable or not. 

Pendleton for the plaintifis. It has long been fettled that 

the mafier may, when in difirefs, hypothecate either veflcl or 

♦ Barnard T. cargo for neccfTaries to profecute his voyage. Moor 918.* a 

Brid-rnian. L(|^ R^y. 084.+ Noy oc. A fortion he may bind to his cn- 

f Tohnfon r. . • /v »^ 1 •/* 1 1 n -wr % 

Miipp^n. gagements, when the vefiel muit otherwife be loft. If then 

the adlion be maintainable, this can be the only tribunal ; it 
cannot be in the admiralty, and the reafon is that court has 
jurifdiAion in cafes of hypothecation on account of the ex- 
traordinary interefl and becaufe the contra^ is on the credit 


of Ac (hip or goods and their fafe arrivaf.* Owners are not NJ^w-york 
loUe in the Court of Admiralty. 6 Mod. 2- They muft ^^lt^ 
be anfwerable here. Whether the contract was with Calhgan & 


the owners or the mafter is immaterial 5 for the contra£l of «j/" ^ 
the mafter » obligatory on the owner, i Moll. 331. fee. 14. Bownc. 
15. If the mafter ranfoms, the remedy is againft the owner. ■ 

Comu ▼• Hxkbum, Doug. 619. and in Tates v. Hall the 
phintiff recovered on the engagement of the mafter againft 
the ovnersy though the veiTel, for payment of the ranfom of 
wbkk he remauned as a hoftage, was given up in fatisfaAion 
of the ranfom bill. In addition to thefe authorities, the laws 
of the fiate render the contraft valid. 

Boyd contra. Principles of general policy and the inva- 
rable leaning of the court are againft this action ; the 
woidft of our law are conclufive. The fpecies of contraA in 
which the mafter can bind his owners, and the diftindtions 
from this cafe will appear to the court in i Salk. 35. 2 Dall. 
i^. I firo. Pa. Ca. 284. and Abbot on (hipping. 

Per curiam. The defendant moves in arreft of judgment. 
The declaration fiates, 

ift. That the defendants were owners of the brig Nep- 
tnoe ; that the brig, when at fea and bound for New-Tork, 
was in diftrcfs ; that the plaintiffs contracted with the mafter 
to bring her GA into port for 500 dollars ; that they brought 
her in accordingly. 

2d. The like againft owners. 

3d. The ufual counts on a quantum meruit. 

Three qneftions are raifed, 

ift. Whether the aAion is maintainable on the firft count, 
which involves two queftions. 

1. Could the mafter by fuch contraftbind the owners ? 
a. Was the contra^ lawful, the plaintiffs being branch 

pBoU belonging to the port of New- York ? 

ad. Can the defendant move in arreft of judgment after 
Mending the execution of the writ of enquiry, and examin- 
ing wimeflcs ? 

• k i^ nith deference to the learned counfel, conceived that the reafon why tlic 
aUnkr oimot eoteruin a fuit ajrainft owners is hccaufc the procccdinRs are m 
«)*« ad not m ftrfimsm. This reftridkion may perhaps be accounted for from the 
JoIm^ flf the common law which would not permit a ccurt afting on the pnn- 
ci|ki«f another code, to proceed againft the pirfon of the fubjed. 



NEW- YORK, 3d. May not the court order an enquiry de novo on the tlucd 
^May 1803^ ^^yj^j jjj jj^^ ^^^^^ ^f ^j^^ gj.^ ^^^ fecond being held bad ? i 

Callagan & al. The queftion of the right of the xnafter to bind ownersj it 

Hallcti Sc ** ^^^ neccffary to decide. 

Bowne. The legality of the contract is mofV material. 

' The a6t for the regulation of pilots and pilotage for the 

port of New- York ( 7 feff. ch. 3 1. f. 2 & 3.) makes it thedittf 

of pilots to give all the aid and af&ftance in their power to 

any veflel appearing in diArefs on the coaft, and for negle£i: or 

refufal fubje^ls them to a fine or forfeiture of their placet^i 

but for the encouragement of fuch pilots who (hall diftinguifii 

themfelves by their aAivity and readinefs to aid ve£els in di£- 

trefsi it enaAsj that the mader or owner of fuch vefiel (hall 

pay to fuch pilot, who JbaJI have exerted himfelf for the pri^ 

fervation cf fuch veffel^ fuch fum for extra fervices as the 

mafter or owner and fuch pilot can agree upon ; and in cafe 

no fuch agreement can be made, the mafter and wardens of 

the port are empowered to afcertain the reafonable reward* 

It being made the duty of the pilots to aflift the defendants* 

tefTely it was oppreffion in them to exafl: the ftipulation in 

quedion. / It would lead toiabufes of the moft ferious nature 

if fuch contraAs founded on fuch confiderations were held to 

be legal. There are feveral cafes in the books tending to 

fhew the leaning of courts of juftice againft the oppreffiom 

CrL^au 103.^ ^^ perfons in public truft, and the illegality of exacting previ- 

Stolefcury v. ous reward for doing their duty. The law allows them fuf- 

924. * ficient compenfation for extraordinary exertion after the fer- 

vice performed ; which (hews it was an object with the Le- 

giflature to prevent undue advantages being taken. We are 

therefore of opinion the fird and fecond counts are bad, as 

contrary to public policy and the fpirit of the a£t. As to 

the fecond que (lion, whether it be too late to move in arreft 

of judgment after attending the execution of the writ of en* 

quiry, we are of opinion the authorities adduced do not apply 

fl Wiivjic *^ queftions on the merits, but only to formal defeats in the 


On the third point we are of opinion, on the authority of 
Eddowes v. Hopkins in Douglas, that the plaintiff may, on 
payment of cofts, have (if he folicits it) an enquiry dc novo 
on the quan. meruit, rcferving the quedion however, whether 
on fuch inqueft he (liall be entitled to more than his legal 

$.L ~ i: ». 








Vol. I.— Part IT. 






The foUowing RULES of COURT having been 
made since the Publication of those in Mr. Cole- 
MAN*8 Cases of Practice, the Reporter thought 
thev might be acceptable to the Profession. 

April Term, 1 800. 3 

THE court said to the clerks that when the fee- 
hill says that in certain cases there shall be but 
imtaiation of costSy it means that in the case zvhere 
plaintiff might consolidate, and yet proceeds sepa- 
rately^ he shall have costs taxed but in one suit, and 
m^ elect the suit. Also decided. That the plaintiff 
is not entitled to charge entries, on roll until the cause 
to progressed to an issue or judgment. 

OaoberTcrm, 1801. 3 

Ordered, T&at henceforth non-enumerated motions 
shall be entitled to preference only on thefrst, second, 
Ikird, and two last days of each term, and that on 
oi other days, enumerated motions shall have the 

OaobcrTcrm, 1802. J 

Ordered, Tliat when a plaintiff stipulates to bring 

hiscatue to trial on payment of costs, he shall have 

tantfjf days, a/ter a demand made by the defendant, 

trmgfone on his behalf, accompanied ivith service of 

• tert^fied copjf cf the rule to pay the costs, and of 

At Uucd bill, to pay the same; and the defendant. 


onjiling an affidavit of such demand and non-payment^ 
may^ at the expiration of the said twenty days, «- 
ter judgment y as in case of a nonsuitf as of the pre-^ 
ceding term. 

SUPREME COURT, Saturday,! 
January 29, 1803. 3 

Ordered, That every attorney, when he gives mh 
tice of the argument of any enumerated motiony shal^ 
furnish the clerk residing in the city where the court 
shall next be held, with the date thereof j who shall^ 
by the first day of the term, make a calendar of 4|B 
causes which may be noticed, according to such dates. 
Causes of the same date, shall be placed on the ca- 
lendar in the order in which they are received by the 
clerk. Each cause shall he argued according to iti 
standing on the calendar, if the party entitled t0 
bring it on be ready; otherwise it shall lose its prt' 
ference, and not be called again until all the otkert 
are disposed oj. The attorney of either party nib^ 
give notice of the argument. If any cause be in- 
serted on the calendar during the term, it shall nol 
take place, whatever be its date, qf any that are o^ 
it at the opening qf the court. ^ 

Ordered further, TTiat to every case there shall k 
added a note of the questions to be made, and to thdM 
the argument shall be confined. If, however, an^ 
facts iri the case give rise to other questions, that 
also may be argued, unless the adverse party. olfjl09t 
that they are fads not ttppearing material to adifi 
cussion of such new questions, in xohich case tkt^ 
shall be abandoned, or the case referred for amende 
ment, if the court shall think it necessary. 







h August Term, in the Twentt-Seveijth Year of 
our Independence. 

r Jodiam Post against William Wright and Robert 
j Buchan. 

inquest had been taken in this cause, at the last Auguft 1803^ 

ritttii^ in June, at New-York, 

HOFFMAN mored to set it aside, on two affidavits; one 

Ottfc fcjr the plaintiiF, which stated, that he verily believed 

^hadz goodf substantial, and legal defence; the other by " 

Aeoomuel in the cause. This last set forth, that he was been duly ret 

far the Humane Society of New-York, and, in that ^yJ^^&t^ 

opcky. obliged to visit the gaol on Monday m every week ; ^cd?thc dl- 

Att this cause beins noticed for trial on a Monday, he came fcndant doci 

s-^ . 1 r 1. 1 .ft i rt . not appear nor 

■to ooutt mstantly after discharging his duty to the bociety, hiicounrdwho 

vka he found an inquest had been taken in the suit ; that he, ^c pbUntlff' ' 

i nme day, wrote to the attorney of the plaintiff, of- ^^Ji^^^^^' 

to pay all die costs of the inquest, and to engage ^ try ^« rci"Indc " 

in the tbtn sittings, if the plaintiff would abandon though merits 

ll . ,-*irti ^C fworn to, If 

■Mjliriirj . which he refused to do. the abfcnce ot 
"HTniitn also observed, the calendar had been gone through 

Aan once, and that the plaintiff needed not to have lo$t ^^ ^^• 
but for his own obstinacy. 

tUe defendant 
be not account* 




Anguit 1803. 


Wright & Bu- 

Jf a notice of 
notion for 
«M>nfuic be ti- 
tled Ycrfut in- 
fteadofad fec- 
tam, and tlie 
«ffidaTit annex- 
ed right] X ti- 
tled, the notice 

Woods relied on the counter aflfidavit of die plainttff^s 
tomey, which stated, that the cause was duly set down ii 
order, on die day-docket; that it was regularly ca 
and tried; that wKen called oin; -^— ^ ' ' " ' ■ , esqu 
was in court, and in the hearing of the deponent, said he y 
of counsel for the dcfendaifb^ but as he did not see his diei 
nor any of their witnesses, he would not appear; that on t 
the defendants were cdled, and an inquest taken. 

Woods remarked, that, if after these fadls the inqt 
should be set aside, there would be ng end to these appli 
tions. A defendant had only to keep himself and his ^ 
nesscs, or even his counsel out of the way, and be sun 
gain a term whenever he pleased. 

Per curiam. All reasonable notice to attend and defi 
the suit, was givenl The citise ^i^as 6n the ffiy-docketi i 
there is no kind of excuse why the defendant was absent. \ 
had a counsel in court, and might have been there himsi 
with his witnesses. The defendant therefore tan take notU 
by his motion. 

N. B. HofEoian urged strongly the rigour of die |IB 
tice, that it would operate only against the attorney of I 
plaintiiF, that this was the first instance of such.stri£^ 
The court answered, there must be a i5rst time in all proic^ 
ings, that they found it necessary to enforce their rul^2 
had made a determination so to do, as the only mode ofn 
ing them obeyed. 

kadcliff and Livingston, Justices, alSii 

Joiin P. Ryers a^ahul Wiliidtti HilJ^ek 
SPENCER moved, on the common aflidayit, for jiiU^Mfl 
as in case of nonsuit for not proceeding to triaL 

HofBnan resisted the application, because tfie nbtibe |( 
titled William Hillyer flj/iiw/ John P. Rveirs, instesui*d[^1« 
liam Hillyer, ad. sctm. John P. Ryers: thii Be said was {^ 
there being no such suit in existence 'as the one \k wldcjl^ \ 
notice was given, but he added, he would not have u!j^ 
except from its bemg one of Mr. Colden's causes, wBos^ IE 
of health the whole court knew. 

Spencer, contra, observed, that there could be nofonfe 
the obje£bon, unless it appeared that the party Bad %« 

<y ^P^ STAXE QF ^ V-T^ltK. ' | w 

fl^i^ Tie j^Qfjfe sfgia^ ftar judgment as in case of ijon^it jJJ;]J^^ Y» 
far noc proceeding to trial, therefore it must have come from v^IE^i^ 
adUenduit. In ^^.neift j)la<;e, ^t was qn an affidavit, a copy ' ^^f^ 
libmof YF4S ^njpjsx^ apd.tfet aflSd^vit was rightly entituled- HiUyer, 
kii a mere questipn of .who shall pay costs. There has been . ^ , 
|BjKli|mtpp[i^j.^n4 the defendantkept all the circmt with prindpie 

Hi WKBOBes. of executing a 

((fO^Em^ As ^ is.the.%st default, wiU the court oblige .^rurfdl"^ 

OS to stipuhte? ?« ^^}h^i 

n . « . , , J*"- Jnft- '^s 

f er Omni. Stipulate to try at the neict circuit for the gi^oitiiecooit, 
dtj and county of New-Torj(, and .pay the costs of the pre- to ret afide the 

execution of 
^^' the writ bc- 

|l.aa(5liff 5«id.Liyin£}tQn,jui^ticps,abs^^ w«oIi^*ti£rf. 


dhlB^ J^pcl^f on the dqm^eof William Rickets d^feifd^t^ 
^'ufiQUfUdodt, .and jE^bUip Y.m Cpurtlandt^ Ken mSed*^ 

Batten at Harw 

against )rifon 3, Bot. ai 

Matthias iBockhout and Abraham Budkhout. 
IHE issue in this cause had been joined in January 1801, if there be ■ 
anjnotioe of trial given in the June following: it however procccding°to 
Mwtcoroe.onyinconsequenceof.the defendants* applying Lntmufta^Jaii 
iw a oommisnon to obtain testimony from -Virginia. On the ^^^g^^®^ *' ^ 
ani?al of the commission in that state, it was found the tunity; ifhc 
wibiesshad removed into Kentucky, whither he was followed, be a waWer and 
and his evidence to the interrogatories taken on a deposition, co^if^fr he"afl^ 
made before two justices of the peace. A copy of this, ac- ^r jud^m"„7* 
cOBmamed with an afiidavit of the fa^ls, was served on the «* <" 5^ ^ 
pauotifls' attorney m August 1802, and communication at the 
ttne time made, that a regular commission would be sued 
Maodaent tnto Kentucky. On this the plaintifFdid not no^ 
tkefar trial; however -for not proceeding to which. 
Woods now moved for judgment as in case of nonsuit. 
4jpepoer opposed, the application, a^Milig top late, insist- 
'If I^^Oj^ to have been ipade the y^ry fim t$rm ^fter.the 

ftt curiam. The defendant \isk$ not ac(:QVTited for his de- 
^HMjAai:hc,nf^jdo^e9 and the application be not immedi- 

§^^tlieJUches, the default is waived, and cannot now 
anadsaatage of. 




Auguft 1S05. 


The rule for 
appHet only to 
fcYcral anions 
en one policy, 
and doci not 
extend to fere* 
Tend policies 
on one rifle tbo' 
tbe queftion be 
the iame on all, 
bccaufe the 
contradtf are 

Woods hoped the court would order the pbuntiff to 

Per curiam. He is not bound to stipulate. 

Spencer prayed costs for resisting the applicatipn. 

Per curiam. Let the Plaintiff take them. 

Ordered, That the defendant take nothing by his mod 
and pay the plaintiff his costs of opposing. 

Raddiff and Livingston, justices, ab8< 

Peter A. Camman against the New-York Insurai 

THE plaintiff had, for himself and several other pen 
with whom he was variously interested, effeded eleven | 
cies on distind parts of the cargo of the same vessel. ' 
n2tme of the plaintiff was in each insurance, but associ 
with different parties, according as he was conne£led. ' 
point in dispute was the same in all. 

Hoffman moved to consolidate the anions, or to stay | 
ceedings in ten of the suits till the eleventh was determiii 
the defendants being willing to pay on the residue, if 1 
should be determined against them. The obje£i of hb 
deavor was, as he said, to save the enormous costs wl 
would otherwise accrue. 

L. Ogden* The contra£ls are several*, and though a m 
ber of adtions on one policy will be consolidated, that is 
cause the contrafi is one, and therefore the very reason of 
practice in such a case, is sufficient to overrule the pre 

An application was made by myself to this court, forli 
to consolidate five actions on five promissory notes to the s 
plaintiff, and refused, because of the diversity of the i 

Per curiam. The contra£bs being separate and indepen 
it is not a case for consolidation, and not to be distinguii 
from that of the notes. There never was an instance ol^ 
lolidating different policies. 

RadcUff and Livingston, justices, ab 

* By the prance of the EnglUh coiutt, if the defendant te hd 
haU la two adlona which might be joined, the plaintiff^vin be«Mh 
confolidate and htf« to pay the cofti of the appUcatioa. Codl v. Id 



Jaunes Shuter against Richard S, Hallett. 

IX L OGDEN moved for a rtile to vacate the rule for a 
comaission which had issued in this cause in the spring of 
1802. The fst&Sf as appeared by affidavit, were these: 

A OHnxnission had issued at that time, in which the de- 
(miam had joined, but not being returned, another was sued 
out in November last, and as there were no hopes of the first 
being letimied, the parties agreed that the testimony taken 
on the second, which was on the same interrogatories, should 
beread in eridence on the trial. After this the cause was duly 
nodoed, but the judge refused to let it come on, as the coun- 
•d for the defendant had joined in the commission. 

Per curiam. The commission is as much the defendant's 
vthe pontiff's, and he may take the benefit of it on trial* 
We cannot therefore vacate the rule, but the plaintiff may 
Wie cme to proceed to trial notwithstanding the commis- 

^ Radcliff and Livingston, justices, absent* 

Auguft 1803. 

If the defend* 
ant hai joined 
in a coDunifli- 
on, the conit 
wlU not on the 
plaintiff's tLfi 
plication va- 
cate the rule by 
which it wma 
granted, but 
will giant one 
to proceed to 
trial notwitb- 

■ Bethuel Way and Hannah his wife, 

Nicholas Bradt.' 
IT was said by the court, in this suit, that when a Judge q^^^^ 
on a drcuit has not time to try a cause, the costs must abide 
tbecfentof the suit. 

RadcliflF and Livingston, justices, absents 

Ebenezer Weed, by Noah Weed, his guardian. 
Caleb Ellis. 
Per coriam. A younger issue being tried, is not always 
...CRidiisive that a cause might have been brought oh*. The 
, ftom will sometimes take up a cause they may think short, 
,^^,1^ diej will not enter into a long one. 

Raddiff and Livingston, justices, absent. 

Joseph Grover against Benjamin Green. 
!l.^^'nS defimdant was attending a reference, under a rule 
**«MdM€Oiixt o£ common pleas for Cayuga, m a suit wherem 

A younKcr i(« 
fne tried, no 
proof that aa 
older misht 


vi.Koddi€ki and Shi? exi| ante jp 

Court will noc 
dircharge on 
motion, a per- 
fon arretted 
while attend- 
ing a reference 
under an order 
gf fhe coJumoD 

Amft^l '^^"^ jpWntiff, and tbe fte^es^ fl^rtfiff ,^{e^d9J^U wha 
he (Green) was arrested bj, on ^ y3;i.t Qut of J^ 
Emmott moved for a rule l;^t the defendant be dia 

pieM,iftha-r ^^ ^^^ ^ custody pn common bail, tl^e pJaintiflF hai^iu 
5,^Jta^^ abused the process of ^e cqui1> but po notice bad l|^eq| 
htttSun.QDiy given of .the motion. 

l^jtufe. ^ Pc^ curiam. By this ^eans any body may get hims^ 

Enimott. ,If the ^ffidayit be false^ the party may be in^ 
di^ed for perjury. 

Per cunam. But the plaintiflF n\ay 4ose his debt. Tak^ 

a .rule to fitieyr ca\ise the first day of n^t terixi why Jh|| 

shoi^d not be .^isqharged^ apd in the niean time letpm 

ceedings be stai(i. ,4 

R^di;liff' and Liying^ton^ justices, abae^li 

Hugh Lackey and Joshua Briggs against Darnel 
McDonald'. : 

u^Zilt^. THE plaintiffs, in July .1802, had stipulated to try du^ 
"w^hkh'Se is ^^"^® ^* ^® "^^^ circuit court, and did not do so. ^ 

fjn^ccd to M. B. Hildreth, on this ground, now moved for judg-^' 

fun, the plain- ment as in case of nonsuit. 

linue^wiibouT Schoenhoven read an affidavit, which was not denied, «$tat» 

^ment of j^^^ ^^^ ^^ defendant, after the conunencement of the«ili^, 

and before a trial could be had, was sentenced to .the.statt 

prison, where be still ^remained, and prayed to discondnut^ 

without payment of costs. 

Van Ness, amicus curiae, mentioned, that when the de» 
fendant rendered proceedings useless, the court was alwajft. 
disposed to permit a plaintiff" to discontinue without costS» 
In Jackson on the demise of Ludlow v. YTebb^ after i|iiie 
joined the defendant abandoned the possession, and,-Uie,j||e|» 
tsor of the plaintiff having entered, did not nodce the«Q^ 
for trial. The defendant th^n niQv^ ipr judgment j$ j|p 
caseof .Jion&uit,.but the. court denied lijis motion, and gave' 
leave to discontinue without payment of costs. 

Per curiam. The opinion of the. court is, th^t svffident 
has be^n she^vn to preveQt the judgi^enti^.pQnsuat. The 
defeaiint.fc^ fey^feis.©??? /^ deprived tbCjjj^u^^ f^^ 

6* -ffife sfATfi 6f i^iit^Ymt. 



IfliiB^ which Atf inight lave had againsit Ris person; his 
BSfrs oM of ihetr reach, Aid /A^rf b^hh own aft. It is 
M therefore ntcessary that Aty shorfd proceca aftd inctnr 
f^ces for no^ng, as thetfe is not ariy property frofn 
Wcnce they can be rehtArirseA The plainfiffs ttetefore 
Ih Icttcitied to di^dtithnfe^ atid without costs. 

fistdclttf' afid LitlngstonV jusficeSj arbsent. 

Rachel Malin against Ephraim Kinney. 
The safrie dgdittst Nathan Ldfte. 

THESE causes Were noticed for trial at flie circuit held 
ftrOntazio in June 1802!. The defendants attended with 
fitar witnesses, but At jlldintiflF hot bringing oh the catt- 
ies, Che defendarrts agreed to waite taking advantage of it, 
fnrided the plaintiff would cdhseht that the two above suits 
iorid Aide the decision of si case nlade In one by the saiiie 
fbiouff agunst George Brbiim, which tUhied oh the saiiie 
pointy and hadj togethisr With another of tke same sort, been 
triedL The pbintiff acceded to the [ii^b^osition, but at the 
fast term applied to the court to be released from his en^ 
gagement. This the court was pleased to order. 

Emmott now molred for judgment of nonsuit, and that the 
fihinfifr ply the costs not only of not proceeding to trial in 
180S, but those also for not trying at the last circuit. He 
iiJtfdkled that d^ ihe agfrberfient was dorle away dn the ap- 
jiEcsttHiri of die jJlilritiff, the defendant had a right td those 
&te which he tjraived only in consequence of that agtee- 
ttfet: The agtechient was the cbnsideratioh bf the Waiver, 
iad Ae consideirition bcihg taken a\Vay, he had i right to 
^iSkba not waiving. Then is to the costs of the last cir- 
h&f ft was clear he was entitled; because, as the plaintiff 
UBeftfcreiS'ed arid hid nbt tried, it ^as manifest he 
Vii m '^faiilt dhA Cb^ls dtle. 

iteBrtcbntii, sfeciVed bn affedaVit, that the rulctodis- 
3Uge &e agreement Mras ihaJb at the latter part of the 
ii \fiTn, and diat ftbrii the late information he received of 
ill he could not avail himself, at tlie last circuit j of the ad- 
(wbge It a^ Jcd. 

. ter cdiiaim. The applicatioh is for judgment as in cafte 
rf noosui^ and to pay two sets of costs? tho^ of Juire 


Auguft 1803. 

lackey Bi 


If a plaintiff 
get relieved 
from hit 
own Itipola- 
tion he reftora 
the defendant 
to all rights at 
he ftood when 
the ftipulation 
was eotCTfd 


^^*7'^ 1802, and those of the last circuit. Four causes w^ie 4 
' pending : Two were tried, and, after the court rose, thfl 

was>a stipulation that the two'causes not tried, should al^ 
the same event as those which had been tried. A&^ 
plicadon was made In May last to be relieved; that the ^ 
causes not tried might be restored, and the plaindir^ 
boimd by his stipulation: This was ordered, and thecal^ 
restored as in June 1802. If the plaintiff was relievedf;^ 
defendant was also; and then the stipulation being vacate^ 
the causes must stand in the same situation as in June 18(9!| 
If the defendant had then applied, nothing appears why dj 
rule should not then have been granted, at least a rul^ 
stipulate and pay costs. The only reason to excuse 
offered is, that the plaintiff did not receive notice ofj 
own rule. Both circuits mentioned have passed wit 
trial; therefore the defendant must have the effe£l of J 
motion, unless the plaintiff stipulate to try the cause at^( 
next circmtj and pay the costs of that in June last. ju 
Radcliff and LivmgStton, justices, ahlg| 

Ambrose Spencer against Samuel B Wcbb,'^ 

on Scire Facias. 
THE fa£b| as they appeared by affidavit, were as U lows: « 

the ruic"toap. The defendant was served with a scire facias onTaM 

need not bc^*** day the Sd of May last, which was returned scire fedjj 

fcr^icc of the *^ ^^^ ^ *® ^^^ ^^^ ^^ plaintiff entered a rule^fj 

f^{. fa. is notice the defendant to appear in four days and plead in twaD( 

the default may after notice, or that his default be entered: Notice of,l| 

n^nS^^ ^^ ^"^s ^^ given, nor was it put up in any conspiciM| 

^id "*cnt'c»ii- P^'^ ^^ *^ clerVs office, nor viras any affidavit of notice 

not be entered file. Default was entered, without any such affidaviL o 

till four days ' vi 

after, if it be, the 14th of May, on which day the plaintiff entered a 

wmb«fct"afidr,. judgment also. The plaintiff swore to a just and matenf 

iffep^f^''^^ defence, and that he had paid tiic plaintiff six hnndted.d^ 

ftani No de- lars which had not been allowed him, and offered' to let 11 
faclteverfct , , , . ' gt 

afide wh^re- judgment Stand as a secunty. ^ 

acconntedfor On these grounds Van Ve£len moved to set aside n 

Sful2^5m?° default and judgment thereon, and that the defendant^ 

let in to plead. 

Spencer. There are several ground^ of objedion tab 


nc^edings. One is', that notice ouirKt to haire been AtBAHY, 
f the return of the sci. fa. and of the rule chtereJ. \..^--v-^-^ 
he fourth rule of this court, nlade in April tcnn ^Pf^^r 
it appears, that rules to appear on sci. fti, and in Wcbli. 
nta are placed on the same footing. It is not ne- — ■^— 

; OK entiering the rule, to give notice that the rule has 
iteed. The notices by the sci. fa. aiid in ejefiment,* 
dedantian' arc tantamount. When the attorney ap- 
thed^'nodce is required^. But a sci. fa. is notice in 

The default therefore. Being rcgulariy cntercdy 
The next question then is whether, if the 
are cotTc£t in entering the default in four 
fecoortwilMet the defendant in, on die merits? 
Mr. StDugbtDn,f decided the hst term, isfinpbint. 
Acre is no account given for not appearing, the de«* 
I ooktedv and will not be set aside. There is no ex« 
Eds nor entering an appearance, and for four days the 
but oettamly slept. In Edwards ad sCtm. M^Kinstry , 
lan's Cases of Praftice ISl-, the court said that a de- 
mosf always be accounted for. 
iaam as amicus curis bbsetved, that it being a point 
a£dce of some importance, he took the liberty to men- 
that according to the English pracMce when, on a 
a. to reviver two nilills were returned, judgment was 
d of couise on shewing the returns to the officer, 
m Vecten. We are not to obtain the efieC^ of our 
lo for two' reasons. Because according to the English 
ice there are no rules on a sci. fa. and because no ao 
L is ^ven for the default. As to the first, whatever 
nfiice may be in England, our courts have established 
s four day rule is to be entered on die return of the 
and tfaea the ordinary rule is to be given, and if the 
k bef not entered, the defendant may come in at any 

A scire facias is to all intents a new suit, and there- 
loe sluMild be the same practice as in other cases \ 
maf be a plea &c. In this the default has pro- 
lfM> injuiy. There could be no judgment till next 
r'llifeTmre this rigid rule of saying that if you do not 
iltfwfe^'wfll'iiot heur you, thou^ you give evidence of 

J. -t. R 





^ ^ r 



reaaons for our ihterf erenoe, can have no force when we ^ 
» ply to the discretion of the court. The power used k 
these cases is founded on justice^ and whenever any tfainj 
like injustice presents itself, the court will interpose an 
see that no advantage is taken. Here the defendant offers t 
let the judgment stand, therefore the plaintiff runs no rial 
as the defendant's lands are bound. He swears six hon 
dred dollars have been paid on the judgment: The questioi 
then iS| whether the defendant does not necessarily desenn 
favor. Whether the plsdntiff shall have execution for A 
hundred dollars more than are due when merits are swon 
to. That the plaintiff is able to repay it, is no answer: dM 
oppression of thus wringing so much from the defendai 
may be intolerable. Notice, either express or construdUNj 
is necessary to a default; here there is neither. GriswoA 
▼. Stoughton does not apply; it was a mere irregularity aid 
no affidavit of merits. The court can not too much bear M 
view that no injury can result by letting the defendant b tM 

Spencer in reply. I have strong doubts whether M'i 
•cire facias there can be any defence* except nul tiel recofdj 
or the judgment satisfied. 

Per curiam. It appears that the defendant did not enter 
any appearance before the expiration of the rule, nor indeed 
was it until some weeks after, that any appearance was en- 
tered. It is suggested in answer, that notice ought to hife 
been served of the entry of the rule; this is on the 6tte 
hand denied; and rightly. The default therefore is regufai^ 
and no reason whatever is assigned how it has been incorreft- 
In all such cases we have determined to hold the party to Irii 
default. The frule of this court says << Upon the return. of 
" writs of sci. fa. if the defendant be returned warned^ -M^ 
<< the second writ be returned nihil, the defendant sUP 

* To a Tel. fa. the defendant may plead in abatement, or in bar, a liji' 
470W But he can plead nothing in bar, which he mig^thave pleiM IP 
the oii);inal a^ion. Where therefore the judj^ent wat on a wamnt if 
attorney, as the defendant could hare had no opportunity of j»leadif^ M 
court of K. n. hat ordered an iflfuc to let in the defence of uiury. Cook '%, 
Jonei Cowp. 727. The defendant may alfo plead in ahatcauac t|9K 
there were not 15 days betwen the teile and retom. Nares t. EadoC 
Huntingdon. Lut. 11. and for want of thcfe ic days the fop. court hhnfe 
afide on motion the proceedings on a fd. ia. Woodman Ac others w^uxm^ 
Little. Col. Ca. Prae. f 4. as a fcire facias is a Judicial writ. See Coii. 
DL title abatement. (H. 14.) f Rule of Oaobcr 1791, Col»Ck. Ptic >l* 



^ ifpor in four days, or judgment shall be entered by de- 
vfnik.* Therefore the entry of the default is perfeftly 
flBHUCenc "with the praAice of the court, and must remain: 
litas jodgment ought not to have been signed till four days 
^, and it appears to have been done on the very day, that 
■mguhr^ and therefore must be set aside. 

RadcliflF and Livingston, justices, absent. 

William Neilson 
Catharine Cox, Magdalene Bcekman, AbrahamH. 
Beekman^ and Johannah his Wife. 
mis was an application on a point of pradice in par- 
liiDai Tlie defendants had not appeared, and as the aft 
don DOC specify any mode of compelling them to come in, 
Voodft, on behalf of Riggs, moved that the following rule 
be made absolute, which the court, after perusal, was pleased 

R U L K 

Nnr-York Supreme Court."" 
William Neilson, 


Beekman, Abraham H. 
Beekiiun and Johannah 

In Partition. 
The defendants having neg- 
leSted to answer or plead to 
Catharine Cox, Magdalene ».the petition of the plaintiff, 

within the time allowed them 
by a rule of this court for 
that purpose, and it appear- 
Bf bf the said petition, that the plaintifFis seised in fee sim- 
iK » tenant in conmion, of two undivided fifth parts of 
«c (remises in the said petition mentioned, and that the 
dcfadant Catharine Cox is seised in fee simple, as tenant 
m oominon, of one equal undivided fifth part thereof, and 
Asihe defendant Magdalene Beekman is seised in fee sim- 
iK as tenant in common, of one equal undivided fiftli part 
and that the defendants Abraham H. Beekman and 
hisi^wife, in right of the said Johannah, arc seised 
pie of one equal undivided fifth part thereof, whicli 
.'■t Uq; denied, the court doth therefore deter* 
\ rights of the said parties to be,'as in the s;iid petition 
I whereupon and on motion of Mr. Riggs, attorney 


Augull 1993* 


In partition. If 
the defendints 
do not appear 
the court wiU 
on motion 
make an order 
for partitioo aa 

Rule in par> 



Aufiift 1803. 

Cox k, others. 

To chaTjgc the 
venue in a 
traulitory ac- 
tion, v^ry fpc- 
cial cause muH 
be [hewn. 

fior die plauUifFj It is or^d^^d, {di^ f^tjw of !(i» f^ 
premises be sm^ betw;een d^ e^^d f^^ntjlesj accKraiiPI 
to their eaid iie8|>ediye rights^ ai^ it l& 9r4ere4t th%t At J! 
C. p. & £. F. l>eiag three xesgeikMio f)reehpM«pr6 ^ t^ jjq 
of New-York, be, smd t^ey a^e hereby jappo^nt^d fiomnki 
sioners to make t^ said partition amcM^g the s^ puMM 
quality and quantity relatively considered) according to dM 
respeftive rights of the parties aforesaid. 

N. B. The commissioner? *rie n?med by the party to tb< 
court, and if approved of, ^ppofnted according to the no- 
mination. I 
Radcliff and Livingston, justices, abseirt* 

John Woods against Maus R. Van Ranken. 

VAN VECTEN moved to change the venue from N«^» 
York to Albany, in an a£bion on die following promisaqil 
note : « On or before the 1 8di day of February next, for va||| 
<< received, I promise to pay at the Bank of Albany, to Vbm 
" R. Van Ranken or order, seven hundred and twenty-fin^ 
« dollars. Witness my hand diis 9th day of August 180^ 

The deposition, on which he moved, stated it to have beal: 
given on a usurious consideration, but did not set forth lA 
what the usury consisted, nor between whom it had 

Woods read an affidavit madje by the agent of the ] 
who was the second indorsee, denying all usury in i 
or any one else to his knowledge, and that the note was O^ 
ken in part payment for a bona fide sale of goods in NefN 
York. In addition to this. Woods insisted on the genfHJ 
rule, that in tran^tory a£tions the venue is never chafgrf 
except on very cogent and strong circumstances. He akfl 
relied on the deficiency of the defendant's affidavit. .., 

Per curiam. This is an application to change the wea^ 
in a transitory a£lion^ special cause ought therefore to h^fll 
been shewn. We are of opinion that what has been doaj 
is not sufficient to take the case out of the general rule ado^ 
cd with respeA to suits of this nature. Tlie defendafl 
ought to have ofiered as much to diange, as the opposil 
party would have beea obliged to alleiige in order to retaa 
Supposing therefore that to be the criterion, he ought t 



kn the nsuiy or^inated, and that the witnesses re- 
re i but the affidavit does not state when tlie usury 
» nor that the cause of a£lion arose in Albany. 
1^ the note is apparently made here, and payable 
lank of Albany, it was negociated in New-York, 

presumption is, it was made where it was passed, 
irinc now afted upon is established 1 D. and E. 781. 
ressary to shew that the cause of ad ion arose* and 
lerial testimony is to be given in the place where the 
s to be removed. The defendant therefore can take 

by his motion. 

RadclifF and Livingston, justices, absent. 

Tus Jackson against Rodolphus Mann. 
OWORTH moved for judgment as in case of non- 
vet proceeding to trial according to notice, on an 
tttdng that the cause being duly noticed, the de- 
issoerf and served subpoenas on his witnesses, after 
lie Bocke was countermanded. 
lAoven contra, read an affidavit setting forth that the 
fior w^nt of a material witness, who could not be 
bA, was unable to proceed to trial, and that notice of 
sand had been given four days before the circuit court) 
lore inristed there was no ground for the application, 
t from the principle of Brant v. Buckhout,f the de- 
ceiiid, not only take nothing by his motion, but the 
was entitled to his costs for opposing. 
Iworth distinguished this from the case mentioned, 
efiendant's having been here put to costs. 
nuiam. The only question here is, who shall 
expencc. The plaintiff must certainly bear the 
iif his OMm countermand : That and the notice are 
U8 ads; the expences therefore incurred after no- 
rays fall to him when he countermands. The judg- 
Bonsuic must therefore be refused, but the plaintiff 
te defendant the costs of subpoenaing his witnesses 
the countermand. 

Radcliff and Livingston, justices, absent. 


Auguft 1S03. 

^ y » 




If a plaintaiOr 
notice his caufe 
for trial, and 
it. he mull pay 
the defendant 
the intermedi- 
ate culls of fub- 

t Ante. 113. 

iMC4a.aDd the opinion of Rri'lcIilT, J. in which the principles 
lUi pndke are coucifcly axU accurately Hated. 


A*u^«. Walter Martin 

Daniel Bradley, Bildad Beach and Nabby Beaiel 


then. Administrators of Elnathan Beach^ late Shefi 

of Onondaga. 
Debt will not THIS was an aftion of debt against the administratort c 
lie agaiiiii Che tlic sheriflF of Onond^ga for an escape in the life time of thd 

adminillrators , " * 

of a ihcr.flf,for intestate. 

ufe^tinuT o" * ^ Thc defendant put in a general demurrer to the dedi 
ikdr intclutc. yarion^ 

Henry in support of the demurrer. Tlie present qua 
tion will give but litde trouble to the court, for as it is d^ 
for ap escape against the administrators of a sheriff, it i9 
bet brought to a single point, whether this suit does not nl 
widxin the nde of << zQxo personalis moritur cum pcrsow 
It is founded on a tort, arising ex delifio of the intestateiji 
Black. Com. S02 is express that it is not maintainablei .^ 
cause the right against the intestate is derived ex deEda 
and therefore dies with the person. In the case of Hai&lil^ 
V. Trott Cowp. 375 Lord Mansfield in setding the meaniqi 
and extent of the rule now insisted on, specifies the afUoB 
of escape against a sheriff, as one which, from its causei dia 
with the person. It is an injury ex maleficio, from wtiA 
the intestate derived no advantage to himself, and this is dM 
principle on which his personal representative is not answcVr 
able. Ibid. 376. The same doArine is to be found 
Fitzh. N. B. 121 A, n. c. In Berwick v. Andrews 6 HtpL 
126.* case 171. In Dyer 271. a.f the same principle isao* 
knowledged, for it is there ruled, that debt for an esofC 
will not lie against an heir. And in Whitacres v. Ondkj 
and others executors, j: it was held that it could not be tv^ 
ported against the warden of the fleet. From these audio- 
rities it is evident the a&ion cannot be maintained. 

Russel contra, merely referred the court to 1 Com. Bi 
tide administration B. 14 and the authorities there^ to prof; 

• It was not the point in oneftton, but a di^um of Powdl, f. 

Holt raid he had known adjudged contrary. The law however Ii clittl| 
as in Hambly v. Trott. 

t Tlut was agaiolt the heir of the gaoler. \ l>ytt, ixx, \^ 


dnft lAen the nound of complaint rested on tort or mis- i^^°,^*i^» 

WKBKtt tnere was a remedy agamst the admmistrators.* v v ■ * 

ftr curiam. The law has been settled, both from the Martin 

tHe of Dyer and Fkzhcrbert, as stated by the counsel for BraJicy and o- 
tbe defendant, judgment must therefore be in favor of the ' 

The People agahist Cornelius Shaw. 
ON certiorari to a conyi£tion for forcible entry and de- 
tainer before the justices in Renselacr County. The return n-.em for r.ircl- 

tO the writ was dc tain" r7muft 

« Renaelaer County -% AN inquisition of the people of {1,*^** *»fe[u"or** 
Sue of New-York, S the state of New-York taken at a^ ''»*^ "">« o^. 

au • fl • 1 r-r* , t f y ^^^ cotry, and 

^liaHick m the county of Rcnseher on the twenty fourth aifo (hew an 

* diy of March in tlie year of our Lord one thousand eight d°fcndant! To 
•tanhedandoneand inthe25th year of the Indepen- ^'^^J^^^* 
*denoeof the United States of America by the oaths of in .ictmcnt it 

__ , • mutt appear 

* Duuel && good and lawful men of the said county be- tkat the partf 
*ioK John Cumstock esquire one of the justices assigned irdietnient. 
"tobep the peace in the said county and also to hear and Jrant*^rt-ixiS^ 
*deleniune divers felonies trespasses and other misdc- twt-"»» 

* nonon in the said county committed ; who say upon 
" dieir oathft aforesaid that Samuel Millerman of the town 
"of Hoasick aforesaid yeoman long since lawfully and 
" peaceably was seised in his demesne as of fee of and in 
" one messuage consisting of a dwelling house with the 
"tpportenances in Hoasick in the county aforesaid and 
*Conielius Shaw of the said town of Hoasick and county 
"ilKesaid bbourer on the fourteenth day of instant M:irch 
"at die said town of Hoasick and county aforesaid with 
"MRMig hand and armed force the said messuage or free- 
*Ud aforesaid did without law or right detain and him 
"ike said Samuel Millerman thereof and with strong hand 
"alanned force so did keep out from the said messuage 
"vkh die appurtenances aforesaid from the said fourtccntli 
'jqr of iast. March in this present year of our Lord one 
^llmmiiMl eight hundred and one until the day of the taking 
*«t'dyi inquisition with like strong hand and armed force 

* IWr b noC uiy fach anthority. The reference allu«!ed to mull be 
"' I Dyw M* •• in marg. but it 4oci not warrant tke pvfition. 


CASES m THE suFRraibE cxytTRrT 


Aaguft 1803. 

M ^ ' 


(^dklkeq» out amddeth^lBtqr •life td die greol^dMlMkhtt 
« of the peace oi the ytofit of iim state aod tike tenri 
« the statute in such- ease made and provided ;'we the jiiA 
M aforesaid upon the evidence given dechre ite aflbiUri 
« inquest taken to be true. Witness our hands fcc ' ' 
A writ of restitution having issued on the coBn£Kili 
and the proceedings being removed, the defendant filed A 
following exceptions. 

1 Gomeliw SbAlrJf 
Supreme Court, > ;ld scttair 

3 The People. ,. 

<< AND the said Cornelius by Walter Wood his atttfnv 
« says that the said indictment aforesaid and the reoordll 
<< the said conviction now remaining in this court are whtf 
« insufficient and void and he diere&Mre prays that the mi 
<< may be quashed and that he may be restored to the ^omi 
« sion of the messuage, with the appurtenances^* ^iiAiich M 
<f been unjustly and contrary to the law of the biid' tal 
« from him,, and for causes of exception to the said indil 
<* ment and record of coiivi£bion he sets down and aksi 
<« the following : 

<< 1st. Because it does not appear by the said recovd di 
<< any complaint was exhibited to the said justice agHl 
<< this defendant for a forcible entry or detamer. 

« 2d. Because it docs not appear in what manner d 
« defendant had- notice of the said proceedings or wli«l| 
« he had any notice thereof. 

« 3d* Because it does not appear that this defendant iA 
« allowed an opportunity to defend himself beldW oo- 1 
" said diarge. 

« 4tlu Because it does not appear but that this delienA 
<< appeared before the said justice and traversed thcf.^ 
" charge. 

<< 5th. Because it does not appear that any pToeeecfii 
<< were had before the said' justice or any judgmeitt gjt 
« by him, which could warrant the issiung of the writ 
« restitution. 

« 6th. Because it does not appear by the said iniiVjHrt 
<< the seisin of the said Samuel MiUeiman continued ui 
«* the time of the alleged force. 


^iti Bmm m ff khtMmabeA in the tiM hriiatfiaftf in fLft^. 
y, 5»ttwltattifMthitdrf<>ficfam emeredm <^^lj;^^ 
M tfttt be entered «t tB. 
Ae idA kididment k rep ng mwc and 

rfafllkeflite¥eMtoM^m(M>ed to^qnaA tlieindia^ 
MM^ iddtfttwritof re-#etftiefici6i»isMe. HeMM|i]»« 
Ji f ii li i n rf^ variety rf cattses of eieefcim shewn, kad 
wmot i fhem «|^ Ae proceedings wcmldndc ie alk)ire4 
Itiiiiuifa^enflttMttoshewdiattlie seisin of the 
I tD| and sc the time cf the forcMe entrf ^ 
iliew mHif Marted he waw '^Iditg since tei^d** 
•"Cta^ SL Tide 7oit%le Eatrf^ B. Z. D. 4. The 
l|Mii Maui Jii is ffml on the authority o( 9 Hawk* M. 
h^t^trSlw ^ 4a Ibe it flMiat be onde €e> appeair ht what 
i « wfaji time the defitfidam eacered, or at leatt 
Itfiar, flekharofwfaichaiediewii. 
Ibot oootia. Two objeOima may be made io diia m». 
ti«L Hn^ dHl aa it eomei bafore the (iouft on eeftiocari* 
MWMglc ad hsfife lieefi aas^iied ^ the mocioti to quash is 
tnfMilmpioper^ tiMft is to be simr no #spteif author 
dif far tkia p aa ki a % but it may be sopported on gcnetal 
^iMflBai whaaa psooec^nga are removed and a retaru 
flide^ dbe prafiiar U to assign errors* The first fire ei«- 
Wflhaii iii iiiwetf aato the firm of die return. For tb^ 
tfa jbMfae Hf Ika peace^ there is none. He sends np all 
vb pfDeaenags bafote him* On eKamlnatiotty the cotiit 
triiaaa tiMft mtist necessarily hare been acomplaint, and 
Aiftif diere had bSeii a irarerse^ it would have been in 
aa d the ptoceedii^ are sent up} if therefore it 
IMI^peaf k eocdd neVM have been taken* The only 
I'M thai by Aa diarge in the indidment it does not 
^ faraible entry took pkce. The entry is 
^ die detainer is the crime ; the statute is against 
efttry or decsdner, therefore unnecessary to 
fdian the detaining. From the nature of the 
Md die attdiority benig given to the magis- 
I of dlia kiml most neeessarily be before 
r dteftoa aa^udtatad with formsf and therefore the 
: insist onaiigid adherence to them. 

lit casbH in the supreme OOUWt 

^^^NT, Emmott in reply. The jmi&ioe now adoptedy b thait 
' every day both in this, and the English courts. Becai 
the authority in cases of this sort is given to magistrate^y |l 
contended that no kind of forms are tp be observjBd : i 
power is of a dangerous nature, and in a degree gives ari| 
to try titles to land : this court will therefore keep it vm 
striA controul. . The record should therefore set forth < 
complaint duly exhibited according, to the statute. I R 
Laws. 102. and also the regular notice ordained, ibid. 1< 
Nor does'it aj^>ear that any judgment has been given on ' 
ponvictioD. But the most- important fa£^ is totally cmiitt 
the entry by force when the seisin was in Millecman. 1 
ought to have fully appeared, whereas his seisin is sail 
have been " keg since" and might have been discontini 
The statute is particularly framed against forcible ^tx 
the detsuning is only a continuation (^ the crime of focd 
entry; for if the entry, was by right, and peaceably, the 
fendant might be entitled to detain by force. 

Lewis C. J. delivered the opinion of the court. 
IN this cause, a motion is made to quash an indi£bl 
of forcible entry and detainer, found in Rensselaer gov 
on the 24th of March 1801, before John Cumstocky Esqui 
The indi^hnent states that Samuel Millerman « btijgsm 
was lavirfully and peaceably seised, in his demesne as ^fi 
of a dwelling house &c. in Hoasick, and that the defeiljl 
on the 14th of the Sfiuaie month, with strong hand and m 
force, the said messuage and freehold did vnthout law 
tain, and hep out the said Samuel from the said 14th 
March until the day &c. and still doth 8cc, 

The return of the justice, to the writ of certiorari, itj 
the hill of indidment ; the notice served on the defendi 
the warrant to the sheriff* for summoning a jury to inqi 
of the detainer &c. thevirrit of restitution issued^-.i 
there stops. 

There are two substantial and incurable defeda in 

1. It doth not state that the prosecutor was seized ai 
time isfc. not even by implication, and this is necessary li 
stated. Bacon tit. Forcible Entry and Detaineri £• voL S 



ni%S. Cro. Jau 214. Sir Nicholas Poynt's case. Do. 639 

f. it does not state any entry peaceable, or forcible by 
feodant, which must be stated ; for without an entry, it 
soot a|ipear but the party was in possession a sufficient 
gdi of time to justify his detaining by force. Bacon tit. 
iic3ileEn. and Det. E; or vol. 2. 562, 6. Cro. Ja. 19. 20. 
\U — I HawL c. 64. sec. 40. 

¥nm the general discretionary power this court has in 
ese catses, they may set a restitution aside, and award a 
4adtacion (whenever it shall appear that restitution hath 
en iUqplIy awarded) either for insufficiency, or de(e& in 
^iodiAment, or other cause 2Ba. For. Ent. and Det. 
lerG, page 565. 

[am dkcrefore of opinion the motion be granted. It was 
Cide& m this court in the case of Beebe and others^ ad. sctm. 
hi PiTpk^ diat if the indiftment be bad, re-restitution 
i«8t fellow of course; and in that case the indiftmcnt was 
nshed, and re-restitution awarded. But this case is not 
idkia any of the statute provisi(His for costs^ and none are 
CQffcrable. The statute. (1 vol. Rev. laws 104) gives costs 
ily vhen the party indicted traverses the indi£lment and is 
smifted \ and no traverse is returned, or stated in the pre- 

The judgment of the court is, that the indictment and 
noeedings be set aside, and a writ of re-restitution award- 
1^ without costs on eitlier side. 

obcrt Campbell against Timothy Munger and 

THIS was a motion for judgment as in case of nonsuit f6v 
t proceeding to trial. The affidavit, on which it was 
bndedy stated; that issue was joined in January term 
W{ that the cause was duly noticed for the circuit in the 
BKynri that it vras not then tried, and Mras noticed again 
r Ae dtciut in May last, when it was not brought on, 
/ik.was one of the oldest issues on the calendar, and no 
of trial had been given. Van Antwerp re- 
! ^plication, on a deposition made by himself, ad- 
B, iSoa. 

Aaguft 1803* 

If fevcral ac- 
tions, curcing 
on the fame 
point, he no- U'T trial, 
and i>n the 
hearing ,of the 
tir;t, the judge 
direct a non- 
fiiit, exception 
to which is ta- 
ken by the 
cuunfel of the 
plaiutilff he 
Ihall not be li* 
a!»K: to judf> 
luenti at ki 



v^])?^i^y that tlu8 cause, as well as another at the suh of one S)| 
Moo^gomery against the same defen dan ts vere 
tres{]ASs quare clausum frq;itf inwolvvigifaeisaint^ 
of nonfuit ^°d ^""P^ defiencgi that ontbe trial of the wid ca n s e ^ E)j 
for not pro- Montgomery became nonsuit at the ^EeQion of his hoi 
•i^iSf'^''othi!r Mr. Justice Kent, to whicb dkedioo in excepdw i 
Sul^dtofti^ then taken, and, by consent of xbe defendant's attpn 
^^ih^^bid^ ^^ making up of the case was postponed till tlus trc 
thecTcntofthe that it was understood and agreed, between the depOOC 
and the defendant's attorney^ that the decision in one 4if i 
causes ehould be conclusive in the others ;. and thcii 
shortly after die trial, $o as above said to have been hli 
the odier cause, the witnesses for both parties were i| 
jmssad aod that it was very doubtful whether a tnal in i 
present a^liou could have been had. 

Per curiam, delivexad by Livingston, Jusdce* 

This is a motion for a aonsuit, fornot pcooeedi^ 

trial at the last circuit in Saratoga. It appears ttuit i 

as well as another a^ioa of Elijah Mootgomerf » ffgri 

the same defendants, vras noticed lor mal at tkatcto 

that they were aU anions of quare clausum fregit, impoh 

the same questions and the same defence. The aAki 

Montgomery was tried, and the plaintifF nonsuite4» bf 

Te£}:ion of Judge Kent. To his c^inion an excepdM'^ 

taken by the plaintiff's counseL The plainti£P« attM 

upon this, thought it unnecessary, undl the opinion § 

by the Judge could be reviewed by this court, to briiq 

the trial of this causey and he swears that « it was ui 

« stood and agreed-, between Ae defendant's attorney 

« Ium«df, that adecisioa in the cause tried AaM faft < 

<( elusive in the other, and tliat, hereupon, slxxdf 1 

^< the trial, the witnesses of both parties were dis 

Without relying much on the agreement of the i 

wluch was not in writing, the court diink the plahuM 

accounted satisfafiorily for not bringing Ais cnse io 

He noticed it in good faith, and appears to h«re ken 

pared to try it, but finding the opinion of the JiQKigt flg 

ium in another cause embrmmg ike mxot qoeatianti 

dependmg on the same evidence, it would have 1 


I fvofiifldb tlie others uadl the jadlgmeat of this 
Id he had. We think thei«£are, that he ought 
iidalie^ aad that the ooM for not proceediag to 
the event of the first. 

he People against Amaziah Rust. 
■as aa indi^hnent against the defendant, for ex- 
his office, as an attorney of the court of common 
Iflop^mery county. A trial had taken place be- 
Stioes of the peace at the general sessions, the de- 
bond guilty, and sentenced to a fine of one hun^- 

li^loient was in these words. 
Tj county, ss. 

£ it remembered, that at the general sessions of 
be peace of the people of the state of New-York, 
BoUco at the town of Johmtown^ in and for the 
tf of Montgomery, on Saturday the fourteenth 
bmarjr, in the year of our Lord one thousand eight 
ind one, before Abraham Romegn, David Cady, 
rt M'Farlan Esquires, and others, justices oj the 
in the county of Montgomery aforesaid, and also 
to hear and determine divers fdomes, trespasses 
r XQisdemeanors committed and done in the said 
ipon the oath of, &c. good and lawful men of the 
bresaid, then and there sworn and charged to en- 
tfae said people of the said state, for the body of 
)anty, it is presented in manner and form as fol- 
lut is to say, 

Montgomery county, ss. 
rors for the people of the state of New-York, and 
ody of the county of Montgomery, being duly 
I ^aiged upon their oaths, present. That Amaziah 
I of the town of Johnstown, in the said county 
It laWf on the first day of June, in the year of our 
\ dmusand seven hundred and ninety-eight, was, 
iSi and has ever since been, an attorney at law of 
; of GOPUDon pleas in and for the said county of 
WXJ% >sVDd that the said Amaziah Rust, so being one 
iPBDiiet ji^9^e«aidj on the twelfth day of February 


An iDdiAment 
agiinft an at- 
torney, for ex- 
torting more 
than hU legal 
ttci^ mnft Itate 
the fum due, Sc 
the fpeciflc ex- 


/^^^* in the year oif our Lord one thousand seren hundrc 
mnety-nineyobtained a judgment in the said court, in k 
one Ichabod Roberts, plaintiff, against Alexander Ca: 
and John Hamilton, junior, defendants. And the 
aforesaid, upon their oaths aforesaid, do further pi 
That the said Amaziah Rust, being such attorney as 
said, and prosecuting such suit for the said plaintiff, 
attorney, not regarding the statutes and laws in sue 
made and provided, but Unlawfully and extorsively, 
sixth day of May in the year of our Lord one thousanc 
hundred and ninety-nine, at Johnstown aforesaid, 
county aforesaid, did exad, demand, extort and i 
from the said Alexander Campbell, one of the defe 
in the said cause, the sum of Eleven Dollars over am 
tie fees usually paid for such like services f and due in i 
aforesaid^ and more than v/as legally due to the said A* 
Rust and the other officers and ministers of the said coi 
their respeSlive services in the said suit, contrary to the 
in such case made and provided, and against the peace 
said people of the said state, and their dignity. Whei 
the sheriff of the said county of Montgomery is conux 
that he cause the said Amazi^ Rust to come and a 
&c. And afterwards, to wit, at the same general s< 
of the peace of the said people, holden at Johnstown 
said, in and for the county aforesaid, on the said foui 
day of February in the year of our Lord one thousanc 
hundred and one aforesaid, before the aforesaid just 
the said people, and others their fellows aforesaid, c 
the said Amaziah Rust, in his owh proper perso: 
having heard the said indidfment read, the said Amazial 
saith he is not guilty thereof, and concerning thereof I: 
teth himself upon the county, &c. And George M< 
di':tri£l attorney for the county aforesaid, who pro« 
for the said people of the said state in this behalf, dc 
like. Therefore let a jury thereupon come before the j 
of the said people of the said state, at the next gener 
•ions of the peace to be holden at die town of Jdhi 
aforesaid, in and for the said county of Mbntgome 
the fourteenth day of Odober in the year of our Lo 
thousand eight hundred and one aforesaid} of t#eli 


^ Inrfal men of the said county^ each of #honi sh^l ^^^{^* 
kBe»Aif own name or nght, or m trust for him, or in his \.^^.-^^ 
irifi/Si^i^ghti a freehold in lands* messuages or tenements. The People 
«of rents in fee or for life» of the value of sixty pounds l^uft. 
te fewi all reprises, debts, demands or incumbrances ^— ^— ^ 
by whom the truth of the matter may be the 
fawwnt and who have no affinity to the said Ama- 
ibh Rust, tt> recognize upon their oath, if the said Ama- 
Rust be guilty of the premises aforesaid or not, because 
die said George Metcalfe, who prosecutes for the 
said peppie of the said sute, in this behalf, as the said Am»« 
ziab Rnt^ have put themselves upon that jury, the same 
db^t> given as well to the said George Metcalfe, who pro- 
WMes for the said people of the said state, as to the said 
iwaah Rufit. At which next general sessions of the 
(ttcai hfllden at the town of Johnstown aforesaid, in and 
ioi the laid county of Montgomery, on Wednesday the 
fa ateatfh day of Oflober in the year of our Lord one thou- 
Ufi miJQt hmidred and one aforesaid, before Simon Vceder» 
Johi M'Arthur uid John T. Visscher, esquires, and other 
JHlioes of the said people of the said state, in and for the 
coonty oE Montgomery also assigned, and cometh as well 
the nd Geocge Metcalfe, who prosecutes for the said pco- 
pie of the sud state, in this behalf, as the said Amaziah 
Rm^ in his own proper person, and the said jurors of the 
lud juiy, by James Hildreth, esquire, sheriff of the said 
cnmty of Montgomery, for this purpose impannelle<l and 
Co wiL'&c. who being Called come, who being 
tried, and sworn to speak the truth of and upon tlie 
in the indifbnent aforesaid above specified, do say 
wgok 4eir oath, that the said Amaziah Rust is guilty of the 
afi^esaid, in the indidbnent aforesaid above spe- 
m manner and form as by the indi£iment aforesaid 
against him. Whereupon all and singular the 
being seen, and by the court here fully understood, 
itjkooBiidered by the court here, that the said Amaziah 
)ip| pay to the people of the state of New-York, one 
Jhp^bPBi dollars for his fine, by the court here upon him 
J|f^.Jbr and by occasion of the offence and extortion afore^ 
i|ij^ wiMVCof he is ia the &rm aforesaid convi^ed* and 


•"^^^ ^' pkof Aesaii Mtete hU aaii finer, mUtmYiiBftf 
ortfand c o wim tu d t» die cooubob gari of th«' 
covmy, umil die said fine 19 paid. 

n* WW Aow bfouglit before Ae ceitff mr a writ of ei 
Emnoct, fiir the ddeadaitt, tooka tariefy^eicepA 
1st. That !f i^not shewn with tufteienc cevftuiifjf le 
wlkim tlie covrt waa held* The reeo#d tetter the hk 
men€t» have been ««bef(dre Ike justkerrf AesMpafi 
^ Moutgomeffjr albfcaflid!^ and Msigtud to hear and di 
« nrinedWew f eloniee cammitted aaicldone in the sasde 
» ty."* But the aftbf wfaieb their authMiff f» ereateci^ 
M The jfHtkea ff th§fmc9 %( itst imd i$m^kfi^ &e. ; 
ksre power c»hekl the gederat teaeiona. 1 fter. Iaw»^! 
fmc.6. This tribtonldunra^ stated, iaifet soeh a « 
k cKated bjr the staiace. If ie » genefal pmeipfei 
hcie coaaplitdl wiA, that f aetiaalar andwritiet m«Bt te 
e£eaBj fAmnu S KMriLb. 9. c. M. see. 129. TlW 
auftirtfei the aawninioaf emght a» he set out an4 aaui 
ed^ whesea»hei9eit wae not appaMii^ amlaMiBtheAi 
•ak of iniplicati0» alosfe 

Sd There has heeit a mia-iriat^ liwrei^ no mho jo 
fcr die jury to trf v die feeord ie cometh fltc. * and ha 
w heard the said iAdvOmentTCSMl^, die said Amaaiahraak! 
« is not gvihf liiretf/* Thie appliea to the kidiftnafiH^ 
wac totheoAfuce; 

9d. The thne at wMch Ae cornH wae heM ie steoef i 
to indate die indiigknrent.. It is Sbicf to htfre been* oil t 
turdSay; the first meetii^ oaght tO' have been shewft fo^ 
been on a Tuesday, in eonfbrarihljr to-the ail, and €kt 
tinoances from> dienee to dbe' Saaurday, tegBihsAj Mi 
The wordb of die aA are^ '* In the connty of Mbfli^ 
^atthe emrtJhms^ in the aaidf county, the eottPtof-^ 
ai nton pleas on the seeond Tuesdap ofi Tebmary, JaMa 
at CKlober, and the coum of genend' sessione ow tttf 
a* secmd Tuesdays of February and OQdber.* The c^ 
ia << at die genetat* sessions hoiden on Sahtnbf ibe'i 
« teeiidi day of Tebmary.'* Thia ie £rtaf. It i» aeea 
to state that the aesaiooa coottneacedk aodie'dVf eppel 


;;apid were continued to the day,* at which mention-' AI.BANY, 
bre been holden. For this do&rinc die court may 
9 1 D. & £. 316, where, and also in 3 L. Ray. 41, 
in see precedents in point. 

Tliere is not sufEcient certainty as to place. The 
Mnt says « holden o^ 7^^ /^w/i of Johnstown,"f but 
jvds of the a£t are, << at the court-iouse in the said 
' " The court-house is the very spot assigned by the 
indftr what appears, it may not be in Johnstown. It 
\ bne been << in tlie county of Montgomery, at the 
t^ouse of and for the said county, in the town of 
ittown.** 4 Hawk. 77. b. 2. c. 25. sec. 128 is to die 

There is a total want of proper continuances. It 
\ by theac^ that the sessions are to be holden on die 
Tuesday in February and October: the continuance 
noozd is to Wednesday the fourteenth day of Ocbo* 
n which day the venire is made returnable. The day 
lied bj law was Tuesday ; and that, in 1801, was die 
achy and not the fourteenth of the month. It was to 
lesday, the diirtcenth, that die court ought to have 
ondnued, and from thence to the day of trial. 4 
- 170. b. 2. c. 27. sec. 89. Ibid. sec. 92. This is 
fisr a disGDntinuaiicc is never aided by appearance. 
lec. 102. 

. The indi&ment is wholly dcfc£live for want of cer- 
The special matter of the whole fadl must be set 
with such precision, that it can sufficiently appear to 
lit that the indi£lors have not gone upon insufficient 
(C9. 2 Hawk. 320. Nodiing material is to be taken 

■liaeecflaiyonly In cafea where the indi^ment, fic, Itiat a day 
fkepriiod of the origiiul feilions nr jurifditiliun. Therefore un- 
SmiIH of oyer and terniinrr, which are pro hac Tier, if there be 
iMBBt fbtuitl after the firft day, the adj tuntmcn's till the day on 
itlnA^Uncnt wat taken, mufl be (hewn. 2 Hal. 1'. C. 24. Samplon** 
iWMt 410. 80, on an ind!<5lmeut at an adjourned rcR^iouit, the day 
Sad fdBontbcfanmuft he iUted. Hex v. Mlher, a Str. 865. Lut 
Irinibe^oBCWticn the fcffions \% by Itatute for a crrtafn length vif 
hUn which theindidtment is found, as was the cafe here; for l*y 
I ftfth m of Che aA of the legistarure, appointing the Icfliont in 
^.thcv are dirked to be held from the 'lu/rfday. to the m*z'. Sa- 
■d^irre, aeoatlnua'ice rh;*ref jre would be fuperf.uous, becaufe 
llMM*>*« M0i in Uw, but ■» one <!ay. Safnt Andrew* liolb'ini v. 
toiTBipa 1 Salk. 606. The authoritiei from D. and E. and L. 
^mUtmfmt' f-Thc indi^ment g.ic! further, and f .y», •* In and far 

Vif of leaving out the county. 


^L^J^NY, \^ intendment or implication. 2 Hawk. S47. The indiJ 
^^.^.p—.-^ ment is laid under the fee bill, and therefore clearly bad, j 
The People j^ Yisls not charged the faft to have been knowingly or w 
Rnft, fully Jone. These arc tlie words of the statute, 2 Ri 

' Laws N. Y. 88. anil are indispensable. To shew that ti 

very words of the law should be pursued, and that i 
court can not, from any circumstances, or by intendme 
supply the dcfedl, there are two authorities exa£tly in peril 
Jackson and Randall's case, 1 Leach 305. Cox's case, iU 
82. At common law this does not hold good, for /& 
falsely will imply wilfully, but, under a statute, there can 
no such implication. In such cases it is also necessary tl 
the specific charge should be stated: in the present case 
is necessary, not only for the sake of certainty, but becat 
the statute declares the offence to be for taking a great 
reward than it allows " for any of the sendees aforesaid!^ 
the sum taken be not for the services ^* aforesaid^^ it is not; 
ofience, and therefore it should be clearly stated. If i 
indidment be not for an excess in the money exaded I 
those services, it is bad. It should also have stated the pa 
ty aggrieved by the crime, and for this reason; the statu 
is to him remedial, and gives him treble damages. A fu 
ther defeft is, that tlie judgment does not follow thea^ 
The law ordains that the culprit « shall pay to the par 
*« grieved treble damages, and such fine to tlie people 6ti 
« state of New- York, as the court shall tliink proper to ii 
" pose.** The sentence is only for a fine; totally omitti] 
the treble damages to the party grieved, for whose coi 
pensation the adt vi'as principally intended. Under t 
statute for the prevention and punishment of extx)rtion| 
Rev. Laws N. Y. 120, the indictment can as little be m 
poned. An attorney is not an ofllccr witliin that law. i 
officer is an agent for the public, an attorney is only a p 
vate agent. If, however, he is an oiTicer, then it was i 
cessary to lay the oflcncc as done by colour of his ofii 
and for doing his office. This is an obje£lion even at coi 
nu>n law, for there it must be charged colore officiL Bain 
case, 6 Mod. 193. Nor does it appear that die money tl 
taken in the cause ; if it was, it might not have bem i 
costs. The charge tlierefore wants legal piecisioB* T 


^M T. tbe derk of the peace of Cumbcrrand, 1 1 Mod. ai.bany, 
K hihat case it waslatd as here,* and lord Holt held ^^l^ 
itkmBdent. That it must be so, is evident from tliis, 
te itk ttecessaiy to shew how much was due. This is 
101 done, and on that account therefore the indi£iment 
mn M. Lake's case, S Leon. 368. Comyns, Di. ex- 
tntion, C Bayncs's case, 2 Sulk. G80, 1. Holt 512. 517. 
Qamt.Ckifc of Cumberland. 11 Mod. 80, 83. 
- McCcaK^ distrid attorney contra. The first objedion 
flMt has been tadLcn, is to the caption, in omitting after the 
•wd •jtudces" to add ^of the peace.** This exception, 
ith jmomed, cannot be supported. On considering the 
ntfareofthe offence, and how it became cognizable before 
tenaiiuM, die jurisdidion will appear to have been suf- 
dtady set out. Tie clause is descriptive of their sessions 
JUsM^iaii, and that was the only one they were then ex^* 
(Sdnng. What arc now called justices of the peace, as- 
^ped, ftc were originally no more than conservators of 
Aepeioe, and chosen by the people. By the 1 Ed. 3. ch. 
Idtliey were made officers of the crown, but still nothing 
median conservators, as they antecedently were. It was 
not dn the S4th Ed. 3. ch. 1. that they obtained their pow- 
er tD hear and determine, &c. It is from hence that all 
their iessioas power was derived, and independent of that 
aft they had not power to try. 1 Black. Conim. 349, to 
SU, *A8 then the authority of justices does not enable 
fan to hear and determine, &c. and this authority is the 
•iy one by which they have cognizance of the offence in 
fa iiifi£bnent, it comprehends all their sessions power on 
fa point in question, and to state that is fully suificicnt. 
kilBOC necessary to state more than will give juristH£tion 
i4r die oflence. Suppose any other subsequent autliority 
conferred, would it have been incumbent to set 
The woiijSipiof the caption arc, *< assigned to 
determine divers felonies, trespasses and other 
tifgUemeanors-,'* this then is a competent description of 
tilPflMKma before whom the indictment was tried. It states 
iUt htiWi of creation, and the jurisdiction of the particu- 
"^Biji^niill The iiMli^btient ;herc chirged him witb - cxtortian, 
%jfm fal^en^cd >od forced fruzn fucb pcrfuu, wuc ituu bis jiilt lect.*' 


ALBANY, lar ofience to have been deleeatcd. The book referred t 

AuguaiSoj. __ , , , ^ , 

^ ■ V ' Hawk. b. 2. c. 25, sec. 123. page 360, does not make goo 

The People ^g exception. There is no case decided that in an indifl 

Ruft. ment at the sessions it is material to insert assigned to km 

"■"■"""^"""^ the peace. The power is distin£l from that to try> an 

tlicrefore on a case under the latter, the former need nc 

be specified. ' 

In answer to the second objection that the issue was « 
properly joined and therefore a mis-trial it is useless to argw 
lliree precedents (and all others it is presumed are theaaof 
way) sufficiently prove that the due forms of law have bee 
observed. Cro. Cir. Comp. 83. Trem. P. C. 8vo. tra 
lateded. 117. Ibid. 133. 

As to the want of certainty in not setting forth the spedfi 
charge, and the fee due, this general principle may be H 
plied. It is necessary only that the charge contain th 
manner and substance of the fa<St. Hawk. B. 2. ch. U 
sec. 54< to 68. The indi^ment does do all this, MM 
when compared with others will be found to contaun a 
much certainty as is common. It sets forth the persOM 
time, place, object taken, manner, occasion and intent 
But, it is asserted, the party injured is not set forth. Then 
verse of tliis we contend to be the fact. Mention is made o 
the suit, specifying the time when judgment was obtained 
naming the parties, plaintiff and defendants : that Rus 
conducted it as an attorney for the plaintiff and received sc 
much money over and above what was due. This tlien is ; 
sufficient description of the person from whom received, an 
the party aggrieved. The offijnceis stated to bethattheeletei 
doUars were extorsively *< exacted, demanded, extorted am 
<< received over and above his fees." For this an authorit 
may be found in Hawk b 2. c. 25 Sec. 57. Tr 5s there said al 
indiiEtment for extortion, charging tuc baiiin of a hundzo 
with taking colore officii fifty shillings, is good, witbon 
f hewing for what he took it ; especially after verdict. 

Tlie law never can intend that every circumstance, wha 
ther it go to the charge or not, shall be enumerated 
Tho e only are requisite which are connected with tb 
crime 5 such as go to make up the ofFence. Here hrt 
charged with taking more than due. It is not necessarjrti 


I calcuhdcm and state each sum. This may be ALBANY, 

« « . , AngvltxSoj. 

to be shewn to a jury, but not to appear on a re« 

emL AU the cases hi Hawkin's turn on the principle 

SBIidi and kareout indifierent matters, specifying only 

tee dot constitute the offence, and without which the pri^ " 

tan would haTe been innocent. To the same effect is 

^OmDL S91. G. certainty to a general intent is suffi- 

deoL The tune in Rex v. Brunsden, Cro. Car. 438. S. C. 

448. Toagoieral indi£lment against a sheriff's officer charg- 

iai widi luring taken twenty shillings, many exceptions 

«WB tabn, but on this point not one : -1 Sid 91.* the case 

attd torn Hawkins. The court will find the same doctrine * ^** ^* ^^**^*'' 

in il Vin. Abr. 471, 4. 14 Vin. Abr. 363 PI. 8. n. 

Ibv. Cover. Rex v. RefEt 7 Mod. 220. But should it 

m be admitted that the charge is insufficiently made, 

*fata jfxda& it is too late to be insisted on. Every cir- 

cvmstanoe Aat might hayc been fatal on demurrer cannot be 

takm advamage of, after trial and conviction. A verdict 

cwemunydefefls; and particularly those which mu:>thave 

Wtt removed before the party could have been found guilty. 

Rtt T. Cover cited in 4 Bac. Abr. 454. No authority has 

Ima adduced to shew that it is necessary to set forth the 

spcafic charge. There is no book which will warrant it, 

ind it is repugnant to the cases of Rex v. Brunsdcn and 

Rw T. Cover. If they are law the exception is good 

for nodiiiig. Be;>ides the over charge miglit be a stun in 

pon ; fior a regular bill might be made out for 25 dollars, 

■J 30 be received. This will evince that it might be 

nipoi^dble to point out the identical charge in which he was 

pnkjr of ertorting. A? to not btating the due fee, this 

bieter been considered as an immaterial allegation, it is 

oriya circiiniitance attached to the olTence and it is enough 

if- it appear in e\'idence. But though the omission be a 

UtBtf k is cured by the vcrdicl. The case in 3 Leon. 

M^ ia tlie only one that can be found to mauitain the ex- 

ttf&m. It seems however to have turned altogether on 

A^iROids of a particular statute j that of the 25 £d. 3. 

dkrft^flOMde against clergymen who took more than their 

fcrfci jpfing absolution. By looking at the act it will be 

Waito knre required a more than ordinary degree of cer« 


AulnftiSol tsin^ in tlie proceedings, and tbe courty prohoUf 
^ ^, ' themsdves under its influence. That tbe statute deman 
"^^T.^^^ a greater precision than the common law must necessi 
be inferred from its being passed | for had it been dd 
"" wise it never would have been enadied. This is evk 
from the decision in Rex v. Reffit and Potts's Case. 
those a verdi£): was had on a general indidbnentf lik«. 
present, and the court held it well, saying they could 
tben go into the exception. In Rex v. Baines as appevt 
Holt's report of it 512, there was no determination oo 
point now objedled. It was an indictment for taking d 
shillings for a subpccna of only twelve lines. The cb 
was << for divers misdemeanors in the execution of 
<< office in the aitides following, viz.** So that the ofici 
were laid under a videlicit, and a mere recital. Hc^ i 
that itwas not charged for what fees, whether as cleric 
in what capacity, it was alleged to have been done in 
execution of hia office. Powell, one of the judges wbo' 
against the articles, mentioned the case in 3 Leon, but 
other judges took no notice of it, and it does not appeal 
have been at all rested upon. The court will never reqi 
impossibilities. If this objection should prevail, in nu 
instances an attorney could never be iudi£ted« Si^p 
be should refuse a copy of his bill and destroy it. To 
sure the court might order a copy to be produced : 1 
then, no other than the party injured could call upon hi 
so that this would confine the proceedings to the pen 
injured, and lessen the generality of the remedy. Wl 
if the attorney chose to be in contempt ? He would ] 
himself beyond the ordinary course of law. In Res 
Reffit and Rex v. Cover a fee was due for one of the Mi 
ces, it was not set out, and yet the convi&ion debi 
good. For if stated it would not enable the court to tab 
better judgment of die nature of the ofience, it would |[ 
them no greater information than they now have | wl 
every specific service is to be charged, tben what was d 
and tben what was received. The obje&ion is not now ti 
ble : for though it might have been good on demunei^:i 
cured by the vcrdi^, the inference being that all Ae h 
were proved. From hence the condusioa suut be dMl 



f ind dns word is used in the charge. But, if jJ^^gS^JSi. 
ediens be done away, it is still urged that we have ^ v ^ 
it to have been done under colour of his office, and ^* People 
(Doney is not stated to hare been received in the 
m for fees. This latter exception is not true in 
lie iiidi£hnent sets it forth with all convenient, 
Mtwidi all possible certainty. It states the suit, 
ft was Ae attorney for the plaintiff, that being so, 
le presecnting the suit for the plaintiff as such at- 
beenofted from one of the defendants eleven dol- 
le tkm were due in the suit, and more than were 
iaiy and the other officers and ministcrsof the court 
f respective services in the said suit. TWs there- 
ibstantially good 1 Trem. 8vo. Ed. of English trans- 
5. 4 Went. Plead. 1*6.* Colore officii though 
m the piiecedents in one or two report:; may be 
d wiA. If it appear that the party charged with 
ace was acting in his ofTice it is sufficient. In the 
bwidn's reiied on, B. 2,c. 25. S. 57, after enumerate 
tecfanical terms that could not be omitted, it does 
that coilore officii is indispensable. Rex v. Baine's' 
e rihjeciion,*but it wa , not acceded to. The indift- 
Eys diat be was acting as an attorney ; this is fully 
• As to tbe argument that the proceedings are not' 
ider eidlierof the acts of the legislature, it maybe 
efly answered, that it is immaterial whether it be 
tf if good at common law ; to which its conclusion 
die peace &c. cannot be objected. The Mr'hole 
Ae indictment shews the money was taken by co- 
Us office. It is doubted however whether an attor- 
ndi an officer as is intended by the aft of the 7th 
1788. •• For prevention and punishment of extor- 
iltonues are always stated to be officers of the court, 
Bi to be ministerial officers. They are licensed, 
dy and liable to punishment by the court, and there- 
of it. The act mentioning sheriff or other 
: antnisterial or judical ; if then an attorney 
rnlie iodiOment will be good under that law, 
i'Ail- wonb knowingly and wilfully are not in itf 


A.LBAir7, The fee bill 2 Rer. LawB 88 has these terms, k L 

^ ^ * denied but that the indi£lment would have been more 

The People ^jj \^^^ \^ contained the^e words ; yet in Hawk. D. 

Ruil. 25. 8. 96| it is mentioned that if a sUtute contain the t 

'"""""""'"" unlawfully, you must use it, 9r something tantam 

Therefore it is not necessary to use every adjc£Uve th 

may contain. The words of the indi£lment and tha 

the law when compared will be found to be co-signifk 

The question then is whctlier tlie words, taken colle£ki' 

do not sufficiently indicate that the money was recc 

knowingly and wilfully ? whether they do not impcn 

much P This however is a public statute and it is nol 

cessary to recite it. This principle is equally applii 

whetlicr the fa£l charged be prohibited by one or t 

statutes. The averment therefore against the form o£ 

statute is exabundanti and not fatal. Two words are 

said to be omitted, which are essential to the descrq 

of tlie offence of extortion. At common law these, w 

are not required. This is a misdemeanor, not origina 

on any statute; it is the old common law offence: the m 

of tlie statute only shew what would be extortion^ and 

court will please to observe tliat colore officii can aj 

only where no fee is allowed at all ; which is a dL 

ent species of extortion from the present. That the ji 

ment ought to have been for treble damages can be eofi 

ed as an argument against the proceedings, only if the] 

deemed to be on tlie statute, but if held to be at comi 

Law, it cannot prevail. The authority cited on the Of 

site side from Cro. Car. 44*8 is in point to thi8,thoi^k it 

been mistaken by the party by whom used. Anothei 

ference may be made to shew an exception cannot be ta 

for not giving damages. 2 Stra. lO^S.* « quod convi 

*« est," was adjudged enough, because every thuig the* 

•rdains is implied and results from the words } but n 

rests in discretion must be inserted. Nor is it neccM 

though the a£l order fme and imprisonment, that \ 

should be inflidied \ its being a fme only, does not viti 

In General Gordons case, the same thing was detenu 

by this court. 

* It is ruppofed R«x V. I .uckup»U the cafe aUMded ». .it 1I9J6S net J 
ever Mtm perfectly intlogoui. 


IT is no aittkiKk¥ to support the objedion on account ^^^^^» 
mg to say ^ at the court house r and that which is 
pinst-the contmuances is equally untenable. The 
any adjourn to any day within the sessions in the 
■nner as they may make their process returnable ^ 
muty to which, (to the venire,) the continuance is 
Tliat the party aggrieved is not mentioned has al- 
ccn ntvered, and of this the whole indidment is a 
eiB icAMation. If this indi£bnent prevail, deleterious 
■eoees it is said will ensue, and that in^dlments can 
\ fntentd will be a do&rine dangerous to the pro- 
. There is no man, continued the distrid: attorney^ 
wt wishes its well being than myself, but neither its 
its honor require that practices like these should 
The court therefore though called on to 
certainty in this indifiment than any other 
be mfluenced by the considerations suggested : it is 
law necessary, and that is suiEcient, 
BOCt in reply. The court will perceive that the 
may afie& the defendant most seriously : it is not 
e fine he has to pay, but it may go to striking him 
ibUs and depriving him of the means of subsistence. 
mm does not induce him to come here, but, that he 
have die means of support. The indi£lment is not 
ded to have been framed on a bill of Rust's, but 
esrimafe made by the parties who met together, cal- 
1 what he ought to have received, and then, because 
r opinion he had taken too much, they proceed in 
goRNis manner. It perhaps would have been full as 
■1 lor the purposes of justice if they had left the 
Bent to the court of which he is an attcnmey. Two 
of . enors are insisted upon. One goes to the form, 
1^- we ODBtend is materially defed^ive. This, an in«> 
■I of the record and authorities will prove. From 
*.. B. S. c 25. 8. 123, and the cases there cited, 
mend niles may be drawn. That the nature of the 
Hfam^mg^ to be set forth and the audiority to 
ht'OQVt sppsient on the record. It is not stated that 
of the peace for the county. Therefore, 
ikstone, when we look at our law, we 

U . 


ALBAMt^ gttd they mast be 6f justices of the peace for the cc 

' If you pursue the words of the indif^ment the same w: 

precision is continued. Before Abraham &e. and c 

<< justices of the said people In the county of Montgc 

" « aforesaid." There is a wide difference between ju 

• In this the '** ^"^ justices of a county. Suppose a m agistrate 

learned counfci another county to jTo tliere, he would be a iustice i//,' 

Justice of the not of Montgomery, and could not hnvc a right to be ( 

cyTofth/iaw, the scssions of that county. It docs not follow tha 

inV" own°"^^ are the right justices, because stiled justices of the p 

county. The justices of this court are justices of the peopl 

they could not go to Montgomery and hold the scs 

Nor is this cured by its being stated " assigned to 

&c. for if there was a special commission to try pan 

offences, they would under ihi^t be assigned to hesu 

have authority to hear and determine according to theit 

tHissiop^i but not as justices ef the peace of the county^ 

answer has been made to the exception against the ti 

which the court was holden : it sliould have been s 

that thie court was holden on the Tuesday, and then adj 

IkI, this not being done, the omission is material ar 

cured. Rex. v. Warre, str. 698.f As to place tho 

toul failure. The a£b fixing the place at which the sei 

are to be held, does not notice Johnstown: it mentioi 

court-house of the county: the location of that was 

vate law : it ought then to have appeared that die < 

hotise was at Johnstown, that the sessions were held 

'dhd not elsewhere; for, if the sessions were at Johns 

and the court-house in any other town, the court 

'havo no authority. Another idea presents itself respc 

the adjournment; suppose it had gone beyond the vn 

which the Second Tuesday fell, there would donbttes 

want of due continuances, and the contrary does not 4 

now.:^ The c^ourt will recolle£k that this indi^hnen! 

not necessary- for the ends of justice, as the couit o£.^ 

Rust is an attorney, is competent to every purpoi 

which it can be asked. The fee-bill creates the «fi 

and from Jackson and Randall's case, and Cox's cisc 

' t Tbu wa« an Indltftrocnt stated tobchctfl'* ad' MttnEplpfertl 
flead of EpipIiUuUe. And in the Roman calendar there is a Saint Lulp] 
t 'rheactbdngaptibUeact.the Judeti-trt-bovlid'tD-liOtleetBA 
beinf laid wUhln the period ordained. 

\jr r«E STATE OF NEW-YORK. 115 

led, it IS indispensable to pursue the words of die /^^^^^ 

, << knowingly and wilfully." The very diarge must ^A . — ^ 

ifically stated, for it is only in overcharges of a par- '^^^ People 

nature, mentioned by the ad, that the o^encc is R»**- 

bended. The words of the law are, «< tlie sum of ' 

herein before allowed." If then not in one of the 

efore allowed, it is not an offence within the ad. It 

be an overcharge for a letter. Admitting the demand 

unreasonable, it is possible it was not within those 

sued by the fee-bill. If it was, then the convitlion 

Af had, for the court should have gone on to give 

damages.* They are the first objed of the law, as 

ensation to the party aggrieved, the fine alciie is a 

of discretion, the words are " and such fine to the 

t of the state of New- York, as the court &c. shall 

: proper." So by colour of his office, is equally ne- 

f mider the other aft, for the words of the law have 

t a constituent part of the offence; but it is conceived 

tomies are not either ministerial, or judicial officers 

tile meaning of that law. If the proceedings arc to 

n at common law, then it is indispensable that colore 

liioald be expressed. Baines's case is full to this. The 

rr of stating the clinrie, really amounts to nothing. 

!ie extorted « eleven dollars over and above the fees 

lily paid for such like services, and due in the suit 

esaid, and more tlian was legally due to the said Ama- 

Rust and the other officers and ministers of the said 

t, for their respective services in the said suit," over 

we the fees usually paid\ this does not say they were 

d m the cause, but only that tlicy were received from 

ibe defendants. Should, however, the court imply 

ney was received in the cause, it docs not appear to 

Kii'fbr costs: there is not a word to shew it. The 

i^;ht have been for a part of the debt. If the court 

he oommon presumption that he was afting in gooii 

ftbi^h too much has been taken, it will not be sup- 

JMriees; especially as they are stated not to be due, 

e^ddlt not alleged to have bc?n paid. Nay, suppose 

IhAMht bd been long standing, the eleven d-^Ilars 

"Imrivlitobe done without actTmi and trial byjarf, Bumpftedt 
OtCtf. 448. Rfs V. LamfaxKi W. Jonci 379. 


ALBANY, mi^t be for interest. It is possible this extra sum mighl 

Auguft 1803. 

have been received, every word of the indi£lment in thii 
respe& true, and yet the defendant not guilty of extortioB 
He may have paid to another person ^ the sheriff may IwM 
demanded it; a thousand cases might be put to shew dM 
want of precision. The proceedings mention such lUi sm 
vices f without sUting any before. 

Metcalfe. It sets forth that he obtained a judgment. .. 

Emmott. Allowed; but that is not material. In 11 
Mod. the Queen v. clerk of Cumberland, the same chmtnh 
tion was made by Holt. He says << he took ten shilfingi 
« more than his fee, why this may be, for perhaps he U 
<' another demand upon him,'' and the indidment heUoDC 
good* The authority in S Leonard, requiring the sua |^ 
tually due to be specified, is acknowledged by the diidS. 
attorney to be against him. The case in Holt is fiilffir 
the purpose cited; the exceptions being confirmed by m- 
son and settled adjudications, are well taken, and dieJi* 
diClment never can stand. 

Per curiam. Delivered by RadclifF, justice. This ;« s 
case on error, from the sessions in Montgomery. Ik 
plaintifF was indided in the sessions' for extorkouy asasit- 
tomey of the court of common pleas for that county. G»* 
neral errors have been assigned, and a number of objeftioBi 
taken to the indictment and to the record, some of wUift 
are objedions of form, and others of substance. 

For the purpose of the opinion we shall give, it yfSi k 
sufficient to state the part of the uidiQment on which it i 
founded, and wUch we deem to be defedlive in subsbpOB^ 
The indidmcmt states, that he was an attorney of ^ 
court, &c. and that on the 12th of February I79d» be ob- 
tained a judgment in favor of one Ichabod Roberts y*.Ato 
ander Campbell and John Hamilton, jun. and thatl(^dl' 
extort and receive from the said Alexander, elevm 4Jt^- 
over and aiove the fees usually paid Jar such iiie servkttk ^ 
due in the suit aforesaid^ and mare than nvas legally Jut i» H^ 
and the other officers and ministers of the said court, Jm M 
respeBive services in the said suit^ isfc* 

The hCt thus charged may be true, and the plaintiff 10^ 
still be innocent of the offence. The indi£bnent jcjcs <> 



if how much was received en its own account and how 
i&ir the cfficrrs and membersof the court. It may be 
ke excess on which the charge of extortion depended, 
ccasioned by the charges made by the other officers, 
worporated bto his bill, as for sheriffs feesj ckrVs and 
ifUj &c. In these respeds the indictment is not suf- 
idy particular, the ofience is not alleged with sufficient 
inon and certainty; therefore, without examining the 
t obje cti o n s, we are of opinion that for thvs cause the 
[BDcat ought to be reversed. 

Lewis, chief justice, absent. 

David Combs against Peter Wyckoff. 
HE present action was instituted to recover damages 
m delivering a boat alleged to have been purchased by 
(Uo&ff. Woods moved to set aside the report of the 
ivees on an affidavit made by the attorney in the cause 
ting these grounds-, that die witnesses of the defendant 
re seafuing men, and that there had been an express 
semenc between the deponent and the plaintiirs attorney, 
the referees should not make up tlieir report until the 
imony on the part of the defendant could be obtained ; 
notwithstanding this agreement, the referees had rc- 
ted withoot waiting for the evidence on which the dc- 
bxil relied; that a sum had been allowed the plaintiff for 
IS, said to have been sustained by not being enabled to 
f a quantity of wood to New-York, the' it was proved 
even admitted, that a part of the wood was previously 
by the plaindfF, and the residue might have been con- 
d ID New-Tork had he thought fit; diat the referees 
! nominated by the deponent without the knowledge of 
leCeodant, betni'een whom and one of them a quarrel 
taken place, which was not made up; that by the next 
■t the defendant hoped to be able to procure testimony 
di would at least diminish the damages against him. 
kkmer contra read his own deposition setting fordi that 
fid not recoiled the agreement above mentioned, and 
I It least it was not in writing*, that die referees mot 
enl dmesy and were as often adjourned at the request oi 
fa attorney under the pretence of not being 


Ki puty to a 
fuii referred, 
cannot produce 
the time of 
hearing.a judge 
at chunbcrs In 
vacation, or 
the court, if 
fetting, win 
ttay proceed- 
ings. Defend* 
ant*s attorney 
having nomi- 
nated refereeHa 
and the party 
not having od« 
jcdted, he can- 
not on that 
ground, move 
to fct afide a 


ALMAVTf vUetDprociiwdieattesdame^Us vkoesses; d^ 

^^'^^^t,^ latt sneeting the Jefendaot's attorney deciiflcd samsEung «ps 

Wfckaff 2im| gQ £^ &om any eamhy existing between Ae defiendaH 

Ccmbs. and .one of liis se£erees» the very party named as hmf 

■ miimcal was lus special bail. =" 

Per curiam. Deliveced by Liviogaton justice. Hic Ath 

fendant moves *o set aside die report of referees, aUegai|^: 

1. That it was agreed by the plaintiff's attorney, that itf 
Teport should be made until the defendant's witnesses oovtl 
be procured, which was afterwards disregarded. -} 

This agreement not being in writing, and being deniel 
by the plaintiff *s attorney must be. laid out of sight. Ik 
court cannot, too frequently inculcate the necessity of i 
cing to writing all agreements between gentlemen of l 
^r. Many jnistakes^rauch misunderstanding and 
versy will by this measure be avoided. In tlie present ( 
It appears that two months elapsed before the report wB 
made, which was allowing sufficient time for the defendflV 
to produce his witnesses. If they were abroad, he i 
have applied to the court, (for a term intervened 
the appointment and report of the referees) for an order oil* 
them not to proceed for a reasonable time, which wodtiT 
have been granted, or a judge at his chambers would havfr 
ordered the proceedings to stay until application should be 
made to the court. 

2. Another object ion is, that a sum was allowed, whiA 
was not proved to be due. Of tliis allegation there u to 
satisfadlory proof and therefore we can take no notice of 5t 

8. A tliird obje£lion is, an enmity between the defendltt 
and one of the referees. 

This reference it is to be observed viras nominated by ^ 
defendant's attorney, and although he might have beijif 
ignorant of the quarrel spoken of, the defendant by'tt^ 
acquiescence in the appointment and submitting the caMI 
to. his decision, cannot now avail himself of this chti 
lenge. He should have applied to the court to remove ham 
and appoint another. It is somewhat remarkable hpi^ 
ever that the referee who is repugnant or hostile to die 
defendant, should be his special bail in this very cause. \ 



t defendant states that << he can now introduce 
reto diminish at least the damages reported." This 
ose to say the least. Why was not this testimony 
before ? and to what extent will the damages be re- 
it be offered now ? Will it justify a diminution of 
lollar or less ? If so << dc minimis non curat lex,^ 
e discovery had been made even prior to the report 
be no reason for disturbing it. Let the defendant 
hing by his motion and pay the costs of this appii- 

The P'.'ople against Harry Croswell. 

defendant had been convicted before his honor 
rice Lewis at the last circuit, held in and for the 
S Columbia^ on an indi£Vn]ent for a libel on the 
It of the United States- The proceedings were ori- 
commenccd before the justices in the general sessi- 
m whence they were removed into this court, and 
own to the circuit in the usual manner. On his 
on recognizances were taken for his appearance the 

of term to receive judgment, but his counsel cort- 

the chief justice to have totally misdire£led the 
rere rather at a loss how to bring the matter before 
iirt. It was resolved by the bench that on the cause 
fought up and seni clown to the circuit, die suit, 
in its nature a criminal prosecution, took the course 
\i action ; thut within the first four days of the tcnn 

the conviAion, o motion in arrest of judgment 
e made^ or the p<irtic3 may make a case, and bring 
ittg fully before the court. This measure tliey ad- 
is being in the present instance more explicit, and 
: adciptedi they gave day till the fourth day of next 
ikuig recognizances from the defendant and two^ ^e appearance, himself in 500 dollars^ his 
kin 250 dollars each. 

Luslicr against Walton. 
R VBCTEN. This is a motion for a rule to refer. 
Uavit Mtes there are long accounts to adjust 
vgtt. i inint oppose it. The notice does not mention 

If an indA- 

mcnt be re- 
mo\cd from 
the fdDom into 
thUcmiit, any 
be takrntothe 
cliar^c oi* tlic 
jiu'^tf bTirak- 
iiH; J cafe anil 
brinpiiig itbe- 
f . n- thf cnuft, 
in thi- fame 
n»ann«T a« in 
civil proceed- 

Notice to refer 
mull com am 
the namci of 
referee*. Mif- 




Auguft ito3. 

of m rule, or 
Ignorance of a 
fkte deccnni- 
nation may be 
offered as tz- 
cufcs for not 
noticing for 
the firft day of 
term. If the 
ground of op- 
pofinff a rei'er- 
cnce be tUat a 
point of law 
will arife, it 
ought to be 
ftateil ezprelT- 
ly wluu and 
that it it •* at 
advifed by 

• Ants. 7. 

the name of the referees, from Bedle v* Willet* dec 
last teim this is necessary. 

Per curiam. If the cause contains long accounts 
cannot try it, 

Spencer observed to the court that a cause could no 
referred at the circuit ; but from the case cited, the a] 
cation might be renewed the next non-enumerated day. 

Emmott. If die court say tliey will hear it, I shall n 

Per curiam. The omission must be accounted for, 
therefore we cannot say we will hear it. All notices 1 
be for the first day, if not, an excuse must be offered, 
a party's mis-apprehcndmg a rule has frequently been 
ceivcd as an excuse. The decision quoted has altera 
former pra£lice, and if the party will swear he did 
know it, he may apply again. 

Emmott waiving his objc£^ion as to the omis^on oi 

Van Vecten read his affidavit and another in sq 
of it. 

Emmott opposed the rule on a deposition by the pU 
stating that an account between him and the defendani 
been long ago settled, on which there appeared a ce 
ballance due, for which the present adion was bioi 
and that he believed the matter in dispute involved p 
of law. 

Per curiam. From the plaintifTs affidavit it does i|C 
pear there was a final closure of accounts, so as to e 
to oppose the rule ; besides, there arc two affidavits ag 
him ; the weight of evidence must therefore prepott^ 
and his single affidavit must give way. His second ,gR 
for resisting the application is, that on the exaitaiq 
questions of hw will arise. This if properly statedj, yf 
have been a good reason for denying the rule ; but of 
point the affidavit is defe£live : it states his informatMX 
belief that it will arise -, it ought to have said that *f 
<< advised by his counsel," and even then to have set. 
the particular and specific point, to satisf j us ^ia( i 
exist. For these reasons therefore^ as the fim tak^ 



t waifcdy die phmtiffs' affidtfrk is insuflkient and 
idant musLtake his rule. 

Lewis, chief justicei abseat. 

a on Ihc demise of Joseph Winter, against 
[artin M'Evoy, tenant in possession. 
IDS applied to vacate the judgment entered against 
eA C)e£kory and to admit Henry Masterton to be 
iftodantj on such terms as the court might be pleas^ 

. Ae affidavit of Masterton, it appeared, that the suit 
ItBted to recover possession of forty-five acres of 
he county of West Chester, to which he claimed 
hat a real and substantial defence to make : that, on 
day of July last, the deponent discovered in the 
ooDunon rules of this court, that a rale for judg- 
;ainit die casual ejcAor had been entered in the 
use, on the i^th day of May preceding; that the 
■ possession never informed die deponent of any 
on in the said suit having been served upon him, 
gtime after the rule for judgment had been enter- 
t the deponent believed the knowledge of it was 
1 bom Um, owing to a good understanding between 
9r of die plaintiff, and the tenant in possession, to 
iJ^ ddence being made, which the lessor of the' 
wi^ previous to the commencement of the above 
1 by die deponent he would make, and that on 
e finds no record has been filed in the above cause. 
fii6l8 and ^dlegations he contended were tantamount 
lilm assertion of title, that it was impossible 
Me to have a real and substantial defence. That 
MNddbe lost by the plaintiflF as a trial might be had 
icnit in September. That the question would then 
tUii up wbedier the deponent or Winter was really 


lA order to bo 
admhted it a 
defendant in 
eje^menti a 
privitx muftBo 
the applicant 
and tenant. It 
b not enougli 
for the panf 
applying to 
title and hu m 
real and fal>* 

fft lf ITT 

There does not appear to be any rda- 
htfJA'tfasfwrton aitid the tenant, 
tiu 'PiMiaps the affidavit does not go quite far 
b^JM^ that expressly, but surely it may weU be 




r AI.PANt, 
Aagiilt 1803. 

The Tudden in- 
difpofition of 
couiifd and at- 
torney, is an 
cxcufc for not 
proceeding to 
trial, but will 
not exempt 
from coHs. 

PndUce ai to 

Emmott contra* The deponent does not swear to anj 
title, he only says he has a claim : he does not Lvear dai 
he is the landlord 5 not even that there is a privity betwcn 
him and the tenant. If then there is no title, if he is niM 
landlord, and if there is no privity, how can he be made 1 
defendant ? If a man may thus come in and vacate a judg- 
ment, without an ji complaint from the tenant, tliere is not 
one, which may not he set aside. There is nothing stated 
whicli shews that notice of the ejed^ment ought to hm 
been given to the deponent. The tenant is not oblige! H 
hunt out all per.ons who have claims, he can only bei|> 
peAed to communicate to his privies. •:|| 

Per curiam. The party can take nothing by his nwili 
Lewi:, cliicf justice, abaotlb^v, 

Jackson, on the demise of Rodman, againslLif^ 
Adam Brown, .. =~ 

SPENCER moved for judgment, as in case ofnoft9«[| 
for not proceeding to trial. The notice was served on ilmlfM 
day of term, for argument on this. The affidavit zcconf0ali 
for its not being noticed for die first day, by stating thatll 
had been delivered, on the twenty-sixth of July, to a pcMi 
who was then about leaving Hudson for Albany, but ivilt 
had either lo^t it, or left it behind with some papers of Vk 

VanVecten opposed the motion, by an affidavit of #* 
indisposition of both attorney and counsel in the caiMi 
wjien too late to employ odier^. . , 

Tlie cause was countermanded, but, after the dMA 
began. ^ 

Per curiam. The excuse is sufficient to prevent gtwlilll 
die judgment applied for, but the plaintiff must pay'djf^ 
costs of not proceeding to trial. It was a misfortmi^jl: 
is true, that the parties should have been affli£led witk «idt* 
ness, but it is a misfortune that ought not to fall on tiM^4^ 
fendant. ;•; 

Lewi?, chief jiistjce, 

Alexander against Esten,, Administrator. 
THE court ruled that it was the practice to 



el^e£U. specified in his noticci and the pre:cnt be- 
itt aside an execution, they would not allow it to be 
ed to the j udgment. 

Lewis, chief justice, absent. 

.on, on the demise of Elkanah Watson, 
against John Marsh. 

WCX)DS moved, on tlie common affidavit, for judg- 
as IB ca«c of nonsuit for not pioceeding to trial. 
BBOCt redi vted it by a counter affidavit, setting fortli 
k cause WIS duly noticed for Cayuga county, but, 
ajrs before the trial, die defendant iierved a notioe to 
3e papers whicli were in Albany, 
nott stated some circumstances tending to shew 
I pca&ice, but nothing of tliat sort appeared by the 

Augult x8oj. 

Nine dayt no- 
licc ii enough 
in Ciyuga to 
produce ijaprn 
fa Albany, ito 
mUiM UUluit. 

caniin. What is the distance from the county 

ia Cayuga, to Albany ? 

BWtt One hundred and eighty miles* 

cmiam. The plaintiff must stipulate and pay costs. 

is BO proof of want of time. 

Lewis, chief justice, absent. 

amuel B. Webb against Thomas Wilkie. 

IS was an action on a sealed note, dated on the thirti- Whcnerer a 

Ae mondi. The declaration stated the date to be the mradl hVs de. 

lA. Emmot on the first day of term had ^ obtained Sd^Si ban 

to amend the declaration by striking out the word »? taction to 

lenth" and inserting the word " thirtieth." No per- 

pearing to oj^ose, the motion was granted of course 

(fcoat imposing terms. 

Vccten now applied to vacate that rule, and that it 

Ml that the amendment be on the usual terms. This 

was accessaryy because the plea of non est factum, 

pais shea proper, might now be highly the reverse. 

Mt was always disposed to set things right, if it lay 

r flMWr They never could mean that tlie plaintiff, 

id been guilty of a. mistake in his declaration, should 

kntf %^«aMDd that J and the defendant be held to aplea 

ijl^tenpflicable. Be^idesy there was ample time 


A^^^oi ^ ^^^^ * P'^ before the next circuit, and surely the coi 

V^i'^^'^^ will not shutout the defendant from pleading de noi 

^^^^ when his first plea was the result of the plaintiflTs mislal 

Wilkk. ment. 

Per curiam. Let the former rule be vacated, and A 
plaintifF amend on the usual terms*. 

William Gilliland against Joseph MorrelL 
An imgttiari. THE affidavit that was read stated, that in OOober, 180S 

tici arc waived 

bva def.odant a motion was made on the part of the defendant for ivdi 

It ktf aimemr on * ^ 

trial. Onjadf^ ment, as. in a case of nonsuit ; which, no one appeari^ 

rak Bifi^ tSc^ ^ oppose, was granted as of course. The judgment, th 

^J*2^*"*. taken, was, in the same term, set aside by the plainti^fM 

dcQiaiuiof Kit the usual terms of ^stipulating: to try the next circuit. i> 

coftt with a . - - *^ .. • 1 rrn. . T 

coffofhiM paying the costs of not proceeding to trial. The stipdi 

and if no*pt?d' ^ion was entered into, the costs taxed, and demanded^ bl 

inay'rmCT' *** ™* P''^» *"* "^^ continued unsatisfied ; that thereftn 

bit judgment ; and as the defendant's only witness could not be foondf li 

it he do not fo, ,. , , t i • ir v t ... 

the plaintiff did not attend by himself or attorney at the last cunc«it« 

win be regular ... 
In noticing for Apni, 

^'^ On these facts duly sworn to, and on an afiidavitof tk 

defendant diat he had a good and substantial defence, u i» 

formed by lus counsel, which he verily believed to be tnw ; 

that on the merits, the plaintiff could not recover, and tfan 

a material witness was wanting, without whose testimoB] 

V the defendant couM not proceed to trial, but whidi kfl 

could procure by the next circuit. 

Van Vcden moved to set aside the verdid, and gimt 1 

new trials 

Woodworth contra, produced a certificate from die derl 

of the circuit court, that the trial of the above cause wpi 

had on the eighth day of April last, when Mr. Van Vectef 

appeared for Mr. Fisk, attorney for the defendant. Ol 

this he contended every ilrregularity was waived, and dM 

verdict must stand, otherwise the chance of a verdict mi^ 

be taken at any time after a little advantage obtained, wlU 

in case of a want of saccesst a motkm toset it aside luml 

cd to. • V 

Per curiam. This is an application to set aside a verdiet 

There axe many fects stated. Withrcap^toditciitrjBsi 



akfiir letdng aside the jndgmenty as in case of non^ 
there may be some doubt : The clerk finds no rule en^ 
y but as there was a stipulation filed, the court take it 
anted that it iK*as on the usual terms. It is neces- 
however, that in all cases of stipulationi there should 
iemand of costs ; this demand should be accompanied 
icopy of the rule, and if the costs be not paid in twenty 
lAer, Aen the party may enter up judgment of non- 
aad tab die effect of his application. The defendant 
■fttfaitk did present a bill of costs, but does not say 
raUia copy of the rule annexed ; this, too, was on 
IM^ and not on the party, or his attorney. The de« 
i^ there fo re, has not been correct in his proceedings, 
4tt demand was not regular, the plaintiff was regular 
idng Us cause for last April, and bringing it on to 
^tti abutting that in so doing he had been guilty of 
legvfaik^i the defendant's appearing on the trial is a 
rirofsDadvantageto which he might otherwise hare 
flBCitled. It was decided last term, in the case of 
T. Rodelicks and Shivers,* that if a paity appear, he 
a dl irtegidarity. But it has been shewn there was 
Djf and if there was, the conduct of the defendant 
sfaoed Ae case in the same situation as if there was 
The plainciff, therefore, is regular. Against this is 
m affidatitof merits : on such an affidavit the court 
lot set aside a regular verdict. There is no irregu* 
\ the defendant appeared, and has shewn no excuse 
K did not defend \ for if his witness (ould not have 
Acainedy the court, on the common affidavit, would 
Moff ^ triaL The defendant must take nothing by 


Aaguft i8i^ 

Lewis, chief justice^ absent. 

Cogswell against Evert Vanderbergh. 
ODWORTH, on the part of the defendant, moved to 
b^die deCauk, and all subsequent proceedings on two 
iMb made Vy the defendant and another person, sUt- 
tac^aa ad respondendum in this suit, was duly issu<- 
lavnd m;.tlK month of November last -, that in Fe- 
[fribvi^gi die defendant called on the plaintiffj and 


• Ante 73- 

Wlien proceed* 
in[>s have been 
rqrular, a mere 
riu is not fuf- 
licient ground 
to fet them a* 
fide. In fuch a 
cafe, if there 
haa been a mif- 
takeon which 




Ibe judgment 
had been U- 
ken, the de- 
fendant will be 
relieved on'y 
on eofts and 

offered to pay part of the debt, if he Could have timeCor til 
residue ; that this being agreed to, the defendant paid 80| 
dollars, and the plaintiff promised to stay all proceediqgf . 
the defendant's affidavit further shewed that he had Sn 
quently called on the plaintiff to settle the residue, but Am 
he was either from home, or engaged in company, an^ 
had, notwithstanding his agrecmcat to stop the suit, goij 
on, obtained a judgment by default, and taken out execft 
tion ; diat the defendant, relying on the agreement, hk 
not employed any attorney, and the execution was formtfi 
dian was due, credit not having been given tlie defend^ 
for an account which he had against the plain tiflF. 11) 
affidavit, Woodworth said, in addition to its being sudfl 
ed by the deposition of another person, carried intenudniji 
dence of its truth. It was not natural to suppose that mM 
should pay, after an arrest, so large a sum, on accoint^ 
tlie debt, under no kind of agreement, but leave hitti|| 
open to an execution for tlie residue, the very next momaji 
He therefore hoped tlie court would set aside the ^iJMJIj 
proceedii^ as being in violation of every principle of gDoi 

Van Antwerp contra, read a long afUdavit by the pbdntill 
denyiag the receipt of the money on any condition, aoi 
swearing to the justness of lus execution : But the dam 
rested on his own testimony alone. 

Per curiam. This is an application to set aside the jii% 
ment, and all enbseqiieac proceedings. The affidavit! an 
very lengthy, and so far as they rcktbe to meritSgi vm gt 
ihcm totally out of view, for on that point they canopt. h 
received, tl^ pkiintiff having been perfectly rq^uhiy IB 
cording to the rules of this court. But the motion is Jpi|| 
on the f uither gioand of surprise. To this efiect the di 
fendant has sworn, and his testimony is corroboratod X^ 
that of another witness to the same efie£t. On tfat ^A 
hand mary be opposed the positive denial of theplantfM 
the weight of testimony be to decide, it will be ioami^ 
the defendant. There has at least been a mi 
in this business. The defendant thought he 
ney that die «ttit might not go on, and therefore did^flb 
make uiy defence. It is evident some great mutikf^ 



!} t2ie plaiiitiiFy however, is perfe£Uy regular, jJ^^Jj^JSf*^ 

Kcach sitie may have thought himself right| the judg- \^f^^y^^^ 

rand proceedings must be set aside on payment of Cogfwdl 

I, pleading issuably, and taking notice of trial for the Vandcrbergb. 

circuit. — — -^ 

rtin Hoflfinan and James Seton, against Wil- 
liam S. Smith. 

mis was an action by the second indorseei against the 
erof a promissory note, dated the eleventh June, 1795, 
ihfe one year after date. 

he fids were briefly these ; the note was originally 
Me to one Thomas Cooper, who indorsed it to Nicho- 
afffaun. When it fell due, Smith being unable to 
it up, gave Nicholas Hoffman a bill of exchange on 
nm W. Burrows, of Philadelphia, for the amount, 
k^ wbea paid, was to be in satisfaction. In the mean 
^ k was agreed by ail parties, that the note should be 
flt Ae hands of Nicholas Hoffman, Cooper consenting 
main liable, if the bill of exchange was not paid. After 
tnnsacdons, Nicholas Hoffman being largely indebt- 
» die fUntifis, indorsed the note over to them on ac- 
It TheVnll of exchange was presented, and accepted, 
HOC paid. The plaintifEs then commenced their a£lion 
m Ae defendant on his note. He pleaded the general 
ijnyiiient^ and gave notice of special matter. 
t Ae trials the hand-writing of the different parties be* 
^Mrttpalj die phintiffs there rested their cause. 
ki defendant then read in evidence a copy of a bill in 
Bfeiyy filed by himself against the defendants, for a dis- 
ly attd isijanAion, setting forth the preceding facts, 

a want of notice of the non-payment of the 
I, in consequence of which he became dis- 
)eif and Nicholas Hoffman responsible to him for the 
itj wluch he was entitled to set off against die note ; 
ihf indonedafter due, it was liable to all the equities 

agamst die indorser.* The defendant also read 
such part of die answer of die plaindfis to die 
Ati^ MnB, Aed S P«ft £; Si- Browa v. D^tU, Ibid. Beck r. 

Want of fundfl 
belonging to 
the drawer cx- 
cufcfi notice of 
as well when 
the bill U ac« 
cepteJ^ when 
not. A profef- 
fional man, not 
employed by a 
party, is a good 
wicncfi againlt 

If a defendant 
read part of an 
anfwer of the 
plaintiif to a 
bill of di(coTe« 
ry, query whe* 
thcr the whole 
is mtde evi- 




Asgnft iSo3. 

abore bill^ as confessed the. facts first stated, and wa 
notice i on which he rested his cause, and moved for a 
siut, the plaintiffs not having proved notice to Iiim g 
non-payment of the bill. 

The plaintiffs counsel then proponed reading the n 
of the answer, which, on the part of the defendant, wi 
jected to, but over-ruled. On its being read, .it apj 
that Burrows had no funds in his hands at the time dii 
with many others, was drawn^ but that he had ace 
them to support the credit of the defendant, on his eng 
to provide for their due payment. That the defe 
had confessed this, and acknowledged he knew the bil 
dishonored, as he had been unable to furnish the mea 
had promised. The answer further stated, that Bu 
paid his acceptances, lent to the defendant till he w 
tally ruined, in. consequence of which he became, and 
dnues whoUy insolvent, having, however, large den 
against the defendant still unpaid. The plaindfit p 
also, by the evidence of Mr. Troup, who had been p 
sionally employed and paid by Burrows, against the ii 
ant, who had never retained any one, that the debt 
from the defendant to Burrows now exceeded 2* 

The judge charged, that the acceptance of the hU 
prima facie evidence of funds in the hands of the aoc« 
and made it incumbent on the plaintiff to shew the ws 
them, which, in his opinion, had been done. That : 
jury should concur with him, they ought to find fo 
plaintiffs, but if they thought the want of funds not 
ciently established, they should find for the defendani 

The jury brought in their verdict for the plaindC' 

The defendant moved for a new trial, and it wa 
consent of the plaintiff's counsel, submitted to the coi 
the points raised by the defendant, which were^ 

1st. That after acceptance of a bill of exchange» 1 
of non-payment is, under any circiunstancesy necesaav] 
the want of it discharges the drawer. 

2d. That the want of funds could not, after acc^ 
excuse the not giving notice of non-payment )* an^ 

• SeeBickerdflKCV.BolciiiaD9tD.acB.4Xl|4XOkW&BtblMtli<U 
hj Bulln*, J. ^ 



■I of fimda was not sufficiently proved in this 
the tesdmony ofMr. Troup, and that part of the 
a diancerf which related to the deficiency of funds, 
ipnpedy receired, and ought to have been ex- 

Mriam. Delivered hj Thompson, justice. This 
ttit on a ptomisory note, dated eleventh of June, 
pble one year after date, and brought by the s^ 
Inwe against the maker. 

Dole being admitted upon the trial, the defendant 
I CfiAence, a bill and answer in chancery, between 
ieSy in which answer the plaintiffs admitted, that 
mthnt made the note aforesaid payable to Hiomas 
and delivered it to Nicholas Hoffman j that 
was payable, the defendant made and delivered to 
iHoSnian, a bill of exchange for the amount of it, 
nSm W. Burrows, of Philadelphia, payable in GO 
AiA bin, if paid, was to be a discharge of the note, 
t adierwise the note was to stand good ; that the 
8 accepted, but when presented for payment, 
fiised, the said persons having become insol- 
rhe defendant then moved for a nonsuit, on the 
dm die plaintiffs had not given evidence of noHce to 
endan of non-payment of the bill. 
phintift then proved by Mr. Troup (who was ob- 
D as a witness, because the communications from 
ndant to him, were made in confidence, though not 
la r ac tef of attorney or counsel for him, and the ob- 
sver-nded) that on a settlement between the de- 
asd Mr. Burrows, he owed the latter 48,000 dol- 
' which the defendant gave a bond the fourth of Oc- 
796 ; that he understood explicitly from both the 
at and Burrows, that the above balance arose from 
pndy and responsibilities incurred, by Burrows, for 
fpdxatf in order to support his credit, and from mo- 
tri^ndshipf under an express agreement by the dc- 
j tbat iunds should be provided by him, but that 
I fluids, were provided; that these were the only 
Iqitt between Burrows and the defendant. It was 
99^ U^ yik^ the bill was not paid, Thomas 

Auguft ztos* 
V— ^-^ 
HofAnan «Ad 
Seton T. 



Auguft 1803* 




St. Qnintin. 
I B. & P. 65a. 

4D5i£. 759. 

Cooper, the original payee, called on the * defendai' 
•the defendant said he Juiew the bill had not been pa 
that when the bill became payable. Burrows had ta 
to take it up» and that he, the defendant, could n 
vide the payee with any. 

The jury found a verdict for the plaintifF, and 
fendant now moves for a new trial, cmi the fol 

That after acceptance of the bill, notice of non«p 
was requisite to hold the drawer. 

That if want of funds excused ; here was no sv 
evidence of it, and that the testimony of Mr. Troi 
inadmissible ; that the defendant was entitled to rea 
parts of the plaintiifs answer in chancery, as he 
without nuiking the whole answer evidence. 

The notice to the drawer of non payment, altho 
general requisite, was not necessary in this case, 1 
the drawer had no efie£ls in the hands of the drawee 
therefore he would receive no injury for want of 
The reason for notice failing, the necessity of givi 
superseded. The acceptance by the drawer made 
teration in the rule. Notice of non payment was 1 
cessary because of no use to the drawer. The { 
the event of funds was conclusive, it arose from the n 
confession of the defendant himself. Nor was th 
weight in the objedlion to the competency of Mr. ' 
testimony, his information being received in the ch 
of a fnend, and not in that of counsel. The want 
in the hands of Mr. BurroVs, was sufficiently pre 
dependant of any fa&s contained in tlie plaintiff's 
to the defendant's bill in chancery. 

It is therefore unnecessary to say, whether the 
answer ought to have been received as evidence or 1 


Joseph Hawkins and others, against S. Bi^ 
VAN VECTEN moved for a rule, against the rcf 
this siut, to shew cause, why an attachment shouldn 
against them for not making up their report, or th 
be ordered so to do. The aiEdavit on which theagp! 
partofOie'^ was founded set (orth that at the ni«etizigof ^^.|| 

On a refereoce 
if a receipt gtv- 
en afeer the 
rule made, be 
•flered in eri- 
deaee on tlie 



eoMuisel of the; plaintiffs^ had opened their case, 
cd the nature of their demand, the counsel for the 
of presented a plea to the referees on receipt of 
hey refused to hear any testimony on the part of 
ildfsy and neither reported any thing due to them, 
they make any report in faror of the defendant. 
oer contra, resisted the application and submitted to 
It a special statement of the matter in the nature of 
t The fa£ts as there stated were, that after the 
uAEng of the referees, &c. they called on the 
! of die plaintiffs to specify his client's demand, 
tnxpting the question of interest, was originally 
i-by the defendant's counsel to amount to about 
DarSy but that there was a defence, which would 
te Ae necessity of proving the exa£t sum claimed, 
itmii^t be ascertained by the books and bills before 
iicei; that the defence was payment of 1469 dol- 
vD satisfaction, for proof of which a receipt was 
in evidence and an acknowledgment, under the 
At defendant's attorney, admitting certain things 
he subscribing witness would have sworn to, if 
-That the plaintiffs objected to the admission of 
(unany, bat before the question of admissibility could 
ied, the defendant produced the following plea. 
now at this day, that is to say on the 19th day of 
1809, before George Hale, Samuel Edmonds and 
eO Hotchkis referees herein appointed, it being the 
day and time of their meeting hereon and upon 
attters referred to them in the above cause, comes 
id John, by Erastus Root his counsel, and says that 
id Joseph, &c. ought not further to maintain their 
Akm against him the said John, because, he says, 
Aeir the 14th day of May last past, from which day, 
Pat given to the said referees to make their report 
lie first Monday in August next before the justices 
rsopreme court, &c. at the city-hall of the city of 
ly^aforeKiid, the aforesaid aflion was continued, to 
}Mk die 98di day of May in the year aforesaid at the 
t^MbuSf in the county of Albany aforesaid, the 
iihi'fil'lpiytd'the said Joseph, &c. the sum of one 


Auguft 1803. 

fend ant, and 
objcdtcd toby 
the plaintiff, 
the special 
matter and 
UAi should 
not be returned 
to the court, 
but the referees 
should admit 
it and make 
the report up- 
on it that the 
party aggrieved 
may bring it 
fully before the 
court. Query 
if a special re- 
turn of fadts 
without a 
decision be, in 
any ca»e a re- 
port within the 
meaning of 
the rule. 





« thoitoaiid four hundred and aUty nine dcUan in fid 
« tisfadHon, anddisduurgeof all andaingularthe matlen 
M things and the sums of money due to the said plaintiffs 
<< for the recovery whereof this aforesaid zQiion hath 1 
«c brought and prosecuted, and which said sum of one li 
<< sand four hundred and sixty nine dollars was then 
« (here accepted, taken and received by the abore pfada; 
« in full satisfa&ion and discharge of all and ui^ular : 
« ters and things, and of the sums of money due to t 
^ and for the recovery whereof this aforesaid afHoo 
<c been brought and prosecuted, and this, &c. wfam 
« &c. That thereon the referees adjourned the £■ 
hearing and returned the said plea. 

This was a report, it was all the referees coohL-d 
they could not undertake to decide, whether the plfl 
good or not, that bemg matter of law* 

Per curiam. The motion is that the referees be en 

to make a report, they having, instead of that, mades 

cial retiim of all the fa£^s, to which they have anaett 

plea of the defendant offered to them at the hearii^. 

application must be granted, therefore let the rule Im 

the referees report by the first day of next term. 

N. B. After giving the opinion of the court, Kent J. d 

ed, that their honors would advise the referees in maki 

their report to allow the receipt, if they believed it gei 

and to have been fairly obtained, in order that the pb 

on whose affidavit the application was made, if he di 

himself aggrieved, or that it was improper to alkM 

ceipt given after the rule to refer, might apply to dm 

to set aside the report on that ground, at wbiA 

the question might be fully argued. 

THE COURT desired that aU cases submitted «D 
without argument should be so indorsed, because tihof 
otherwise be laid aside under an idea that an aqf 
would take place. 

Jackson, on the demise of Le Roy and at 

against Abraham Stembergh. 

St'^of cvl^ '™^ "^ ^ *^*^ ^^ ejeament, brought far.) 
deuce. covery of hnds situated m Scoharie^ in « 



ickrt Schuyler and others, tried at the Scobarie cir- 
illie SOtk of May 1802, before Mr. justice Thomp- 

die trial it was admitted by both parties, that the 
the premiaes in question, was once vested in Rip 
lam) and that it was included within the equal one 
k fan of the said patent, which fell to the share of 
id Rip Van Dam, who was one of the patentees of 

dm the title of the said Rip Van Dam to the whole 
t Cfoal and undivided one seventh part of -the said 
f iHtich included the premises in question, was le^ 
Sonteyed by the said Rip Van Dam, to Johannes 
iier» Henrick Schaeffer, Teunis Swart, and Henrick 

^pbdntifis gave in evidence, a deed from them to Jonas 
oyt dated in January 1730 — SI, realeasing << ail the 
^ fyllaiftd equal seventh part of all the undivided lands 
wm ScJsaru river and the hills^ from Fox's creek 
. place where two rivulets or runs of water come in 
9 and bM or run in Scoharie river, by north of Car- 
et Town." After this, was adduced the ¥all of Jonas 
Loy, made in January 1749 — 50, by which he devised 
ne half of the lands owned by him in Scoharie, to 
los Le Roy, and the other half to David Le Roy, after 
cath of Maria his wife. It was then proved that Da- 
ied, leaving an only son, named William, one of the 

1 of the plaintiff, in behalf of whom Adam B. Vro- 
fuzther testified that, about fourteen years since, the 
i4aat himself shewed the comers of the lot called No. 

and its boundaries, which included the premises in 
lioiiy and said it was Le Roy's lot. That one of the 
n, I^evinus Le Roy, about the same time requested 
witncw to take charge of this lot, and see that there 
no waste of timber, that it had always been called Le 
h kit. That it had never been cleared or fenced tUl 
it fear or five years since. 

!iel«r.Beckar deposed, that I^e Ro/s lot lay north of 
{%lfnk% and south of Crab's hill, between the hills and 
\CmHh but he did not know whether lot No. 15£, 


Aufsft i8o> 





hy on the hills or not It was proved by three 
that the defendant had sworn, before a magistrate^ tm i 
certain occasion, that he had been in possession of the prii 
misQS eight or nine years, that he held the west end of fhl 
lot imdei* Henry Lawyer, and the east, end he claimed ja 
his own right, amounting to about fifteen or nineteen acnn 
and also that the defendant said it had once been Le Ro|lli 
lot. ' I 

Thomas Machin, a surveyor, swore, that in June.liMHi 
hesiurveyed lot 156, at the request of one of the hs soi^ 
and that^ according to his survey, the premises were iaclad' 
ed in that lot. --iw 

On the part of the defendant it was contended, that Ai 
premises in question lay on the hillsy and were not 
in the boundaries above mentioned, to prove which i 
witnesses were examined. ^a 

Ni^las Stembergh swore he was seventy-nine yein ol4 
and was brought up near the premises; that forty or ^ 
years ago Jonas Le Roy, under whom the lessors of ihj 
plaintiflF derived their title, shewed him the bounds of Ai 
land above described; that he the witness was well acquuiA 
ed with the premises in dispute, and knew they do nol U; 
within those bounds, and Jonas Le Roy had told die wil 
ness, that his (Le Roy's) deed did not cover the premisal 
that he was easterly to the hills only. 

Peter Mann, a surveyor, deposed that he had nm oi 
lot 156, and the premises were not included in it. • <« 

Nicholas Stembergh and David Stembergh deposed, da 
they were acquainted with the premises in question^ an 
that they are situated upon what are commonly caUed di 
Hills, and are not included in the bounds of Jonas Le Royl 
deed. One witness swore that the defendant had from IJM 
to time, for forty or fifty years past, cut wood for £ieav 
fences on the premise^; and another witness testified, t^ 
the defendant had cleared and cultivated the premiaef ib 
about twenty years last past. 

On tills evidence the jury found for the plaindff. ..^ 

Tiffany for the defendant. The application is fer li 
new trial. The verdift being contrary to law^.^videape 
and the sense of the court From the case it does not ap 



^dnt the plaintiff, or those under whom he. claims, have 
Mfben in possesion of the lands demanded. This must 
iMaMS be shewn. Run. Eje£l. 23. 4. It is indispensa- 
JfmKMKoj also that he manifest to the court a right of 
tty. Ibid. 43. and the reasons are clear, because, as the 
Hn it possessory, and you must enter to possess, you 
Miatabtish a possession, and a right of entry to obuin that 
<HWiioo, ficom whence you are eje£led. Therefore, in 
i Bur. 186,* the court decided against the remedy, 
iMffi the jrfaintifF had a right. Because, the right to en- 
■r, tn wbkh this a£lion is founded, was gone : so here, 
the iekadmt having been in possession more than 20 
icn% the right of entry is lof^t, and whatever may be the 
idiaf lestors of the plaintiff, a recovery cannot be had. 
leMghtof evidence is also in favor of the defendant. 
Giilttid contra. The reasons for granting a new trial 
wtbecdDe&ed from the whole of the evidence, and the 
rttme of the case, 1 Burr. 44. Where the evidence pre- 
W Qi tgrHes a^inst the verdifl, the court will grant a new 
nl| wben h does not, they will refuse. The point agi- 
ittd at the trial was, whether the premises are within the 
aoidaries of kit 156, or not. By part of the testimony, 
t iffem, Aey were ; and, in cases of a contrariety of evi- 
loKet die coQit will never take away the right of the jury, 
ndtrffaAaiidlaw also. The right of entry must have 
)een made out, or the plaintiff* could not have had a verdict, 
rhe dedaradon of the defendant himself, as proved at the 
nl, i> an answer to the argument respecting possession, 
■In^ of entry. He said, he held the land as tenant to 
diiLeRoys ; this was only 14 years since: as his pos- 
Mioa was the possession of the Le Roys, it shews they 

witliin 20 years, the action, therefore, well 

The 50 years cutting wood, does not destroy 

Saskxi, for it only proves a 50 years continuing to 

Tlie right of the lessors is established by the ac- 

of the defendant himself, within 20 years, 

■iAiot to be prejudiced by any inference. There is no- 

tt^ dici cf u re , to induce the court to set aside the verdi£i. 

'. ifBAof ia icply. The application is to the discretion of 

^ VMv^atai, Alkjat V. HMde ft at 

Aiiguft iloj. 




the court. If there is a cbubt of the propriotf of die m 
did, the court will not suffer the possession of the dcfcM 
ant to be changed. The injury might be more than a ^jfk 
sequent recovery by the now defendant could compe9f||^ 
As to the confessions of the lessor^ title, if their li^kif^ 
entry was gone, it could not be rerived by die adtMi 
ledgment of the defendant. . . 

Per. curiam. Delivered by Thompson, Justice. ^.\ 

This was an a&ion of eje£lm€*nt| tried at the Sdbohiii 
circuit, in June, 1802. The plaintiflF deduced a tid|^ Iftjj 
certain piece or tra£t of land, lying in Schuylec^s 
and which was known and distinguished by Lot No. U 
and bounded as follows ; << A/l the onefult^ and eqtmli 
parti (f all the tmdiwded lands between Schoharie rhfff 
the hills J fhm Fo)c*s Creek to a place where two rivtdtUw4Sk 
if water come in one^ and fall or run in Schoharie mi m.jj 
north of Garlickt Town" The only enquiry on die 
was, whether the premises in question were 
within the boundaries above mentioned. 

The jury found a verdi£l for the plaintiff, and a]n|| 
tion is now made for a new trial. 

The description of the premises to which the plsuntiff il 
duced a title,^is vague and uncertain ; they are desciM 
as lying << between Schoharie river and the hilb, fhm Iwt 
C reeky to a place where two rivulets or runs of water emit i 
one, and fall or run in Schoharie river y by north ef GaM 
Town.** This uncertainty may account, 4n some iM9iBf| 
for die difFerent results in the surveys made by the oppo^ 
paities, and for the contradidtion which appears indietOT 
mony. The plaintifFs eastern boundary appears to^efl 
hillsy and the enquiry was, where is the dividing littel 
the flats and the hills ? The testimony on die piit} 
die plaintiff, except that of Adam B. Vroman, k 
pally as to general reputation, that this was caBtUI^ 
Ro/s lot. Mr. Vroman, however, swears, that ^^ 
£endant shewed him the comers of lot 756, and iht\ 
daries, and he, the witness, said, they inciuded diel 
mises in question. On die part of the defendant^ 
las Stembergh swore^ that the plaintiff's ancestair, 
whom they claimed, as much as M or £0 ftsmi 



: to Iiiiiiy his boundaries, and that they did not 
premises ; that he was bom and brought up in 
siurhoody and had always been well acquainted 
premises, that Jonas Lc Roy, the ancestor 
ntxff, expressly declared to him when he was 
ut his boundaries that his deed did not cov- 
ly which is now in dispute. It appeared also 
Sthnony of two otlier witnesses that the lands in 
''on what always has been called the hillsy and 
endant has occasionly, cut timber on the pre- 
orty or fifty years past. The testimony is cer- 
fxmtradi£lory, but none of the witnesses ap- 
B been impeached. Their testimony however 
very different impression when put on paper, 
t would, to hear them examined. Judging only 
ase the weight of evidence is with the de- 
And although this of itself is not a sufficient 
granting a new trial in all cases, yet from the 
iqppears, there is well founded reason to be- 
has not been done. And that another exami- 
he cause ought to be made, before the posses- 
sed, we are therefore of opinion, that a new 
to lie granted on payment of costs, 

llcnaudet against Ephraim Crocken. 
IS an a£lion of trespass quare clausum fregit tried 
circuit for the county of Saratoga in the year 
ffe his honor Mr. Justice Kent. The only 
osed for the determination of the court were : 
ether if a trespass be committed in a part of a 
lly by a division made before the commcnce- 
le action, is annexed to another township, the 
i declare as for a trespass committed in the town- 
the locus in quo was originally situated ? 
etlier»a surveyor, acting under the authority of a 
Muted by virtue of a power of substitution in a 
ttoniey, ought to be admitted to testify to the 
ch surreyy without shewing the letter of attor- 
I acknowledged to exist ? 



If a trespasf be 
committed In a 
town, which 
bcford action 
brought ik tub- 
divided, the 
trespass may be 
laid as in the 
original town- 
ship. A sur- 
veyor a<Uing 
under an ap- 
pointment by 
an atrorncy, 
may testify 
without pro 
cing the power 
An agent who 
has promised 
to refund mo- 
ney received 
on account of 
his priuciral hi 




case a Terdi^ 
pait afiiDft 
mm in any 
particular luit, 
It a good wit- 
neM in that 
very cause. 

Yn a qui tarn 
aAion under 
the fUtute of 
ufury brought, 
afterlapfeof a 
year, to reco- 
ver the ciecft 

9d. Whether m agents hanrkig recerred several 
money on account of treqmsKes alleged U> have been * 
-mitted on the lands of his principal, and which he 
sed to refund if he <&d not recover In the present aAnk 
was a competent witness. • '. 

The fourth was merdjr as to the weight of testimoayh 

Per. curiam. Ddivered tyy Livingston, justice. ri 

1. The trespass having been committed in 1797, st^ 
place then within the town of Saratoga, the pla i t i tj 
had a right to allege it was done, in that town finrmijig 
to the truth of the case without regard to its subsaqwl 
division. Itie judge tlierefore properly ovar-ruled fhip^M 
Jeftion. ) I 

dd. It was not necessary to produce die plaintiff's MMiif 
attorney to Beriah Pakner. The obje£l of Baldvrin's te^ 
mony was to shew that Jacobs lived on a lot of the jif^ 
tiff*s, and acknowledged his right ; that it was tlienf*>» 
garded as the plaintiff's, taken care of as his, and poMrid 
ed under him, whether this had been done under a p9Vlf 
or not, was immaterial. The ownership and possesciqff d^ 
or under him were the important fafks to be established. • 

S. Beriah Palmer was a competent witnejss, «otwidt% 
standing the agreement he may have made to refuiul lit 
monies he had received from other trespassers, m case.t^ 
plaintiff's failed in this suit. Such monies must have been 
received for the plaintiff, and he only, and not the witotil 
would be affected by such refunding. jj 

4. If the jury believed the plaintiff's witnesses, and^«{ 
are to presume they did, the verdid is not against eridfiM|' 
and ought not to be disturbed. 

i- .IT 

Thomas Pcttingal, qui tarn. 



THIS was an af^ion of debt, under the statute of uiuqi^ 
brought in the common pleas for the county of Oneida^ |^. 
recover the excess of interest paid over and above the hfjf- 
rate allowed. The fads were that one Joseph LoQl|^ 
borrowed a sum of money from the defendant, and by Hf^-^ 
of security assigned to him a lease as a pledge, accompli^ 
ed by a promissory note (intended to operate as a bill of 8>1^) 


■leandaioorv. On repaymeat9.tbe asrignmentand ALBANY, 
at, by an agreement executed by both partiesy to y^^^ 

ISiey wene thesefore^ on the loan being returned, 
p, and the agreement cancelled by tearing off the 
md seab affixed; 

fear limited by the zGb*' for sning for the penalty the borrower* 
dupsed, the a£tion wa» necessarily, only for the difek^gtd^ 
of interest. To prove the usurious contxsL&y and ji°,f!KJi5i. 
% Imoub the borrower was called on the part of 
■tf : he was objed^ed to by the defendants counsel 
ifetenty and his testimony being deemed inadmis-^ 
be defendant obtained a Ysrdifl. 
hna excluding the evidence of Loomis, the plaintiff 
t a bill of exceptions, on which the proceedings 
up- and the question now was on the competency 
Baa te borrower. 

id far the plaintiff. The only question for the court 
naneit, whether after a man has fairly discharged 
notf extent, a usurious contrail:, by payment botk 
^al and interest he shall not, in an action given by 
lite to a- third person, be competent to prove the 
It is to be observed he can have no species of inter- 
iff money is paid \ tlie debt therefore cannot be 
I9 DOC u he interested in the event of the' suit, for 
brought by another person, it can be only to the 
p of him, and those for whom he proceeds that 
isoxe. This point is settled in the case of Abrams 
• ^Burr. 2251. so far as it is an authority in 
zL The objection that a witness shall not be per- 
O testify any thing which may invalidate an instru*- 
f which he has subscribed his name, has by later 
s been restrained to negotiable paper abne. Baker 
8. D and E 27. overruling in that respe£l the judg- 
Walcon T. Shelly 1 D and £. 296. Therefore the 
) is cleariy putof anyof those reasonings on policy 
r the instruments were not negotiable, and were 
L Indeed how far they ought under any circum- 
ib prevul may be a question since the determina- 
ijiotnitit Wary, S. s. pilled 8th Feb. 1787. i Rev. L. N. Y. 87. 


ALBANY, tion in Jordaxne v. Lashbroke and another, 7 D and E 601.* 
Aui^nft 1803. _^ , . , . , . 1 • i_ ^ 

If the question be open in this court, it may be, with gnsit 

justice contended, that the case of Walton v. Shelly is'air 
encroachment upon the land marks of evidence, but howtm- 
ever that may be, the present is a very different questidiiy 
for it does not go to the invalidating any instrument, At 
money on them having been paid and the whole conuif^ 
within the authority of Abrams v. Bunn. * 

Brees contra. Public policy requires that no person trbv: 
has signed an instrument shall be, in any cause, adnnttai 
as a witness to invalidate it ; because no man shall be ak' 
lowed to testify against his own aft. By this very coutttf: 
an aftion by the assignees of a certificated bankrupt tdfW^' 
cover back the amount of a note given on a usurious caltr 
sideration, the bankrupt was in July term 1803, heU at' 
incompetent witness to prove the usury. He was /W 
clearly disinterested ; his property was assigned to hit air 
signees, and had they recovered, the amount of the venBo* 
would have gone to his creditors. The case in Burro^ 
applies to transactions where a written security is not gif- 
en : there the borrower may be a witness, and to the otni 
efFeft is 2 Hawk. 386. 3 Woodeson 393. But where 4e 
contrad is by writing, no one whose name is upon it can be 
received. Walton v. Shelly, 1 D & E. 296. 2 Hawk. 387. 
3 Woodeson 303. The point therefore upon the authority 
of Lord Mansfield may be considered to be at rest. The. 
distinftions since taken, are subsequent to the revolutioif 
and therefore not binding here. In them it is also to be<^, 
served that the judges are far from being consistent, Bnl^ 
ler 3. D. & E. 36. restrains their admissibility to cases rf 
negotiable paper : Lord Kenyon 7. D. & E. is for tecm^ 
ing in all cases the testimony of witnesses who have no fi- 
red interest Ashurst J. however totally dissenting- hU 
true the reasoning from policy may have been stronger a 
the case of negotiable paper, but as the law now stan^t^ 
the assignment of choses in aftion constantly pra^ised, ibl. 
principle has of late been much narrowed. «« If a written cot^i 

• The dccifion there wai that the payee of a bill of ezcfaaon p) 
aetion by an indorfcc ajaiiift the acceptor, prove the bifl, " void In lu U^ 
tion. Qu. whether ttiUdiUiDcaioD be not perfedlly found. * 



lot negDtiable)be assigned, theassignee may sue in the 
it the original claimant, and such original claimant 
lot be permitted (at law) to undo his own transfer, 
ni£l the suit of the plaintiff." 2 Woodeson 388. 
I in reply was stopped by the court. 
uriam. We are unanimous that the judgment of 
rtbekw be reversed. This case does not come 
any of those cited in favor of the defendant. The 
CKis not only satisfied but destroyed. The a£lion 
k> aanul the security or take away a fair considera- 
■I tbe defendant. There is no question of interest. 
^ to render a witness incompetent it has before been 
cbat the interest must be in the event of the suit. 
Jetermination neither public policy, nor the interest 
itness can be affe^ed, he therefore was fully com- 

Aug:ua 1B03. 

>n, on the demise of Williams and others, 

against Chamberlin and others. 
SEL moved for judgment, as in case of nonsuit, for 
Deeding to trial. The affidavit stated, that issue 
led previous to June, 1802. 

Ve£ten read an afTidavit, setting forth that thirty- 
les were on die calendar, of which only thirteen 
ried, but, from the length of those, and the crimi- 
iness before the court, the present action could not 

uriam. As many causes ivere tried, it is incumbent 
^nrifFto shew tliat those issues were older than his. 
defendant take the efFecls of his motion, unless the 
fttipulate and pay costs. 

Lewis, chief justice, absent. 

Deas against Paschal N. Smith, President 
f the Columbian Insurance Company. 
JE had been joined in diis cause, in 1 800, and two 
toions had been sued out ; one had been returned, 
Mig time having elapsed, the defendant gave nodce, 
[ bit tenn> that he would then move for judgment, 
Me of nomuit On its being brought on^ the plain- 

When a phlB- 
tiff rcfifls a mo- 
tion as in cafe 
of nonfuit for 
not going to 
trial if he in- 
fiits on his hav- 
ing been una- 
ble to try hik 
caufe, and 
others have 
been heard, he 
mud fhew that 
thcf were 
older iflues* 

If a^itnefshas 
been in the 
power of a 
plaintiff, he 
muft flicw en- 
dt avour? to ob- 
t-iii his ttlli- 
mony, or he 
will not be al- 
lowed to urge 



th;: WaDt of it 
ffir nut going to 

Counter adida- 
mils to thofc in 
e(ipi>lttii'n to a 
iB*ti'>D, not 
If a full be call- 
cd and pafl'cd, 
tke r<.»Ion>i 
vhy fliuuld be 
by the counlcl 
in the caufe. 
If off. ri of 
luvc been 
made to ihe 
plaintiff, and 
fcfuftd,. on a 
motion lor 
■Afifhit, the 
cwirt will not 
order them to 
l>c iropo&d ut 

tiff8t3()ida«Qd:t»> trf> all the neaili mtttngHorcmruit} 
reaenrifl^ vtk bimaelf. die ri^ of appLyiog to die courts fiw 9 
i£ne¥^ of die sopuJodony in case die otker conunisMi^ 
dieoi panfUng^ should not be returned. ' ' " 1 

Benson now renewed die application for judgment^ vail 
affidaidt^ 9tatiag>, diat z few dap.a&er die above stipidatiirf 
was entsDtd into, die" commission to which it alludea» V* 
Tived> ami diot die cause had been- duly noticed f<Mr the IM 
sitdngs, but had. not been.brought on. '" 

Wooda coniora^ taead an afiithuiit by die pardeSy coiwc* 
count of vhom the plaintiff had effeded the policy o£ iofM^ 
ranee, on wJiich die present action was brought. TlieaS> 
d^nit staled the loss^ exhibition of proofs, applicadoo Itf 
payment, refusal ta pay, commencement of 8uit% sril^ 
out.o£ commissions, and dieir return. That the knAft 
was not fully proved by the witnesses examined under 4V 
last commission, as they were privy only to the lading 4 
what was purchased by one of the witnesses, and coieivl^ 
by a former policy, but knew nothing of the residue ; dW 
the cause was, nevertheless, noticed for trial, under-n 
idea of proving interest in sundry other articles of tbedlM^ 
go by one York Wilson, who, though a sea-faring vatIS 
the deponent believed to be permanently resident m Bfe#" 
York, as he had lived there for twelve months unintermpl* 
cdly, but had lately gone to the East-Indies \ the depowrf 
first learnt this circumstance during the time of the last Bli* 
tings, and hiu witness was not expe£ied to return bcSbw 
the ensuing winter; diat being advised the testimony rf 
Wilson was material, the defendant did not proceed to tttJL 
But that he was advised, and believed, one William Kff^ 
binson, shortly expected here, was a material witness »■ 
him, and that he believed he should be able to obtain Bib*' 
binson's attendance at the next sittings in New-Tork| <t^ 
the circuit thereafter; that, as the deponent was infomiecv 
and believed, the ground of defence insisted on by the i^ 
fendant, was the want of interest, and that the depoMK 
understood, and believed, the defendant, or some peiyA 
in his behalf, offered to return the premium,^nd pay cdii^ 
whicli offer the deponent refused to accept. That the dep^ 
ncnt was iiifbm^ed and believed, the cause was one of w 


«i At odendar, but wtOj ^iriien calM «n its w4ef» jf^^'^^"^* 
9 fcr die aocommodation^f the deCendant^ that die ^ ' 

St would iianw -proceeded 1x> taai, but for a notice ifeo 
e c-ertain .papers, M^hich he wais not prepaiaed to do. 
wuonsy Woo^ argttod, were eufiicient to prevent 
]oat of the motion \ at least, if a Tiooeuk was Kirdei^ 
wonldise 4)9 condition of titie -defendant's abiding by 
rm fto fo ia l j and paying wtiart was acknowledged -to 
e^ tbeprennuni and costs of surt. 

ij&sed a counter affidavit to shew that York Wil- 
^adnre, and therefore the want of his testimcNif 
ma have prevented the cause from being heard, be^ 
■d he iieen present^ bis evidence -could not have 

lAi co mcn ded, that connter aiSdavits wereinacU 
•to because, in the first place, a copy had never been 
wif and, -in the next place, the pradice was to ex* 
ilt■^ k. being incumbent on the party mcfving, to 
tii$ application on his original depositions. 
IBB aokncm-ledgod the general projiosition, but dis^ 
bad the present case by tlm circumstance ; tfrnt the 
r sBiibivit was not to support the moticHi, but to con- 
: a tsolbaeral and independent fa£l: asserted by tlie 
f% and as to not being furnished with a copy, the 
Chad not gfven a copy of his. 
oda. Copies of affidavits in exculpation, are never af- 
, Aose to charge or demand, are. 
cvriam. The applicntion is for judgment, as in case 
wt : diis is opposed by a deposition read by the 
^ £sclooing fa£^<>, to rebut which, the defendant 
I counter affidavit : a question is made whether it can 
9ved» On examining into the point, the court finds 
to be settled against its reception.* It is ex 

decided, in Grove ad-sdm. Campbell, Cole. Ca. Prac- * ^'''*'*' *> 

14^ << that a party can never support his motion by 

|ipda:fitt but those on which he originally grounds it.* 

t aaodoA mu«t therefore depend on the first affidavit?. . 

Ilhlf by die piuntiflF, among other things which it 

Ik it appears, that the commission mentioned in his 

tiipoip as the one then pending, was returned before 


•Al^^I^t the last circuity and that he might faare then gone to trials 
His affidavit further states, that the return was examute^ 

and the proof wanted, not contained in the answers 
interrogatories *, that the mterest required, did not ^tfH^h 
that there was a witness who resided in New-Yotijn |||^; 
whom it was expelled to establish the same fa&a.;, TUt^ 
witness was not applied to, nor was any measure takt^.H • 
procure his testimony till after the commencement ^$ 
court, and then he is found to be gone to the £ast4ii4il|t 
There is, however, another witness, who knows stM^. 
thing material, but it is not stated what, nor thatjg|' 
measure is taken to procure his attendance. It is £i9t||| 
stated, that this is one of the oldest issues i that fK^-^^ll, j 
called on and passed, for the accommodation of 4>i;j|ij|)^ 
fendant, though it is before sworn he did not prooeedJK 
trial, because the testimony of York Wilson was^ 9l4||. 
plaintiff was advbcd by his counsel, material, and co^ 
not be had. The. court are of opinion the reasons aii^. l||| • 
sufficient. This is a second application for judgmoaU 
there has already been a stipulation, and that a special ggp^ 
The want of a witness is alleged, and no diligence ll^eifll 
to procure him. There ought to have been immedi|ft| 
measures taken to subpoena him. It docs not suffideojlB 
appear that the cause was passed for the accommodatjfl 
sworn to: it was necessary to have substantiated this |lJ||^ 
rests on the single oath of the party ; the counsel, himijfc 
ought to have stated this. But though we should fP^'\ 
the nonsuit, we are requested to do this on condition, t|N^ ' 
affidavit, as to making the offer, is equivocal ; and ifi.M' 
any case, we would impose such terms, this is not o^r 
for the plaintiff has not disclosed enough to shew the EAb 
position was ever made. 

Benson pressed the court to reconsider the case in I 
man, and weigh his distinction. 

Per curiam. We shall look into it, and if we see 
iion to alter our opinion, the bar will be informed of 
In the mean time, judgment of nonsuit must be entmL* 

Lewis, cMef justice^ abiflj 

N. B. The court never spoke to it again. • • ' ii 


ohp Ripky against Robert Wardell. 

WW an m^on of assumpsit, gioundcd on the 

cimiiiistances. • 

Mntiff was, in 1796, a creditor of the defendant's 

[^ Wardell, on a promissory note of his, for Amaionwui 

1. pajable at ninety days after date. ^ *"^" ^v^^ 

^ • ■' ' * ment by a third 

pabcr 1799, John Wardell held a promissory pcrfon to pro- 
Ill dpUars and 28 cents, made by one Jonathan difctuirge of m 
mi dated 16th May 1798, payable six montfa3 f^Z^^i^ 
9 nd wshing to «ctinguish the demand .of th^ JlliSlji^gSo'^ 
A4t k might be no obstacle to his discharge un- l^^^l^l^^^ 
iiglfient 2&, he offered to transfer Hayne's note to pUintiff; lo 

— , , . . • ' confideratlon 

Wg nfl at toe same tmie accompany it with a se- of hit giving 

ywe wbefk discharged, his own note for six shil- Jm'^S^te^^for 

i9^ p«ace in the pound of the original debt : oa if^l^\^^^ 

be was to receive back the note of Haynes. 5?*^'"^ ^* 

....«•! y .. difcharge un- 

hqpythe defendant, as his surety entered mto dertbea<a. if 
rifg contrail with the plaintiff. depuCte^ on 

hcpQtby agree ?nd promise to deliver to lohn Rip- whkh'ufe^d^e. 
pi Wwiell's note for six shillings and eight penqe K^«Stied\o 
nxpd. for a note now triven up for seven hundred fomething in 
my«-^even dollars, dated 26th December 1796, deringthede- 
iJpiinD^ days after date. The note which is to may'inftantij* 
p^.«esaid John WardeU is to ^?e dated and SSuLter 
iftff (le^s .discharged by the aS of insolvency, ?"thc"d^y?ftw 

rijl^lteen inonths after date ; at which time ^"^^ **^<^ ncc* 
pity jb to return a note of hand a^ipst Jonathsvi 
I §0i eight hundred aud eleven .dpUars and twen- 
t iCCBQtBs dated IGthMay, 1798, payable in six 
I wjridi is the property of Jolm Wardell^ or re-> 
IB jfrnting to Robert WardeU, and keep the note 

Hayi^. New-York Nov. 7th, 1799. Signed 

Ijlhci9 ^r9s, and now is insolvent : but his note, 
j||qi^l|Cpqg, delivered to the plaintiff, he gave \Lp 
gf JMI^ Wasdell, who was shortly after discharg- 
ij^ nsgljrsx^t law. Previous to the 19th of No- 
ISblf and after the discharge under the insolvent 
a Waiddl cbCadned his certificate under the bank- 

gffAeUnitied States. 

A a 





. On the 19th of Novembcri 1801, the plaintiff comnu 
ced the present aftion, but, before doing so, offered td^ 
turn, and tendered to the defendant Haynes's notie^ li 
manding at the same time John Wardell's, payabh 
eighteen months, for six and eight pence in the poHnd i 
cording to the terms of the agreement. In the cour&e 
the next day the defendant texidered the plaintiff, Jd 
Warden's note for the composition agreed upon, and pi) 
ble at the time stipulated. The plaintiff however contvi 
ing to proceed, the defendant gave him a reli£^ and co 
novit a£lionem for 270 dollars, the amount of the uz a 
eight pence in the pound on the original debt, $ubjeSj 
the opinion of the court, whether on the above itittPi 
the plaintiff was entitled to recover? if Aey should •oddi 
mine judgment to be entered for him, if otbawafi' 

Per curiam Delivered by Livingston, justice, fcn 
the defendant's duty, under the agreement staDodv^ 
this case, to make a tender to the plaintiff of John Wi 
deU's note immediately, or early after his dischiige-: li 
giving of such note was a condition precedent to the phi 
tiff's retummg the note of Haynes. The tender rf d 
note after the suit was commenced, (which was not u 
two years after the defendant's discharge, and after the i 
cond bankruptcy of John Wardell) was too late. If itk 
been given sooner, the plaintiff might have turned* k * 
some use in the way of business without renderii^ Um 
responsible. It does not appear when the plaintiff oAi 
to return the note of Haynes. If at the time of ' audi p 
posal the defendant had given him John Wardelft fli 
antedated as he requested, it might have ^tnswenifm 
the plaintiff would have been bound by an offer, wUdt 
my opinion was not at all necessary to entitle him tod 
suit ; at any rate as^this request was not acceded to uiti 
day after the suit was commenced, it was too late nd i 
plaintiff must have judgment for the sum of 270 doBnH^ 

HoUiod V. Palmer, tiii^ 


• See Cockfhot ▼. Bcnnet, a D. ft £. 763, 
PuU* ^. Jiaaitk ▼, Sromley Dong. 670. 



rhe' People against Chapmdn Denslow. 
defendant had been tried, and found guilty, at the 
It of oyer and terminer for Columbia county, on an 
lent for obstruAing, in the city of Hudson^ a pub- 
.qr highway, leading from Poughkeepsie to Kinder- 
On the trial, it was proved, that the defendant was, 
Sie af^tntment of the president and direflors of the 
hiai turnpike, keeper of a toll-gate, standing in the 
^ifadmi, diredily across the road mentioned in the 
aeaif and which had been a public road for more 

fears. On the part of the defendant, the exem- 
ioDSof two a£t$* of the legislature, incorporating a 
If, by the name and style of the president, diredors, 
Dpony of the Columbia turnpike road, were given 
nee, and also a permission of the governor, author- 
leefe&ion of the gate, in pursuance of the seventh 

1 of die law of the 29th March, 1799, incorporating 
WBgaaf. That of the 28th March, 1800, sec. 3, di- 
'dttt the most westerly turnpike, or gate, shall be 
ed mar the dwelling-house of John Van Hoescn, in 
Sty of Hudson." Tlie testimony adduced, proved, 
waft placed 8 chains, 15 VmV^from the house. By 
, sobmitted to the court, and agreed to by the parties, 
aved that the gate in question was placed just at the 
X)t where the old road, for the obstrufting of which 
ii&nent was brought, intersefted the turnpike ; so 
was impossible to pursue theoldroad, without cross- 
t turnpike, and going through the gate in dispute, at 
,kdf toll was demanded. 

for the consideration of the court was, whe- 
the words of the 3d seftion of the aft of the 
f Ifarch, 1800, theereaionof thegate on that pre- 
ok oould be justified : if it could, then a nol. pros. 

neer, attorney general, for the defendant. Previous 
fag the office which I have now the honor to fill, I 
ife^ied, and that originally, on the behalf of the com- 
. I have considered this rather as a private than a 

* Laws 398. 28th March iSoo, 
.L]i 1^ Ect. Laws 40^ 

Auguft 1803: 

The People 



If an a<5t give a 
turnpike com- 
pany power to 
ercA a roll gate 
near a particu- 
lar rpot, they 
may place it on 
the very Inter- 
fedling fpot of 
an oM road, fo 
as the gate be 
but near the 
place defigna- 
tcd ; for near it 
not to be con- 
(trued Dcaxcft 





pabEc matteri atid is ivliat I have to nij^ should Iny ofl 

cul situation rtoder it improper for me to address die cMn 

will equaUy be advanced by some other person^ it ia indHl 

terial^ I presume, by whom it is uttered. I shall nott HM 

ever, proceed, unless the court shall say I may doesycoi 

sistendy with my duties to die people. 

Per curiam. Go on. Sir. ^ 

Spencer. The only question is, whether the ereCbaai 

the gatci at the distance from Van Hoesen's hous^ aNk 

tioned in the case, is an e region within the words tfih 

aft. There are two afts of the legislature to be lefiemd t 

on tins occasion. The first is die aft of inoorpontioiii ftU^ 

ed die 29th March, 1799, esublishing a turnpike ^ 

tion, by die name of die president, direftors, and i 

of the Columbia turnpike road; die second enafted in ih 

28thof March, 1 800, toamend the first actand routebfoolil 

particular alterations. The situation of the most wciiri| 

gate, the one how in dispute, is in specific wofda "ii 

down. Whedier they are complied with, must b^, afteNh 

fafts are found, a question of law ; for unless it lieao|<l 

setded determination could be made. Th6 aft sflft ih 

gate shall be near the house of Van Hoesen ; it is itt ^ 

dered to be on the part of the road nearest to Van Hoestfft 

are not dien 8 chains and 15 linlcs near ? Had die gateM 

placed more easterly, every person travelling the tanfAi 

road, might have quitted it at Claverack, pursued 'dicil 

road round the gate, and a little beyond it, have entered A 

turnpike again, without paying toll. It is true dn^l] 

the 10th seftion of the first act, there is a penalty giMlll 

using the turnpike, and then going round the gates to §■> 

the toll ; but this could not apply to persons umg an il 

road ; nor could it be carried into eflfeft, from the iBijMi 

bility of being constantly on the watch. It is to giHii^ 

gainst these inconveniencies that the legislature, has ^tstk 

use of this relative term << nearf* in order to give adkoi 

tion to the company to place the gate where t^ef^Mj 

think it most beneficial to the mterests of the st 

Have die president and direftors outraged diis 

so confided to them ? That the gate catches people 

ing the road, is no argument ; and even in tlib^ dk d 

dP'ntt Sl^AtE Ot IfBW-TOllC. 


ii kmt' dMm their modttitiDliy ftr thtj dtmaad 
yiMlL Fft>A the map, it is iiiUlift8t» if the gate 
Mfcd^ tihtl in numberless instanotot ^Mn Kinder- 
liGlivviadii die tolls may be Evaded. TheeflFea: 
1 ht to cieiW a depreciation of £0 per oeitt oA the va- 
f Aa stock. To prevent thi9> the l^idature.hts given 
tMBKfaarf power to ere£l the gate near Van Hoesen'd, 
Hn4llle mad that the company has violated the discre- 
cawhifti in them for the management of the company's 

The question it, whether the president 
have a right to make people, who only cross 
Hld^- jMiy as if they had travelled along it i There is 
, aor les^, presented by the ease. The gate 
the very place where the old road croaees 
It never could have been the inten- 
tf "lie legislature by allowing a new toad to tax 
lUs yet ancfa is the consequence of die constfuc- 
al^ttfeaS no^ insisted on by the defendant, tor it is 
■^ by looking on the map, that when the turnpike is 
Bdy ttid the old road pursued, the turnpike can never 
i}tt tnteied on, for the old road comes in at the head of 
3ly ti Hudson. Had the legislature been told that the 
k of die ■& they were about to pass, viwuld be totevy a 
Ml the old read, they would certainly have hesitated. 
•ttg the word near, to be, what it certauily is, a rela- 
a, it m ust be taken to mean near, jo as you do 
i fbe rights of the comnrnnky^ and set up your gate 
I people who travel along their own old road, and 

k, same side. This is the only construdion 
|h cm be equitable for the company and the commu- 
^ The intent of the a£t was to give a right of toll from 
llfwlio travelled along the road the company had made \ 
g i a tedb r c, against such, there is a penalty of ten dol- 
hj^fthl C* evading die rate allowed to be taken. This is 
MJlk^lo vecme the company from tricks that might other- 
Ittl IkB^aed. The w<»rd near, must be understood by 
[ jlle intent of the a£^. Tlic old road was consi- 
; was passed, and it never trM the clbjed 






• ▼0I.L.N.Y. 

of tlielegishture, by the word near, to shut it up. Tl 
a trick of the company to entrap the traveUer, and thiii 
jury, by their verdift, have found, on a very full esa^i 
don. The court will, certainly, after this, be cautiQi 
saying near is this very spot. It is granted that thew 
of the act will be satisfied by it, but is there no other ] 
which will do so? and may not one be found, equally 1 
unattended with any of the inconveniencies now objc 
against the gate ? 

Spencer, in reply. This is a mere question of consl 
tion ; the case and situation is fully before the couxt^ 
they will decide. 

Per curiam. Delivered by Livingston, justice. The 
fendailt has been indi£led, and convi£ted, for obstrd 
a public highway in the city of Hudson. 

He was keeper of a gate under the Columbia tun 
road company, and the gate he attends is ere£led 8 d 
and 15 links from the house of John Van Hoesen. 
gate has been set up under that part of one of the law 
corporating this company, which declares *< that the 1 
<< westerly gate on said road, shall be ere£led near 
«« dwelling house of John Van Hoesen ;" and it is sill 
ted to us to say, whether it has been placed conformab 
these diredlions ; if that should be our opinion, a noUo 
sequi is to be entered on the indictment. 

It is not denied by the public prosecutor, that this | 
is near Van Hoesen's house, but because it is not as n 
as it might be, and intercepts those who travel a cert 
road, leading from Poughkoepsie to Kindcihook, axid vb 
crosses the turnpike at this place, he insists the | 
should be removed, so as to occasion no interruption of I 

Whether this circumstance exists, or not, is foreignA 
our enquiry. The legislature, under a full knowled^ 
the different roads in that part of tl:e country, haH, 
thorised the ereAion of a gate near this house, aad 1 
thereby invested a discretion in the company, wUd 
must have been expe&ed and intended, would be exord 
for their benefit. So long, therefore, as this gate bi;i 
to Van Hoeseu'b house, which is conceded to be tteti 


riMe no right to interfere, by saying that this discr«txo«- 
ska abused, or that the company haye obstru£led the 
Avay leading from the south to the north : thi^ would be 
orae as to say, that they shall not do what the legisla^ 
have given them permission to do. Our opinion, 
cEore, is, that this gate was ereded pur. uant to law, 
L dke pesent prosecution cannot be supported* 

The Peopl':*, a<;afnsf James Dole. 
niE attorney general moved for a rule on James Dole, 
g Aaiff of Rensselaer, to shew cause why an informa- 
isboold not be Bled against him for false swearing. 
t fflodoa was founded on two affidavits, and certain 
idn on file in this court from which it appeared 
iDole, while sheriff of the county aforesaid, had in his 
loAj one Isaac Bull, chp.rged in execution at the suit of 
5'Edwaid Rawson. That Bull having escaped from 
\toif^ a vnxt was tliereupon in'^^tituted by Rawson against 
' who pleaded a retaking on fresh pursuit, and 
to the a£l in such case, &c. accompanied his 
i iridi an affidavit, that the e:xape was without his 
MBt, knowledge or privity ; which suit is still pend- 
. The affidavits were by Bull and another who was in 
oa with him during his confinement. They state that 
le lepealedly declared to Bull that he had broken his 
Ir,* was no longer his prisoner, and could go where he 
Md. That Bull at length quitted the prison, and went 
Ins own house, where he remained, until replaced ia 
t wier process in another suit. 
W curiam. Delivered by Lewis, chief justice. The 
9ft of the application is to render Dole liable for 
panhy of 1250 dollars imposed by the a£l aforesaid oa 
lyihenffy whose affidavit accompanying such plea as 
shall at any time afterwards appear to be false. 
are two objeQions on the part of the court, to 
■dag dui motion. The one, that neither of the affida- 
i^Mto thai Bull had not, as charged by the sheriff, pre- 
lif Ibifeited his bonds by an escape, involuntary on 
ijMt of jdut officer. If such was the fa£t, the sheriff's 



10 Mirchy 
i)(ui. fee. ssd. 

m cAim m the supreme oourt 


yfn^ affidsvit is not falsified, though we admit- every 
•Cated in the aflvUvitsy in support of the applied 
be true. 
He other, ai^d the more important objeAion is^ 
- auit is now pending between Rawson and Dole, uil]p 
secutipn of which ^ the fads and circumstances. Hi 
to the escape, will be fully developed and ezamin^ 
every objed attained, for which the information ia ihte 
Tie rule is therefore denied. 

Under theadt Jaizijes Stuart a;^a/7z^^ Calvin Rich. 

£^^e?ft Com- IN error on certiorari. 

ETSt^'wdicrn The plaintiff was a toll gatherer at one of the gat^ 

Turnpike ^ ^^(1^ the d& pa^ed the 15th of March, 1799, k 

Road, full ton ; . - . 

if payable, tho' f* An acx to estabush a tumpiKe corporation, for iq^ 
travelled^ the** ^* the sjatc rOad from the house of John Weaver, in ! 
j~^than a viiet to C3ierry Valley," incorporating the first ecu 
ci the great western turnpike road. 

By a clause in th^ 10th sedHonof the law redted 
provided that no gates or turnpikes (except a tumpiki 
bridge before mentioned) shall be ereded at a discaoo 
than tea niili^ from each other. The 1 1th seflion c 
<*That as soon as the whole, or any part of the aai|| 
« shall be complete, and permission to ere£l a gate oa 
<< as aforesaid, be granted, the president and diredor 
c( appoint toll gatherers, to colled^ and receive of aqi 
« all iand every person or persons, using the said rqa 
« toUs and duties herein after mentioned, and no mm 
«< is to say, any number ^ miles not less than ten inki 
<< said roady the following ^ums of money, and so im^ 
*« tioufor any greater or lesser distance, to wit j for every 
« &c." 

Under the 15th se^iion, a penalty of five dollars is 
sed on ^y toll gatherer, who shall receive more tp 
is establish^^d by the a£l : to be sued for before any ^ 
of the peace of the county in which the ofiencef ^ 
comnfiitted, for the use of the party injured. 

Upon this clause, seven actions had been tnstitill 
low, against the present plaintiff, and recoveries d: 
in all, for receiving at his gate, full toll from, traveila 
had Qot passed ten miles on the road. , ^ . 


19 nfifw flubmitted to the court, whether the full toll AUANY^ 

jll^f taken, or, whether there should not have been 
£KoD made from it in proportion to the distance 
the travellers had used the road, less than ten miles ; 
ing to the arithmetical rule, if ten miles give so much, 
v3i fteven and a half give ? 

leqmrt should decide in favor of the proportional 
^NM, die judgment to be affirmed; if against it, and 
e now ^inti£F, a reversal to be entered. 
curiam. Delivered by Kent, justice. This is a 
OD oerriorari from a justice's judgment. The 
ff is toll gatherer at one of the gates of the first 
If of the western tiimpike road, and the suit below 
on the 15th s'efbion of the a£i, R. L. vol. 2, p. 395* 
eltioa submitted is, as to the true constru&ion of 
h «e&ion of the a£l, p. 393. The gates on that 
■cept the one upon the Schoharie bridge, are all re* 
to be «^ less than ten miles from each other, and 
b weBtioii gives the toll therein established for any 
ffmUfs not less than ten in length of said road, and 
if^rtkftfir any greater or lesser distance. These last 
an be satisfied, by applying them to the greater or 
Iktanceain;^ ten miles. The gates may be twelve, or 
f at twenty miles apart, and then the toll is to be 
d nteaUf, according to the distance, which cannot, 
BTy be less than ten miles. This constru&ion is the 
e that is reasonable, and it will satisfy the words, 
sm that the company must vary the toll at every ten 
te, on the suggestion that a person has used the 
r a less distance than ten miles is inadmissible, be- 
inpraAicable. The toll gatherer has no means of 
)g whether the traveller has rode ten miles, or a le?.s 
^ previous to his arrival at the gate. If this sugges- 
ts allowed to be a ground of reduction of toll, it 
bptn a door to the greatest imposition and fraud up- 
tnoapsakj^ and it cannot be considered as within tlie 

i and. spirit of the a£t, especially as the words can 
fid by the other constru£tion, which is a natural, 
td pra£Hcable construdtion. Judgment of reversal, 
nitf must be entered. 

idifiey justice, gave no opinion, being mterested as a 
older. Bb 




Ai£uft i8o3« 

Fa<*ls from 
which a part- 
nerfhip may be 
inferred arc 
matter for a 
jury, and 
should be re- 
butted by con« 
trary evidence. 
An mdorfe- 
ment by one of 
'a firm in his 
name, Ac Co. 
it good to bind 
the other part- 
ner, though 
the firm has 
been always 
known by the 
name of ano- 
ther partner & 
Co. unlefsitbe 
shr>wn tJiat 
there is such a 
diftindt houfe 
as that, by the 
ftile of which 
the indorfe- 
mcnt is nude. 

Moses Drake and Stephen Pinkney, ag 
John Elwyn, Peter Wittaker and Samuel 

THIS case was submitted without argument; the 
and points are so well, and closely stated in the dec 
that it would be tautology to do more than give the o[ 
of the court, which was delivered by Kent, Justice. 

This is a suit against the defendants as co-partne 
trade, under the firm of £lwyn and Co. on a note t 
plantiffs, subscribed by the said Elwyn, by the nai 
Eltvyn (5* Co. and dated the 11th December, 1800. 

On the trial his signature to the note was proved^ a 
was admitted that Samuel Wittaker was a partni 
the business with him, and the question that aroee' 
whether Peter Wittaker, the other defendant, waia! 

To prove tlus, the plaintifl^ gave in evidence tha 
the defendants, about the fall of the year 1800, wen 
gether in a sloop in the Hudson River, having good 
boards and the said Peter being asked whedier he w» 
ing to keep store, replied, yes^ we are going to try it, ' 
Peter Wittaker was frequcndy seen in the store with 
other defendants, and was there generally as much m 
other defendants, and he was once seen by a witness to ( 
spirits. That die store was sometimes called Wittal 
store, sometimes £l>»7n's store, and sometimes Elv 
and Wittaker*s. That the said Peter is father to the 
fcndant Samuel, and a very old man, unable to ^ 
Tliat after six months Elwyn became insolvent and 
partnership was dissolved, as it was understood from g 
ral report. That the said Peter told a witness who o 
the co-partnership, that he must pay fo him and to n^M^ 
That it was generally understood that Peter was a pait 
and that die son Samuel was only a clerk. That die 
Peter spoke to a witness of the dissolution of the pait 
ship, ab if he had been a partner, and mentioned that 
was in possesion of the stock, and diat the debts nven f k J 
to Urn. 



as no evidence that the defendants carried on 
r the firm of Elwyn (5* Co. 
is evidence the defendants moved for a nonsuit. 
ause the plaintiffs had not proved a partnership 
e three defendants. 

lose the plaintiffs had not proved the existence 
hm as John Elwyn Sc Co. or that the defcn- 
! partners under that firm. 
ft over-ruled the motion, and the question now 
without argument is, whether the judge pro- 
ruled that motion. 

lie evidence is sufGcient to prove that the three 
were in co-partnership as traders at the time the 
hren. At any rate, it was sufBcient to let the 
) the jury, and to prevent a nonsuit. The only 
^ concerning the want of proof that Elwyn and 
e co-partnership name. But as such a signature 
.0>-partnership, and a co-partnerbhip did exist at 
ttween Elwyn and the other defendants, I think 
presumed that such was the name of the firm, 
; was sufficient to cast upon the defendants the 
{ proving what was the name of the house or 
I different name existed. They did not attempt to 
presumption, and of course it belonged to the 
nsfder of, and to draw that presumption. A third 
irises, whether the note in question was given on 
liip transadlion^ but the same answer may be gi- 
st as to the preceeding question. The intend- 
lat it was on a partnership account, and that in- 
ought to have been repelled by the defendants, if 
id iatruth. 

nion accordingly is, that the motion for a nonsuit 
riy over-ruled, and Jiat the defendants take noth- 
ir motion. 

uicroft and Lois liis wife against Ichabod 

ER iTor lands and tenements in the town of Canaan, 
XBty of Columbia, claimed by the demandants, in 
he wife^ and as the widow of Daniel Hawes. 


Augnft Z803. 

A perfon hold- 
ing i;iuK-r c(»ii- 
vcar^cs ill tec 
driluccd from 
the hu.->banil of 
the djmandant 
in dower is es- 
topped from 
c ontrovcrting 
the .*ci8=n ot 
the ViutV^M^ 


jgi|LJ^^» The parties agreed to the following statement of f; 

\.^v?i^-^ Daniel Hawes^ the former husband of Lois Ba 

^^■^IJ *"^ one of the demandants, during the coverture, and fe 

I^bod wut y^rsp'fcvious to, as well as on the first day of Now 

^._«...,..^ in the year one thousand seven hundred and eighty d 

possessed of the premises holding, us'ng, and inif 

the same in his own right, and not in the right of ai 

and being so possessed did, on the said fifth da)K>fM 

ber, sell the same to one Jacob Brooker for two hi 

pounds i and by deed of bargain and sale, bearing da 

same day and year, in consideration of the said sun 

veyed the same to the said Jacob Bro(5ker, in fee w 

Tenant of warranty. 

The said Jacob Brooker entered by virtue of d 
deed, and continued in possession until the executkm 
deed, next herein after mentioned, occupying in & 

On the eighth day of June, one thousand aevei 
dred and ninety five, Jacob Brooker, and Hulda hii 
for the consideration of eight hundred and ten p 
conveyed the aforesaid lands and tenements to Si 
Gardner, in fee, with covenants of seisin and for qv 
joyment, and containing also a release of dower ' 

The said Silvanus entered by virtue of the said de< 
continued to occupy in his own right until the twent 
day of September, one thousand seven hundred and 
nine, when the said Silvanus Gardner, and Anna hi 
by indenture, bearing date on that day, for the conad 
of seven hundred and fifty pounds, conveyed the sai< 
and tenements (except thirty acres thereof) to Ic 
White in fee, with covenants of seisin for quiet €iij< 
and warranty, and the said Ichabod entered by virtoe 
cf, and has continued to occupy in his own right. 

By an a£l of the legislature, entitled '< An aA i 
<< sale and disposition of lands belonging to the pei 
** this state and for other purposes therein mend 
passed the twenty second day of March, one thodatt 
ven hundred and ninety one, it was enafted as follow 
wit: «That all the estate, right, interest^ claim ai 


4 fftbe people of the state of New-Tork, ot ia albaht, 
l^a&7 hub, tenements or hereditaments in the town ^S ^'^ 
paan, in the. county of Columbia, now possessed 
f peraoa or persons, shall be, and hereby is granted 
tmufeffhx.pefussorsy of such lands, tenements and 
BftmiBnrs and to the heirs and aSbigns of such possess^ 
Wg^BmXj for ever": Provided always, that such pos« 
AtptMessors, shall be construed and taken to be the 
€r persons holding in his or her own rights and not 
t^improving in the right of another. 
: usual in the conveyances of land in the town 
■irPMr to the passing the above ad, for the wives 
nuors to join in the deed. 

olS fat' the demandants. The question for the con* 
n-of < the court is, whether upon this statement of 
e^emsBdants are entitled to recover? We shall have 
sid that they are. 

te l»oonstxtute a title to dower, three things are 
I hf hw: marriage, seisin and death.* 
St and lastare admitted; the second is only controvert- 
dik however, we think sufficiently shewn by the case, 
n Aat Hawes, the first husband, had a possession 
unberof years, using the land as his own, not un« 
other person. He exercised ownership over it, in 
t eitensive and complete sense of the word, for he 
od that with a covenant of warranty. Tliis, there- 
enongh to shew seisin sufficient to entitle to 
B dadm ever favored in hw. But should it not in 
sbe enough to create a legal seisin, the defendant 
ledand can never be allowed to dispute our claim, 
de is derived through Hawes, the first husband of 
indamt, and in his right it is that we claim. Against 
cr, the a£l stated in the case is insisted. This a£l 
sdio confirm, not to destroy rights, and that of the 
at. is proteAed as well as those of the persons in 
■, The a£t operated by way of release and mitter 
The nature of which was to make valid not only the 
die tenant, but that of every other person conne£led 


ALBANY, trith it: therefore, hot only the estate of Brobker, but thaiC 
' of every other person connected with it To tins the r 

^"fe""* ^n Shep. Touch. 319, is in point. "A. disseiaeiK 
IdAbodWhtte " ^^^ Ica -es for life to C. — ^B. releases* to A. it is gpod fan 
.^_«,...i. ^ C." Not only the estate of the person in possesuoBilNlt' 
every one conneflcdf with him is equally within its eSeGL 
But from the case it does not appear that the state hadaiif 
right to release, if so, the seisin of Hawes must stand ttii* 

Benson contra. This case depends on considerations d 
a very peculiar nature; on the known circumstances attend 
ing the lands in Canaan, and the construdion of the ftaM 
recited in the case. What seism now is, is a quesdon. Tk 
t:ase in Burrows:^ shews what amounts to a seisin uodv At 
ideas now entertained; a possession is not a seisin, ttid ft 
that is all the seisin here. In that sense of the vordHmi 
may be said to have been seised, but in Tniesdale*! case dll 
court took notice that the whole county of' Kings wv^ti 
ken posse: sion of merely by occupancy. The case stM 
that Hawes held merely as his own, and not in orby -flio 
thcr. The whole country was deemed vacant, and any CD 
took possession^ 

This was the view in which it was beheld by goHXt 
ment, and therefore in 1791, they passed the law recitd 
The eflvfb of this was to take no notice of prior occupancia 
such as Hawe^'sy but to confirm to such as were then i 
possession, and who were no longer considered as usurpei 
IL;d Hawcs derived his title under the patent he would ac 
have been touched by the a£^; as he did not, it mutt I 
presumed, he had only a title by occupancy, & whenhMi 
linqui hcu that to another, that other was confirmed agaitt 
every one else, as tlawes himself would have been. Tl 
law was intended to meet cases where the right was by 00a 
pancy only. Truesidalc entered on a piece of ground fl) 
posed to have been vacant; he then moved avray; somefli 

* I'he worJii confirm. The reafDnicg Is this; by thedificlfinatortknif 
in gained, if then dir «1iffei(or leafct fir life, he rct&iiis the rc^KrficB^HM 
the rcverfion be confirm d,th. lea c for iife is fo oi couifc. The ftlBCfe 
of rcieare of all nght. Lit. Sec.449- f* <6A.p. '^ 

t 1 hi» is too general. Every on. througU wLofcefiAU he derives titkb 
t ray •or, x. dem AtkyD«T. Horde. 


Med on the same land, upon which Truesdzre ALBAMY... 
an eie£b(nent, but this court held he could not reco- - ^^ -^^ 
line he could not have entered animo possedendi. V^qcroft mu| 
98, when Hawes took possession it was vacant %.* 

lie reason why his widow is considered as not en- '^'^*^^"'" 
dover^ is, that Ks estate was merely that of occu* 
id not a seisin. In any other case, but that of lands 
i wrawced y it might possibly have been a seisin, but 
could not bej for the whole was a usurpation and 
ooCDpuicy. To this, therefore, the law of seisin 
lyEcsdde. The convepnce and clause of warranty 
EnrfSy can work no estoppel upon us. Hawes 
■fdpdssession, might have been deemed entitled to 
f tatxy, and then the warranty was no more than 
re of prudence. It is probable^ he never sold more 
i m prov e ments, as was the custom in that country, 
aft iaaerted merely to have evidence of a better title 
t maUy given, which was a parol sale of the im- 
sm. Of all these fa£^^, the court will take notice, 
fid in Truesdale's case : the present statement does 
lie hnd was granted, and therefore the occupancy, 
general drcumstanccs of the country, must be in- 
> apply. 

lotti mveply. From what is stated of Trucsdale's 
is evident that he was a mere occupant, a squat- 
re a title is deduced by conveyance, which, as it is 
I teisis must be presumed, and this circumstance 
iihes it from Truesdale's. Possession, in all cases, 
loe rf right, and as Hawes's was relinquished after 
snveyance, the court will hot presume otherwise, 
we have it not in our power to produce the title 
n whence he claimed. The widow has them not ; 
ib the heir, or the purchaser ; and as her^s b a fa- 
le^ unless they are produced, the court will not infer 
nndlnd no right, or that he was a mere occupant. 
bed dut Hawes held in his own right, and this ne« 
due of any other person. He exercised an aA of 
Up, and what he did, being in his own right, is in- 
nt widi that of any in the state. If, in any case^ 
teife^ warrant an inference of seisin, it will here* 


ALMVT* White cannot controrert the title of Hawes ; a bargainee^ 

^..^^'s/-'^^ ^7 niesne conveyances coming in under the husband, is ei^ 

■■■^ "^ topped from denying the right of the wife, and must adadt 

• 1. 1^1 wLi^ it- That the state has anyclaim, can admit of little doriit^ 
KbiDoa wute , . . • , . ' '^ 

............MP The act IS to confirm previous rights, and must be to eiml 

strued as to efie&uate that intent Suppose this the case of 

a base fee, and before the condition was broken, Ae afl|^ 

had passed, would the breach of the condition afterwartl 

alter the right of the donor ? Besides, the state does mk 

appear to have any interest, and it cannot be presumed, t^ 

the fa£l be so, it ought to have been in the case, wlud^.ii 

it now stands, we have clearly made out. 

Per curiam, delivered by Kent, justice- The 

husband of the demandant, for some years previoos t9:i 

1st November, 1786, was possessed of the premise^y ] 

used them as his own, and not in the right of anodNTfJE 

then, for a valuable consideration, conveyed the same m T 

with a covenant of warranty, and the lands have pa8se4i I 

subsequent conveyances in fee to the present tenant. Tm, 

is sufficient evidence, in the first instance, of seisin m tfi 

husband. The wife is not bound to produce her huibadfii 

deeds, because it is not presumed to be in her power^ nAlt 

the present case, the tenant claims in fee, under title derii^ 

ed from the husband. The marriage and death of the h^ 

band being admitted, there is no question in the case, lb 

court are not to regard lands in the town of Canaan as i^ 

exception to the general ndes, which would apply, in oif 

the suit had been for lands in another town, nor was A| 

case of Truesdale v. JeflFcries,* which was cited i^ 

on the argument, decided upon the ground of such pL 

exception. Judgment for the demandant. . j.' 

* Report of the cafe of Trueidale t. Jcffericf , as read In |M| j 
the above opinion. This was an cjedlment for lands in CanaiB mdXW' i 
liain, (formerly King's diftria) in Columbia county, and was r — -* "^ 
decided in April term, 1798. I'he evidence was. that zS or 10 ' 
Che trial, the leflbr vras fai poiTelEan and continued therein aboivc 
that he quitted the prcmifes, and one Richmond occupied the 
returned again into pofleflion, and remained perhaps a year ; tkm a 
verfy arafe between him and one Knapp, when he quirted the pMBm 
Knapp entered, and remained in poifellion till his dcadi ; tbat Knt|^- 
in polTemon. Icavicg a widow and four children ; that the defcndiK ' 
ried the widow, and liad been feven or eight years in paOHIaii 
idTerlely. 'I*he plaintiff then gave in evidence the zA of scth 
and thedefendant the adt of sid March. 1791. The adt oTifSa 

liear and uneafineTs prevailed among the inhabitants of Klng^ 

reafoB of prc;cnccs ;hat the whole, or part of the lands, were vkuc, 



Hhiet Way against Elihu Career, adminis- 
trator, &c. 
8 was a canse in which the only question raisedj was 
)ed to die court without argument. RadcUff^ jus* 
jw ddrered die opinion. 

I fli a case on cerdorari to a justices' court. The er- 
iipel ky that the plaintiff below, sued in the capa^ 
' timmOratory and that the justice had no jurisdic- 
try aof a£lion in which an adnunistrator is a party. 
oesAilwas submitted by consent without argument. 
itttus of Wells V. Newkerk, executor of Per- 
HI point was decided against the jurisdifiion of the 
\ We coinsidered the a£l from which he derived his 
)sf^ as applicable only to cases in which the pardes 
iSistlieir own right, and not to those in which they 
il; 1ft maier drmt. It is unnecessary to repeat all the 
Is of diat opinion. 

tibc decision, (which was made in January, 1800,) 
, when passing the revised aA concerning jus- 
added a se£lion by which, in conformity to 
lidple of diat decision, they denied the jurisdiCHon 
jindce in nuts against an executor or administrator, 
ane nlent as to suits in their favor. From this it 
be mppotiti die legislature meant that suits in their 
D^lit be iostauned before a justice. But no such au- 
can be admitted by inference or implicadon, and 
O^it not to be construed to introduce a different 



court lut no 
Jurifdiaion la 

in Wells v. Newkerk, is not, dierefore, af- 
yjf diis'afl, and the rule continues, that the jusdce 
junsdiciion. For this cause, we are of opinion that 
at be reversed. 

ifar> »nd tineafmt &«,U was ena<5le<l> that the Intereft orrffht 

„^t* any liiid^ vriihia the did dlllridt, and not within any colo- 

^ftaold Q«it he lnif]»ehed, by reafon chat theiame were not be- 

M* The court dccidi4 that the conftrudUon of the aA of lySa 

iu itnoupred ooly to a Inislative declaration, that thofe lands 

t>e located; that th£ pofldBon of the plaintiff was of no avail, 

reil withom claiming title, and relies folely on his poiTeflion j that, 

We^urm c<)iidui^, be mdft beprcfumcd to hare renounced or 

\ hhp&^tftKti^, and aU claim under It, and (to ufe a common, but 

r t^ndtirin^ he waj to be renrded, ia re^edl id thcprcnUief, M 

Ju4|[m«aE fior dcicinnant. 






In the nunc of 
a finn, by a 
and mav be 
declared on a* 
the indt>r«>c- 
mei.t of the 

If a thcrlff levy 
•Q lands, he 
will be entitled 
to his f oU 

The President and Directors of the Manha 
Company against Ledyard & Ledyard. 

THIS case was submitted without argument. Rac 
justice^ now delivered the opinion of the court* 

This is an a£lion by the plaintiffs} as indorsees of a 
missory note made by Brown, Talbot, and Co. to the de 
ants for 488 dolls. 17 cts. and indorsed by them tc 

The declaration avers, that James Brown^ William 
bot, and John' Goodere, aHing under the firm of A 
Talbot^ and Co. made the note in question, the proper i 
and firm of Brown, Talboty mid Co. being thereunto 
scribed; and that the defendants being partners^ node 
firm of Austin Ledyard, and Co. indorsed the said nc 
writing, the proper name and style of the said firm ^ J, 
Ledyard and Co. being thereunto subscribed. Ti>t < 
parts of the declaration are in the usual form. 

The partnerships of the makers and indorsees of the 
and the making and indorsing of the same, as abof 
forth, are admitted. 

The evidence on the trial was, that Brown, one ^ 
makers, subscribed the note by the partnership finOj 
that Austin Ledyard, one of the firm of Austin Led 
and Co. indorsed the same with the name of that 
The question submitted by the parties is, whether tb 
dencc supports the averments contained in the declanU 

We have no doubt that the averments were suffic 
supported by this evidence. It was not necessary t 
forth, that one of the partners of each of the firmsy 
and indorsed the note in die name or style of the resp 
partnerships. Although made and indorsed by one o 
partners of each house, the legal eifed was the same 
it is in all cases sufficient to set forth a writing accordS 
its legal eSe€t or operation. We are therefore of 
ion, that the plaintiffs are endded to judgment. 

James Hildreth against Alexander Ellice 

THIS was an aAion by the plaintifl> a late she 

the county of Montgomery, for fees due on atiesi 

fieri facias, at the suit of the defendant against one ( 




Ij racation one thousand seven hundred and ninety 
testatum fieri facias issued in favour of the de- 
against Calvin Toung, dire&ed and delivered to 
dff, as then sheriff of the county of Montgomery, 
Tsed as follows : " Levy 7,500 dollars, with in- 
from the 24th of January, 1796, and 22 dollars 59 
cottSi besides your fees,'* the writ was transmitted 
pbintiff' in a letter from the attorney of the 
at containing the following dired:xons : << Inclosed 
joa an execution against Calvin Young, for a 
m of money* He purchased a piece of land from 
loBf situate m the east part of your county, near 
^ if my information is corrc£t. Your attention to 
ills '^'T^ oblige, your obedient, &c." 
die receipt of the writ, and before its return the 
levied on the goods and chattels of Young, to a 
HHni^ and also went to the land, as above pointed 
mif and made a seizure thereof } but, before the rc- 
r of the writ, the plaintiiF was requested to delay 
of die property so seized, the parties in the origi- 
having settled the said execution. The plaintiff has 
mdoii sdll in his possession, and has not returned 
aid the property seized by virtue thereof. 
lis statement of fads it was agreed to submit to the 
rbether the plaintiff is entitled to fees for the whole 
endorsed on such execution, or for any other, and 


i admitted that tlie value of the land seized is equal 

noimt of the sum ordered to be levied on the ex- 

and that Young had also given to Ellice a 
p to secure payment to the amount. 
tpvoti J. delivered the decision of the court. I 
i sheriiF is entitled to his full poundage on the 
&eA to be levied. The case of Alchin v. Wells, 
k may be regarded as an authority here, isdiref^ly 

The court there decided, that if a sheriff* /evy 
fi. fiu he is unquestionably intitled^to his poundage, 
3ie pntiei compromise befdte he sells any of the d)e» 
I ffiMu The Stat. 29tb Eliz. ch. 4. under which 


Auguft iSps. 

pou ndagc on 
toefum indorrrd 
thoHgh ic confe- 
queni^c of an 
amicable fettle- 

S Term Rep. 


ALBAKi; diis dedsion was madey and our z6t correspond m t 
Aagufti^. essential part, as to die phintiflTs right to poundage, 
ad regulathjg sheriflTs fees says, ** serving an ezecutioi 
or under 280 dollars, two cents and four mUIs per di 
and for erery dollar more than 250 dollars, one ent 
two mills.'' But in order to guard against the sheriiPl 
king poundage, for the sum contained in the bodyc 
execution where the jud^ent is upon a penalty (as i 
present case) or where he is not able to find property 
cient to satisfy the execution, the z€t further dec 
•< The poundage on writs of fieri facias, and all other 
for levying monies, to be taken only for the sum k 
The true constru£iion to be given to the a£l, I think is 
where the sheriflF proceeds to sell, he is entitled t 
poundage only on the sum a£lually raised. And v 
ever the plaintiff interposes, and a compromise taket] 
he is entitled to poundage on the sum realized by die; 
tiff, or that might hiCve been colle&ed from the pro 
levied on. To sa/that a sheriff should be eoAM 
poundage where a compromise takes place, would be 
ifestly unjust. He may have incurred all the lisl 
responsibility, for the safe keeping of the propertyi ; 
will then be in the power of the parties to deprive 1 
compensation for it. It may be said, there is n 
whe^e the levy is on land, this may be true i but it 
eerv^ble, that perhaps in nine tenths of the cases, A 
ney on executions is raised out of personal pr opeit ] 
the a£l makes no distinction. Suppose on the very ' 
sale, and before the vendue commences, the dJefi 
should pay the sheriff the money, would he not h 
tied to his poundage i and I can see no material diitii 
whether the money be paid to the plaintiff or the dm 
that stage of the business. Cases no doubt may be.i 
sed, where the sheriff will receive more than a valuaU 
sideration for his services. But I think much less in 
vnll be done by adopting the rule I have laid down, ti 
say the sheriff shall be deprived of all his poundages 
ver a comprimise take^lace. 

Livingston, ju^ice. I cannot concur in the 4f 
j jist given. It is only on the sfrvice of a fieri faciasi d 



iiCDijdbd to poundage, and as the senrice is not com- 
■tS an afiual sale of the property, he cannot until 
tie any right to this fee. Nor is there any greater 
p. in tluSf than in countermanding a writ against the 
before senrice» in which case the officer loses lus fee, 
CBttf bare been several times to the defendant's house 
ilium. Unless the legislature have by expressions not 
aiswlentood, allowed poundage in cases of this kmd, 
mli lefiise it, as it will lead to great oppression, and 
mud in many cases will be very disproportioned to 
rnee. An angry plaintiffmay instantly afteY judgment 
m cucution for no other purpose than exposing the 
Int to this expence, although he may have every rea- 
Uiefe that, the latter intended shortly to pay. the 


she would be under no temptation of doing, if the 
taay time previous to a sale could protedi him- 
; charge. But it is thought bard to permit 
rteerto settle after lands have been seized, witliout 
-the sheriff his whole poundage. This supposes the 
I of land, or taking them in execution, to be a work 
BWBse labor and trouble. The truth is, that lands 
ton advcrused without the sheriff or his deputies ever 
(dienia and the trouble of an actual seizure consists 
a riding to the lands and proclaiming that he takes 
[a execution. And yet, for this paltry service, not 
to that of arresting the person, he may be entitled, on 
J judgment, to a most enormous reward. If we do 
dee the proceeds on an a£lual sale, our only guide in 
idng poundage, how shall we ascertain, the value of 
EOperty seized ^ or who can say, that on a second sale 
ralue would have been produced; and if we allow the 
FpoQDdage here, as a quantum meruit for his trouble, 
■Ot gnre it to him if he seizes land by the plantiff's di- 
n,.vliiGh, as is often the case, appear in the sequel 
belong to the defendant, or to be previously encum- 
L.teitfr full value. 

anring Aen little, if any doubt as to the intention of the 
ktnre^ who appear to have expressed themselves with 
ttCBCWB^eaioni not only by restricting the claim of 





mrifiDg from a 
Jettifon ii to be 
for, though it 
hippcn to pe- 
riihable arti- 
clet, which are 
CBumrrated Mn 
the memoran- 
dum, and re- 
main in cpecie. 
Freight and 
vefiei are to be 
cftimated in a 
general ave- 
rage, as they 

poundage to the aBual service ol an execution^ but bjr 
daring that it shall be taken only for the « sum levied^ 
in other words, the sum aAually made or brought into co 
I diink the sherifF not entitled to poundage for the laadi 
ken by him, on the execution issued in tlus Qf 
case in 5. T. Rep. 470. it is sufficient to say, that it is 
binding on us, and that the reasoning of the court neithei 
tihiiea me of the propriety of the thing, or that we hare 
power to make a provision for sheriffs different from 
prescribed by tlie legislature. 

Maggrath and Higgins against John B. Chup 
THIS was an a£lion on a policy of insurance, in vh 
on a special verdid:, the following fa£ls were found. 

« That Le Roy, Bayard and M^Evcrs, of New-Toikj 
agents for the plaintiffs, who were merchants in Madon 
a policy of assurance, dated the 10th of September, T 
insured 5414 bushels of Indian com, 4000 pipe lb 
4000 hogshead staves, and 2500 quarter cask staves, f 
New- York to Madeira, on board the snow Ann and M 
Peter Murphy, commander. That the prime cost of 
com was 2982 dolls. 98 cts. of the pipe staves, 170 d 
31 cts. of the hogshead staves, 95 dolls. 50 cts. of the q 
ter cask staves, 31 dolls. 12 cts; that the freight for 
com was to be 550 pounds sterling, for the staves, 
pounds, and that the plaintiffs had an interest on boarc 
the amount covered by the policy. That there was a me 
randum in the policy, by which it was agreed that salt, g 
of all kinds, Indian meal, and all other articles perishabl 
their own nature, should be warranted by the assured 
from average, unless general. That the vessel, being ^ 
fitted for sea, sailed on the voyage insured, on the 17t 
the same month ; on the 21st, encountered squally wea 
and heavy seas, which continued till the 26th of the s 
month, when, about 1 o'clock P. M. the wind blowing 
olently, suddenly chopped round from K S. E. to W. 
W. and laid the vessel on her beam ends, in whidi sitna 
it became necessary for her preservation, and that of 
cargo and crew, to cut away the mainmast. That in dc 


Wit k splintered off at» and below the partners, tearing au^^bI[' 
{■If die piece of cloth called the coat, which is nailed to ^^^^^^^"^^ 
fe deck and mast, for the purpose of keeping the water ***B^,*°* 
OB mnmng into the hold. That in consequence of this, knu^hurch 
I die sea made a free passage over the snow, a vast quan- «_— — 
cy of water continued to rush into tlie hold till the stump 
E die mast was cut off, and a new coat nailed over it. That 
luioccaped about an hour and a half, when tlicre were 
Qond ibur fieet water in the hold, though one pump was 
ontinnaHy going, the other having been carried away in 
he &D of the mast, and totally disabled. That the vecibcl 
aboniiag much with a heavy sea, it became necess.ary, on 
htifikf to ease her, by throwing overboard about lialf the 
taies, which was accordingly done. That the weather 
■riif moderated, the snow was found to be in so disabled 
I litaadoii, that she was obliged to bear away for the near- 
it pan, diree of the crew being crippled and sick, and the 
apfcna*s leg very much bruised. That, on the thirteenth of 
DSoher iollowing, the vessel got into the Capes of Dela- 
mtf and on the seventeenth of the same month, arrived 
tNev-Castle. That there were not to be procured there, 
iq ttOMS to unload the cargo, nor any assistance to obtain 
repars, and that the yellow fever tlien raged both at Wil- 
mington and Philadelphia. That on the 25th or 26th of the 
ume October, Le Roy, Bayard and M^Evers, received in- 
fannatxm of the vessel's being at New-Castlc, and of all 
the antecedent circumstances, which they instantly commu- 
Biolcd to the underwriters, and abandoned. That the vcs- 
idkf at New-Castle till the yellow fever abaitxl, and on 
die SOdi of October, went up to Philadelphia. Tj;at on the 
ibndonment, it was agreed that Lc Roy, B«iyarJ, and 
ViEven, should send a clerk to New-Castle, to take charge 
tfdK cargo belonging to the plaintiffs, for account of 
vkaik might concern, without prejudice to the rights of 
nhcr party. That the vessel arrived at Philadelphia on the 
3Wltf Obober, the day she left New-Castle. That, on 
tthfing the cargo, it was found so damaged as to be whoU 
If iwiierchantable, and that all the damage sustained by the 
M^ VMf occasioned by, or in consequence of the cutting away 
^wmti^vAkb was done for the preservation of vcssel^car" 


iu^'^^t f^ •'' '''*^* '^^ ** articles msared^ excepting such 4 
' were qeded, were, by consent of parties* sold at Fiiih| 

_ delphia, for the benefit of those who might be 
MnBCbirch "** produced, after dedufting charges, 924 dollaxiH |ririi| 
J sum was paid to the owners of the vessel, for frd||^ idf 
pursuance of an award madebj arbitrators chosen fioc dM|( 
purpose, but die defendant was not a party to the iidni|| 
ston. That the Ann and Mary was repaired at Philadc^U|j| 
and ready to take in a cargo on the 28th of Norembetv ||| 
as no com of the kind of that before purchased, could bp. 
obtained, it being flint Jersey com, the voyage wai pni 
up, and the vessel returned to New-York." ..^ 

It was agreed that if, in estimating the general mfngt 
ibt freight of the cargo to Madeira, ought to have bem 1% 
ken into account, and fiot tie freight affualljpaid at lUM 
delphia only, then an alteration to be made accoiidia|^ ji 
the sum to be recovered ; and, that if the assured wtn Ji|; 
bound to look to the owners of the vessel, for the pn|t% 
tion to be borne by the vessel, and freight, then the km% 
be considered as total. . .. ^ 

On the preceding fafls and agreement, a case wn H% 
served for the opinion of the court, whether the undervdr. 
ters were liable in any, and what degree ? 

In a former trial on the same policy, in which Le Rfl)^ 
and Co. were plaintiffs, the abandonment was, bydei|C|| 
cial verdiA then given, found to have been made «Mf)^ 
the vessel lay at Philadelphia, where she could have ban 9^ 
paired for less than half her value, and the questioii tf d^ 
time agitated between the parties was, whether di6, 
being damaged more than one half of its value, 
ceptible of abandonment, and the underwriter ] 
or whether he was proteAed by the words of the j 
dum ? It was contended that he was not, because thnjpjjjS 
plied only to average losses, and not to those which imj 
like the present, totaL "jij 

In support of this idea, the authority of the French iqf^ 
ters was relied on, but the bench decided, if the ^^^Sk 
insured be in existence, there cannot be a recovery. -^^ 

However, there being still an average occagoncd^AH' 
the iettison, for which the assurer was bound, it hMm 


IT to Rtde ^bai % but, before it could be adjusted. ALBANY* 
bdantdied. a^^^^^i. 

bduced the present adion, in which the point fir:it 
Kris ^ivs^ to be decided. 

ini, for the plaintiffs, disclaimed all intention of 
bing die former determination, but distinguished 
t mm before the court, from that which they had 
If a^odged, by remarking on the diversity of the 
1% V IP the periods of abandonment. He now made 

\ die plaintiffs had a right to abandon, whiKt 
I at New-Castle, and had exercised that right. 
t even if they had no such right, still the lo js be- 
by the jettison, it was to be paid for by a 
, and therefore, the underwriter answerable, 
a tenlBd and acknowledged principle in the law of 
IQI^ Ait whenever the voyage is lost, the assured 
q^lD abandon, though the article remain in specie* 
a|f «.Newnham, Park, 168, 9, 2 Marsh. 505. 
edm as well in cases of perishable article^ as in 
At. M< Andrews v. Vaughan, 1 Marsh. 150. For 
Rimy •* free from average," &c. does not destroy or 
^f^^tD abandon. It only regulates the cases in 
eonpeMidon for average shall be claimed. Upon 
rioc^iks, It will be barely necessary to examine the 
AfloaSf and see how fully they apply. The vessel 
B widi her cargo into a port, foreign to, and out of 
rfie«f her de^ftination ; on hearing of this, and her 
Intel an abandonment instantly takes place. The 
Fdbe patties was then compleat-, the voyage could 
pnaecoted, and it was impossible to know how long 
i^aeiCyto pursue it would continue. This would 
be abandonnient then^ and then the right of the a:;- 
nAI ascertauned. This did not depend on the mc- 
hm I die court, therefore, will see this is a case 
ttb eSeft of the memorandum could not apply. In 
kAietew a memorandum, yet it wa$ never heard to 
I dB to ^ uce in a lo^ arising from a peril of the sea 

in^ttft voyage. 

^ Dd 




Aug'Jit 1803. 

Mannth and 


John B Church 

The ve«"-el arrived at Wamington, where there ^ 
store>, no possibility of repairs, or of prosecuting 1 
age. Safely, then, may we say, with Lord Mansfic 
** by a peril insured again t, the voyage be lo^t, A 
«* red may abandon." Because the cargo is comp 
perishable articles, is it to remain for ever at the 
the underwritten ? Has he no right to abandoiii : 
for indemnification ? It is presumed that he haty 1 
the court will say he is not bound to wait for ai 
ual change of circumstances. If, in the case of all 
go, which may be taken off in two or three days^ t 
now contended for, exi^b:, and the assured inmiedi 
receiving advice, may abandon, will he not be entk 
case like the present, where the vopge is broken up i 
ly thi.^ will be considered as a case within the spirits 
ter of all the rules of abandonment. But admittiiy 
b not to be supposed) that the court should be of a 
ry opinion, we have still to rely on the second pool 
have taken. That this is a loss arising from a gem 
rage, and we therefore, in that point of view, ent 
recover. The special verdift finds, that the vessels 
gale? of wind, which laid her on her beam ends, in 
quence of which she was obliged to cut away hi 
That in doing this, the cloth round it, called thecc 
torn away, and considerable quantities of water nisi 
the hold. ThatyVcw t/jis arose the injury to the oc 
that it was in consequence of cutting away the mas 
pre ervation of all. What is this but saying, in •< 
wordsy that it was a lo-s ari.'^ing immediately from d 
son? If so, we are entitled to recover for the whoh 
injury attributed to it. 

It is not the mere article thrown overboard, that 
made good, but every thing is to be compensated I 
receives injury in consequence of the a£k dcnie 
preservation of all. Abb. on Ship. 278.* TheidSc 
finding is conclusive on the fa£l, and the law is but: a 
sary consequence. But, this very circumstance is tio 
ged as a reason for a new trial at least, and a quesdi 
be made in the present discussion^ whether the jorj 

* Sec. X Lex Mer« Amcr. aji, 7»6. 



imonj given, were justified in finding the effe£l of 
ison. It was no doubt proper for tliem, because 
ust be submitted to their determination. There is 
T cause suted in the evidence which can accouni fur 
n^e, but the jettison itself. Tlie vessel was not 
nor was there any injury before. There is then suf- 
. Mtod feo ascertain the origin of the damage. Hav- 
MtWIoiethem, and nothing else, to which to attri- 
the ioM, they had a right to infer tlie whole, occo- 
1 by the jettison, made for the preservation of vesoel 
vpi That there was evidence adduced, that tliere 
ipenon who had spoken to the captain, who had toid 
ife damage was principally owing to the jettison, is 
niaL They ought not to have been influenced by 
hesony. The captain himself ought to have been 
nwd as to other causes ; and what does he say ? ihsx^ 
lopnion, the jettison was tlic principal. It is impo:^- 
(0 ibcriminate between tlie same damage occasioned 
W causes, and that which arose from the jettison. 
I dedantions ought, therefore, to be laid totally out 
r. The court may well imagine the captain mistaken; 
vi& be warranted in saying, there is no adequate cause 
leA Cor the damage but the jetti.^on, and that the jury 
eipresslj found. The court will do well to consider, 
r ought toenter into niccdisquii^itioas, where cause suf- 
u suggested. There is no rule of discovery in thcae 
If the party shew suincicnt cau-e, the jury ought 
diey cannot examine every trilling injury, it is suf- 
tdiat this is the greatc<it. Will the court, on mere 
y, open this cau-^e, having no document to discrimi- 
iatpart was injured under the policy, and whatnot? 
vas not the other side prepared to shew the quantum ? 
ad equal opportunity witli tlie plaintiffs : ive have 
abtolule evidence to satisfy the jury that the injury 
bom the jettison exclusively \ they rely on mere hear- 
ne. If then the lo,s is the result of a jettison, this 
sea general average, and accord iiv^ to the statement 
: TM^fif ' the court will be of opinion that x\vi parties 
iddedtolook for their proportion to the umicvwriters, 
ot to die owner. This, tlien, amounts to a t'ui loss, 


Augult iKoj. 

Ma-;.nth aud 




j^^VV, te kappean from the asks at FUkdel^iiaiy that 1 
/ ties have lost the whole of the subjei^ matter of tl 

"" Eance. 
lohnB^^iiiirah Another question unll then be 0iade> as to the 91 

. which the average ia to be computed. It will be coi 
that if the average b general^ another rule than that b 
we have been guided, ought to be adopted. It I 
settled, by estimating the articles according to the i 
die ship on her value as it then was ; and the freigh 
amount to be thm paid. It could not be taken at 1 
due in Madeira^ iot she had not arrived. It is tbei 
be charged with average on the amount then earned 
the arbitrators gave, and is the sum to be paid: tbc] 
regard to what ought to have been received in I 
They say, what the articles sold for in the mailnti 
right, and that you are to have. But this was tt 
agreement, that what was done, should w<»rk no 
and not to be as if taken on account of the propriets 
cargo, but left with the owner of the vessel, rncvd 
freight, and therefore as if on his account. In actt 
average, he is allowed what he would have been 
to where the com sold. On this ground the cal 
was made, and this is to be considered as the just n 
these reasons, we conclude that the party had a 1 
abandon, and that there was a total loss. If the o 
the matter in the same light, there will be no need 
sider it in any other point of view. Should they dc 
not to be a case of abandonment, and that we are 
to take to the subje£l ; then the average, as fixed 
jury, ought to prevail, by rating the freight a^ xs 
and the com at the invoice price, not as it would ha 
at the place of destination. If the freightfis thus t^ 
mated and averaged, why not the com? If not so, \ 
go would contribute more than the freight. Bi|t 
events, as the loss of the com is clearly a general a 
the court will say we are entitled to recover as fiv 

Pendleton contra. Before it can be known whet] 
case which was argued on a former occa$M)D U 1 


»Art ncnr befoie tbe court, thty will advert to it j^^im^^u. 
vill CBly take a abort review of it» th^ will perceive 

V agitated presents the very same subjedl as to the ^^'f^^^ 


» abandoRy with some slight differenoeSf and a tri- ^' 

in the arguments and points. The q»ecial 
; tt dna da7» only states the abandonment to be a 
idhr, and in all other respe^s the testimony is tOi^ 
%t^ The defendant contends^ that this is not such 
of mA loss as will warrant an abandonment. For 
;jriioaoothe former decision of thecourtj in Le 
ftfvdf and Mc. Evers v. Govemeur. The next 
m flb whether the plaintiffs are not entitled to re- 
ktwbofe amount of the subjeA insured as fora total 
that they have a right to recover for a 

et the inquiry will be» what is it to be made 
|HMnl average is the contribution for that, which is 
sad far Ae preservation of all. If the loss be appli^ 
mkf laone^ k is a particular charge. It must have 
r the gcoeial benefit, and have had tbe efie£^ of 
: fer if by e}eding, goods be saved from one stcvm^ 
St ia another, they will not pay average, because 
we «ot been saved.* The questkm ia virhether the 
vibe e( die com is to be brought into the general 
SL The fa£b stated in evidence, as conne&ed widi 
Bcai viCRlift, do not warrant the conclusion that all 
sage arose, as an inevitable consequence, from cut- 
ray the mast. May not the injury be attributed to 
r caoae i did not a witness expressly testify from 
rfsBsion of master, mate, and crew, it was only /rc/i- 
'aad not mchuively owing to the cutting away, that 
II was injured i He was examined, for no other pur. 
hm to prevent the conclusion of the jury as to the 
if damage. On the former argument it viras never 
imi^ that dM com was to be made a subject of gen« 
This was an after-thought; an ingenuity 
i to add the value of the com to the general ave« 

I it could not be recovered in any other way. 

l%Mb%cfii««d from the fecond peril, ther Ihall eontiibute for an 
■jSkh hM liM^ from a firft danger, the* the (hip be loft ia the ft* 
Ml iXsa ytm, Amw. sjo. and the authoiidet there. 





Mafgiith and 


John B Church 

Therefore, £he injury is now made an immediat< 
quence of catting away the mast, and then the rul< 
applies as to consequential loss, and right to cent 
But the verdict shews the storm had been making i 
over the vessel long before the mast was sacrificed, i 
is no evidence that the vessel did not then ship so 
ter : it is impossible she should not. But if the inj 
arisen from and in the manner stated, does it con 
the position of counsel ? According to this, every ] 
consequence of cutting away, is to be a matter of 
average i and, if so, every thing, however consei 
will be a loss within the meaning of th e term. S 
captain, after a necessity to eje&f be obi iged to 
part of his cargo, if he place it where it receives < 
there would be a loss,* and it must be considered ai 
average. But supposing the com to be con« 
general average, it is doubtful how the calculation < 
be made. The whole value is now considered 
This surely is not corre£):. Goods, even that are 1 
to contribute ; not all however in the present case 
because there was to the amount of 900 doUax 
This must be dedufled from the amount to be 
into average, and ought to be taken from the cos 
port of shipment. And though this was given for 
yet it was no more than might be due, for the vet 
found to be able to proceed on her voyage, and si 
underwriter is not obliged to pay the amount oi 
as a loss under the policy. 

Hamilton on the same side. It is obje£ted that 
timony, which goes to controvert the conclusioi 
jury as to the cause of damage, is only hearsay. It 
well worth while to consider by whom it was addi 
was by a clerk of Le Roy 8c co. sent by them as an 
who rebted what their other agent, the captain, hi 
he him.- elf did not testify. This therefore was the 
tion of their own agent, produced by themselves : 
tainly from them at Uast, entitled to credit. He I 
damage ^zs principally owing to tlie cutting away th 
the inference therefore is, it was not wholly. The ti 
are not convertible, the one into the other. They; 
* Though coDfe^uentialY It would not be immediately ft. 



dttms b termsy the jury having no other data, from 
ODe to infer, must certainly have given tlieir vcrdidl: 
■St aQ evidence in the cause : it is impossible the jury 
d have drawn an inference, from any fads there. 
K^oUff it must be acknowledged, is a vague term, but 
igitxfes the idea of wholly. It permitted the adoption 
(ome kM8 from the cause alleged, but did not allow at- 
ufing die whole. In my opinion, a bare majority of the 
fefi, a iitde more than half, could be intended under 
: vic«^ How then would this operate ? It is incum- 
C on a ^aintifF to render a subject precise. Where he 
DO^ it t^ms to his own disadvantage. There h no 
lioD of fa£ls. Principally is, in law, the greater part. 
« is no criterion for the jury to decide except the word 
'itiBf^ which leads to no conclusion except something 
e dm half. It is of considerable importance in the in- 
ipdon of causes, as it relates to truth and justice, that 
nnch latitude be not allowed to vague inferences. This 
1 aeates a disposition in the mind to draw conclu ions 
■ncertain premises and is a reason why we should 
ne it to strict dedu£lions, and adopt a rule for it to 
m lUelf. Inasmuch as there is no datum to deter- 
t die fack, of how much, beyond half, was injured, 
law will intend ju<.t more than half, and nothing less. 
iD not be permitted in the face of evidence that it was 
ilioDy, that it was a little more than half damaged, to 
that it was wholly and entirely so. When a person 
faiows how much, pronounces principaJly, shall a jury 
Mlf I are there any facts in the special verdict from 
n the jury can draw such an inference ? From the 
oftfaemoBth to the 26th, tlie vessel was in a course 
nn*. Can this have produced no injury ? A duration 
edays bad weather ? Though po .siblc, it is not probable 
dbould have been the case. Then comes the jettison, 
in the witness says, he believes the principal part of 
nnage took place. But was there not something suh- 
1^ £rom which the injury might be supposed to pro- 
There was another storm from whence it is impos- 
^ injury should not have been increased : it could 


Angiift iSoj. 

Manrrath and 





ALBANY, not lunre been repaired. If what took place tiie wot. i^ 
v^^v-^^ was the consequence of catting away the mast, wiiki 
Mi^n^ud |]^ wotAprincipaUyf I most difier from the counad «m 
dated with me» whether some of diis io}iiry be net aflih 
]tQt of compensation. That which was immediatoi at j 
I conceive, to be contributed for. I MoL b. 2. c&a. 7 
not however to go further than what diredlly ensacb .Bi 
as there was another tempest immediatety supenreoiiig hi 
impossible to calctdate the quantum of damage ibomi «i 
the quantum in the other, so as to ascertain the i 
which was immediate. In an interior view of diis 
jury appear to have lumped too much; to have s 
what might be attributed to precedent, and to wA 
causes ; it is impossible to say the jury did not vatar Al 
second tempest. The fads do not warrant tfadr . 
sion, and therefore, diey had no sufficient basis ^ \ 
the captain's own declaraticm, that the whole injmywaaail 
from die jettison. He had every thing under his cy% ■! 
therefore must be the best judge whether all the dattfl 
arose from the first tempest. If the court tidiik dMj 
the matter must be reviewed, they certainly will noC saf d 
when the party by his agent says the reverse. Ll < 
case like this, the master is agent for every one ( 
It is not a case of total loss, in which he is the agent of Al 
underwriter : in average losses he is the representative Ml 
deputy of each party insured. He has a duty to puifam 
and is responsible to them for its discharge. He is 10 ori^ 
le£t the proportion to be contributed ; from each his CM* 
tributory share. He is bound to make this collefikki% wk 
then distribute according to the general avenge : V»A 
liable, if he parts with the cargo, before the contrilnttiflfti 
settled. The result then necessary is, that the party ]Hfil( 
a claim on him, must have recourse to lum for ^ 
rage, and call on the underwriter for the ub 
That is, the difference between the injury su 
the sum he is entitled to receive from the defendaac^fli^l 
suit. On the one hand the owner of the caigo haAt^ti 
ceive for the injury done to the com, on the other ( 
of the ship, for the injury done to that^ It was a i 
U£k of mutual contribution. The owner of the goodSf«M 


fdta discount) so muchof his demand against the owner jj^'^^^' 

isUp^astheownerof the ship wasentitled toreceivefrom v^^ ^-^^ 

and cannot ask the whole loss from us. Suppose he ^'giJJ[in,"* 

lieht tt> receive more for the com lost, than he was , ^ ▼• ^ . 

^ ^ John B Church 

1 to contribute for the injury done to the ship? He ..«_^-«_ 

Qtcome against tlie underwriter for the whole of what 

Id be due for the damage without this set-ofF. What he 

to TCCCSfe might be less than what he had to pay ; can 

ive Rconrse to the underwriter for more than he did 

i Oi a total loss the underwriter is to pay a total loss; 

ta partial loss ; and, when there is a general averagef 
I ascertained on a just calculation among all the 
09^ For the assured ought to recover only the amount 
le loss occasioned by the jettison or other di^a^ter, af- 
ffcfting what he was entitled to receive, in contribu- 
frm die other parties concerned in the vopge. The 
BTviiler ought not to pay, when the assured has a sub- 
flAwUchhehas a right to claim. From the insurer 
igiit aot to recover, when his agent has in his hands a 
lefiom whence it is to be taken. As to the arbitra* 
die defendant was no party to the submission, and 
etioK was not bound by it. The right to abandon must) 
lie prindple of Le Roy and others v. Govcmeur, be de- 
. As -die value of the com was not less than the 
;h^ diere could not for that reason also, be any ground 
budoning, especially as the vessel was repaired and 

I wiUing to proceed. 

I in reply. The former decision in a case ac- 
iM ged to be under this policy is greatly insisted on. 
lb not essentially differ, the court would not now 
When that was considered, the point now 

, as to a total loss never arose. The question then 
iwaSy whether an abandonment could be made un- 
fanoistances very different than those whicli now pre- 
iWDSchres? Here the a£l was justified from the local 
Ancif the subjed. 7%^^ the ground was tliat being 
loie than half the value, the party was cntided 
• The court must recoUeft that in Le Roy, v. 
die plaintiffs could not give in evidence die 

i-die abandonment was made, tbej cnlj being able 

Jobn B Cbarch 


'^^^^^»''^« to do it. and as parties to the record^ inadmissible. Thl 
^.^^0^^"^^' tune i:> not unimportant^ as on it, may depend the ngot tM 
*^^!Stot*°^ the party to a total or an average loss. For instance^ s«p 
BChnreh P*^*® * captwc, and the assured, a day before he hem.«i 
the yes eU' safety, abandon? It will be good. If he debf* 
ed till after receipt of die information, it would be an 
The court will never say, that an abandonment made 
die party had a right to abandon, shall be impesdied by Afl 
memor.<Ti Jum. It is not contended that when die nmd 
was at New-Castle, she could have been repaired^ or shim 
bad, or that the cargo could have been conveyed to ks fkoi 
of destination. At that period then it clearly was a totjdlsMi 
Had the assured lain by, it would have been odierwiim 
but they did not; they took immediate advantage of tkric 
right, which did not rest on the memorandum, batoodw 
right to abandon. Goss v. Withers.* -' 

The principle now contended for is, that whatever di 
cargo may be, or its situation the right to abandon, ttVPi 
the loss on the insurer, and this point is not the one decM 
by the court. 

The former consideration was, whether a detcriortfifiii 
to more than half the value, authorised an abandonfooill 
The consideration then turned on the distinftion beCveil 
the laws of England and France on that right. On dil 
point both parties are agreed. But one question nmr i| 
whether this case ought to be sent back for examidatMB H 
another jury? They were not to be bound by the fthlMl 
of hearsay causes, said to have been acknowledged hfi^ 
captain and others. They had fads before them, and bm 
them they were justified in attributing the damage loii 
ther one cause or the other. Are dierc not fadls in tbr QVi 
from whence a jury might say the loss arose from the jitt 
son.^ There is nothing from whence they could infer k 9i 
tecedentto the cutting away the masts. Allowing aH 4)1 
has been said respe£ling the word principally ; that k 9t0^ 
exa£lly a little more than half, the jury have decidedan A 
credit due to it, and they have not thought it enoi|^...|| 
outweigh the evidence of the damage, arising sMy, faf 
the jettison. They find the cutting away the mast niMi 


nirtlie praservationof all, and the injunr was an im- ^^^t^* 
■Mi me& consequence of that cutung away. This 
nildeaii^ a loss within the meaning of general average; 
ihmg of the whole, is a total loss. But here it is said 

I no right to look in the first instance to the insurer i 
from the captain and others, and then apply 
> tls ■ritiMiiiter for the balance. Is it not however a loss 
umditpciBsof the sea, from a general average arising 
It of tboir perils? And will the court turn us round from 
M wonkof our policy to the captain, because it is said he 
ai a Kb OB what was to pay us, and being our agent ought 
»knotliBs applied it? Can he justify holding the ship 
Bde owner of goods ejeAed, be paid? If he has not this 
iov over the vessel, ncitlier can he detain the cargo, 
■ppoie my goods thrown over board, the owner of the 
endabaakrupt. The captain does not perform this duty, 
■d ifaenid by his assignees on her arrival, can the under - 
niton ny you must look to the o\iiier, the casus foederis 
imM taken place? All that can be done is to substitute 
bemidawriter in our place, and he will liave a right to u>e 
V names in the prosecution. It is from him we have to 
nps£k fadbfaftion. The court will find the principles on 
riuchdieoontnbutionhas been settled to be corre£l; as 
W loss is of the whole, and as that is to be contributed 
faryvecootendbothon the right to abandon, and on the 
ttdBd mie of law in cases of general average, that we are 
*ttkd to resort to our policy, and leave the assurer to re- 
abvM hknself from the others. 

hs cnriam. Delivered by Kent, justice. This cause 
nsibtfore the court upon a special verdiS}^ which states 
ht Le Roy, Bayard and Mc. Evers, on the 10th Sep- 
iikr-l798f effed'ted an insurance on goods on board 
k Am and Mary from New- York to Madeira \ but it was 
IMl by a memorandum, to die policy that salt, grain^ 
fWlMif Indian meal, fruits, dry fish, and all other 
HabSf perishable in their own nature, should he free frotn 
Ml|p wdiii general. That on the same day, defendant 

lAe said policy for 1000 dollars. That the above 
by Le Roy and others was made on account of 
k phiitiffiij who had an interest in the cargo to the 


A?^R ^'te ^™^^"^ ^f ^ sum insured. That the cargo shigped I 

v^-*->v^i^ Le Roy and others on account of the pbinti^ consist^ i 

^SSSi*""* ^*^* bushels of Indian corn, the first cost of whidi W8 

John B Church ^98^ dollars and 98 cents ; 5000 pipe stavesy Hie bst cok 

of which was 170 dollars 31 cents ; 4000 hogshead 
at 95 dollars 50 cents j 2500 quarter cask staves, at 3 
dollars 72 cents, for the freight whereof the master ws 
to have 550 pounds sterling for the com, and H8 pound 
for the staves. That on the 17th Sept. 1798, the fieiM 
sailed on the voyage with the said cargo and was seawor 
thy. That on the 21st of Sept. she met with squdsoi 
rain and heavy seas, and the leather continiBi^ bad oi 
the 26th and blowing violent, the wind suddenly cheppd 
round and blew with such violence as to lay the vesid oi 
her beam ends, and the mainmast, masts and rigging wof 
necessarily cut away, and after the vessel righted, dM 
were four feet of water in her hold. That while die ic» 
sel was in this distress, and the crew were engaged in cHi 
ting away the mast, and nailing a coat over the 
(which occupied about one hour and an half,) 
water rushed into the hold and over the decks- Tint ofi 
the 27th, it became necessary for the safety of die TesMl 
to throw overboard one half of the staves. That the it^ 
6el was obliged to bear away for the nearest port, and H 
arrived at New-Castle in Delaware, on the 17th of Octobflb 
That at New-Castle no stores could be obtained to land ik 
cargo, or assistance procured to repair the vessel, and dtf 
yellow fever raging violently both at Wilmington M^ 
Philadelphia, she waited at New-Castle till it abated^ wtai 
on the SOthof Oftober she went up to Philadelphia. Thitfll 
information of the above losses, the said Le Roy and odm 
on the 25th or 26tli of October, while the vessel wH 
at New-Castle, abandoned to the defendant. That Oil 
discharging the Cargo at Philadelphia, die com was btd 
to be so much damaged as to be wholly unmerchantaU^ 
and unfit to be re-sluppcd •, wherefore the voyage was giifiP 
up, and that the whole of the damage diereto arose firomcfl^ 
ting away the mast as aforesaid for the preservation of •* 
vessel and cargo. That the cargo saved as afuniWiA 
was sold for the benefit of those interested and prodv^ 




I ifcr Mining charges 924* dollars, which sum was paid 

isik owners of the vessel for freight, pursuant to an award 
• vtich however the defendant was not a party. The 
mtad WIS repaired at Philadelphia, and ready to receive 
kr CBgo OD the 28th of November. 

The qMstions arising upon this verdifl are, whether the 
]ibiflliff ought to recover for a total loss, or for a general 
mnge, or a particular average ? And if the plaintiff is en- 
lided lo leoofer as for a total iosSf the jury assess their 
^OPgCi Co 12S 1 dollars 54 cents. If for a general average^ 
far the loss sustained by the injury done to the com, then 
to 909 doDan 69 cents. If neither, then to 237 doUars 51 
mfik And the parties agree, tlut,if in estimating the gene- 
wtlmtntgei the freight of the cargo to Madeira, ought to 
Je wiiiMlefl, and not the freight adlually paid at Philadel- 
fha «(f| dien the sum is to be altered accordingly : 
»d Aey abo agree that if the pl^ntifF was not bound to 
hkitAe nvuer of the vessel for the proportion to be borne 
ty die msel and freight, then the loss is to be coa<sidered as 
toCal^ if pluntiiF be entitled to recover a general average. 

The ooly evidence on the question is, whether the 
damsge Ae urn sustained was wholly or in part only owing 
to die cutting away of the mast. Besides the facls found in the 
wndEff, there was the deposition of a witness who declared 
dathe was informed at Philadelphia, by the captain, mate 
ndcrew, that the damage the com sustained was principally 
iaoQDsequence of cutting away the main-mast, and another 
foot was submitted, whether the verdifl was not in this res- 
pe&iapinst evidence. This deposition was admitted by 
ttmat as competent evidence. 

Tvo questions have been made upon tlic fa£ls stated in 

h Whether the plaintifFo be not entitled to recover as 
irt total loss ? 
t' tf not, then by what rule is a general average to be 

Aii|{uft 1803. 

Miggnuh ind 



John B Church 

'"Ihr first point was settled by tliis c^urt, in die case of 
. "^ifcyr Bayard f ist Mc, Evers v. Goveneur, 
' ^Mjt-ipon this same policy, and upon h&i substantially 
The question was on the construdion of the 

That case J^"",VJj™' 


ALBAM Y» words ID the memoT2ndnmfJreeJr9m average unkts ^ 
^^^^^_j' and the court decided^ that to make the insurer haUe 
M^j^uul mutt be an adual destrufkion of the article specified li-th#b 
▼. memorandum, and not merely such a technical kiseflkiP 

^ article as would authorize an abandonment. Conieqind]^ 

as the com existed in that instance, the insurer waa not li- 
able for it, however deteriorated it might have been kj*dal 
perils of the sea. 
Park 1 14. i. This decision was warranted and governed by the CM 

Miiiar^59. of Cockin V. Fraser^ which was a strong and unininniw 
Hm^'^'.g. 3. determination of the court of King's Bench, upon a oil 

reserved on the very point in question. In that 
surance was upon a cargo of ^sh froni Newfoundland, ttt 
port of discharge in Portugal, and which was F^mm, (k 
the passage the crew hove overboard part of the fish, farit 
general preservation of the ship and cargo, and die lUpMI 
obliged to put into Lisbon^ which was upwards Kiieatbm 
dred miles from her port of discharge. It was there fioni^ 
upon survey that the fish were rendered of no valMlf 
through sea damage, and the ship did not proceed 00 hrf 
voyage. The court held the insurer liable for no mm^ 
than what he had paid into court as a general average et 
the cargo, and a particular average on the ship. Ifitk 
Mansfield observed << that the insurer was liable only ftr » 
total loss, and tliat the total \os» here was the loss of the ttf 
itself, and not anydamage however great while it exists. Thit 
in common cases njuhen the voyage is obstruBed and mtmmt 
pursuing^ it is a total loss. But the memorandum goes oittW 
ide? that the insurer is not to be liable for any damage bowcid 
great." Buller J. observed also ** that the voyage tang lU 
featedy might be very mateijal in cases not withix TSt 
MEMORANDUM." This dccisioH therefore goes the wMt 
length of settling that, although in certain cases a total W^ 
may be in whatever defeats the voyage^ and will authoriieif ^ 
abandonment, this will not hold in the case of petiddK 
articles within the memorandum. The insurer there k w 
cure against all damage to them, whether great or svm • 
whether it defeats the voyage^ or only diminishes the fiiKr f 
of the goods. The memorandum prevents the loss bomVr 

atj nd certainty. This difficulty would remain in 
Di^ iFtht law was otherwise, and the insurer was to 
I fijr damage to the perishable articles, when that 
t «■ so great as to occasion a loss of the voyage. 
mt 9bjtGt of the rale would, in such case, be de- 

^ die more particular in explaining the former 
ghring it my full acquiescence, from an im* 
I received at the argument of this cause, 
was not sufficiently understood, or that it 
iH desirable satisfaflion. The observation of 
in the cause of M^AnJmvs ^. Vaugban 
wUOf as it stands at present widiOBt ex|danation, 
1» the rule we have adopted ; for, he said the 
not only when the article was actually 
the voyage was lost. If by this ob» 
■i nemt diat the insurer was heM when the 
JoHf by some cause or peril not arising from 
«f the articles in the memcmmdum^ it is not 
f todK nile«ontended for ; but if it is to be under- 
»«Bteiidiiig to a loss of voyage, in consequence of 
V h oi pg fer great, to die aitides in die «iemoran» 
w4ire£Uy contrary to the decision of Gsflioig: v. Frtt- 

1 Marshall 150, 

I ^mnw%0y t t Ka 




ALBANY, of the Toyagei and therefore, neither this, nor die hrtanf^ 
'* decision, apply to the case of a loss of voyage from faijoiijft^ 
distinBfrom those happemng n the perishable artuUs^ suchi ft^ 
instance, as an irreparable damage to .the yessd. That' 
would be a loss of voyage in a case not mthin the Husmrmii^ 
duffif and liable to be regulated by other rules. 

As the plaintiff is not entitled to recover as for a tobl 
loss, the next point that arises for consideration is, ivlietlier 
the plaintiff be not entitled to recover a general aver^f m' 
fixed hy the verdiSl. ^ "l 

A question here preliminarily arises, and that is^ vhtf^ 
ther the verdiA be contrary to evidence in atatiii^ ibl 
<< the whole of the damage sustained by the com^ was mutiatli 
hyy or in consequence of the cutting away the mast ofihevetklf 
for the general preservation.'* -V 

To bupport this finding, the evidence was ; that in cH^ 
ting away the mast, it splintered off at and below d« pmi 
ners, and tore away a piece of cloth which was naiid W 
the deck and mast *, and, by means of the splintering^ 
the removal 9f the cloth, vast quantities of water 
to rush into the hold of the vessel, until the stump of A$ 
ma^t was cut off and a new coat nailed over the 
which occupied about an hour and a half; during all 
time, and for several hours afterwards, the water made jfr : 
free passage over the decks, and one pump was co n tii i M^^ 
going, the other having been carried away, and become iy 
tally disabled by the foil of the mast. In addition to dNUr 
fa&s, there is the deposition of a witness, who heari 
captain, mate, and crew say, that the damage the 
sustained, wzs principally in consequence of cuttiif 
the mainmast, 8cc. 

Upon these fads, I am not dissatisfied with the 
sion drawn by the jury. No other cause of dire£k 
to the com is found. The one stated must have 
injured the com. The injury was inevitable, and dm 
was suflSdent to have produced the whole effeff. | 
the conclusion a reasonable one. We are, 
consider the mast as sacrificed for the general safety, et 
•hip and cargo^ and that in the ad of sacrificing the fl 

■W4lJ.UJ!^$tt 5ipieceof »afetytotJ!MPWlt:w4Jk 
1^9 th9c)e^«^ equity, OiataUthe propca^mH 
W^4^V^^^!^^^''>^^tbjeir dtuspropoition to 
S»ir ISieplaintiff is therefore entitled to rocovcqr 
f av^t:^> for tjie losa ^uitaiaedby the injury 
~u, and two remaining questig^vs are oezt ta 

IS, whether, in the adfuanma rf <voera^^ thie 
I tJig cargo to Madeira ought to hanre been esti* 
I QQjc the freight only paid at Philadclplua, in 
think the adjustment^ as 'settled by the awardj^ 
1 ; for that the freight oBually gudtui, mreannd, 
I and not what the vessel would bavi earned if: MmrthaU467^ 
\ &o Madeira, ought to be die rule of conttibuif 


Abbott. a7S. 
East. Rep. lit 
by Lawrence. 
J. Park xip 

qaestion is, whether the totality of the C(»]^ 
to the pUuiUlSs, for the loss of his caroy is r«tv 
the first instance from the iasiurer* 
ofnoioffi that it is, because the loss arises wfaoUy 
ill within tiie policy, and the plaintiff' bas'a right 
I im indemiiity from the person who h^s engageclf 
iTf him from the peril. This argiunent appears 
|e coaclusive. This will not lead to a multipU- 
\^ any more than a difierent rule* for if the plaint^ 
er onlj' a cmtributory share from the defen- 
luld be compeUed to resort to the owner of the 
re^due % and this suit over, m^y as well \m 
the tnsurera^ the plaintifF, fmr one great dsjed)^^ 

IS, promptljf to re-mvest the assured with his 
by the perils of the sea, and thereby enable him 
bis commercial enterprises^ 
fen to fhia, it appe«» to be the English ptafUce 
lere^ to paf , in th« first instancei the adjusted avo- Abbott 19^ 

-- ?f 


A^Sft^' lam accordingly of opinion, that the plaintiff 18 entidti 

V«^*v-^^ to recover a general average. That in adjusting thu am 

^*SSiM*"^ rage, the freight has been properly estimated, andtbattb 

* v i7a.- ,. plaintifFis not bound to look to the owner of the veMd fon 
John B Church *' % r • % 

..............^ the proportion to be borne by the vessel and tr^bt, anc 

these points being established, the loss is to be consulend a 
Mai, according to an agreement of the parties at the Iboi 
of the case. 

Lewis, chief justice observed, he had delivered the opi- 
nion of the coun in the case of Le Roy, Bayard nd 
M<Evers, against Govemeur, on the same policyi and tU 
as far as the present decision turned on the import of die 
exception, free ffom average unless general, when qipEed th 
the corn, he fully assented to it. That the other qnestioiS 
arose upon an argument between the counsel, snljdnedk' 
a note at the foot of the case, which had been omitteliii 
copying the case delivered to him. He therefore had tft 
considered them. He saw no obje£tion, howeveri is OQt^ 
curring with the adjustment as to the quantum of fxeigkS 
be charged with contribution to the general zy^ngs: off 
with the principle that the under^^Titers, and not theownoi ' 
and shippers, were to respond, in the first instance, to the ^ 
sured for the general average receivable on the com, if efr 
titled to any within the terms of the contrail: of indemflH 
ty. But that he had great doubts on the other point, fil* 
Whether the injury received by the corn from the jett»» 
of the mast, and the consequent irruption of the sea irtWr 
could entitle it to a general average as between insurerlrtj 
insured. He was strongly inclined to think it witfaiadli' 
spirit and meaning of the terms of the exception: die4lH 
je£l and design of which is, to avoid and shut out, h iiW 9l0 
the parties to the policy, every question on the tmtti0 
injury to the corn, where it might equally arise firaat'dM 
perishable nature of the commodity, as from extenial;0lf^ 
ses. This was a case of that description, and a^buDjF^ 
volved the question, the assured intended to steer detf |il 
For tliat the evidence is, that the injury sustained hf^^. 
corn was principally owing to the sea water getdi^ in fhii 
the partners, before the coat could be replaced. Ttal^' 
appeared to liim rather an ingenious contrivance on tfaefi'^ 



Ae'assured to obtain under the form of a general^ what 
>o«id not under that of z particular average. He, how- 
T, gave no opinion. 

[ifii^ston, justicj?, having been concerned in the cause, 
« no opinion. 

George Barnewall against John B. Church. 
TTiis was an a£lion for a total loss by perils of the sea, 
der a policy of insurance on the ship Hope, valued at 
X>dcdlaTS» and dated the 28th of December, 1799, <<at 
lod from Elingston, in Jamaica, to Honduras, during 
w. stay dierej and at and from thence to New-York." 
ppeared^ that in April 1789, the plaintiff, wishing to 
chase the vessel in question, employed two ship carpen- 
i to examine her, which they did in every part. They 
td ber timbers fore and aft, near and between the 
linsy bends transom, breast hooks, apron, and in other 
icet| found her perfectly sound, and very strong. They 
loited her bottom to be of English elm, which never de- 
3 under water. That she was collier built, about nine 
ten years old, and would last \0 or 50 years. That she 
toed as ^und as a Connecticut vessel of two years old. 
;r iron work was good, her bottom perfeftly sound, her 
ids doubled, the first at least five inches tliick, her knees 
t started^ but well fastened, and tlie chain bolts fore- 

Da this representation, the plaintiff bought her, and ex- 
nied about 600 pounds in repairs. Whilst these were 
nplcdng, some of her timbers were perceived to be taint- 
» aadsome of the planks in her wai t defective ; the iiiat 
sn mended, and die latter removed. 
hbm this the ve sel sailed from New- York, where she 
llfinchased, to Kingston, in Jamiilca, from whence *ho 
ini.oa the voyage insured, and arrived safely at Hondu- 
fc Qn her passage from tliencc to New-York, she 
l^BgaJeak, wa^ obliged to bear away for Honduras, 
h|fc die reached in a very disabled state, and was, after 
pincy oa her duly held, condemned as not seaworthy. 
lUm two protests of the captain, which were read in evi- 
W^by consentj it appeared that the vessel, soon after 

Au juft 1803. 

Magf^rath and 


John B Church 

A ;;crcra1 poli- 
cy .uRaccompa* 
ni^d with allf 
warranty, cov- 
ers war risks of 
all kinds and of 
all countries. 
Under auchcir- 
cumdanccs, a 
falfc clearance 
it immaterial, 
and need not be 
dirclolcd. Sca- 
worthincfs i*i 
always impli- 
ed, and not at 
the. ri^k of the 
Wtight of tvi- 


ALlLp^t flhe left Honduras, lexperienced some hmvj gales, ' 
such as to oblige him to strike top^aUant^mastSy aft 
his top-gallant-sails, though she, at this very timi^ , 
the leak which forced him, by advice of his creWf t 
away. It was not, however, alleged, that any at 
nary press of sail had been necessarily carried to vm 
shore. The captain had, in his first protest stated, \ 
had sailed from Honduras for Falmouth : in his sbc 
explained it, by saying that he had cleared out for Fbh 
but aAually sailed for New-York. This, it was pn 
evidence, had been done to avoid duties to the aitk 
105 pounds per ton, which must have been piaifl 1 
vessel cleared for any other than a Britiah port: 1 
however, established, that the thus clearing made Hi 
ration in the premium, for the New-York insuiancec 
ny, after being acquainted with the circumstance^ 0( 
ed the risk on the policy they had under w r i tten, t 
demanding any thing additional. 

The state of the vessel, at the period of her HifVi 
condemnation, was shewn to the jury, from the tetW 
commission, containing the evidence of the sanne pe 
whose testimony, given on the survey, had been idi 
by the plaintiffs, for proof of loss, and constituted 
of what had been adduced to the underwriters, in Si 
of the claim against them. By this, it was proveid 
above two-thirds of the ship's timbers were rotten, i 
sequence of which, and the decay of the fastening 
planks had started, and several of tliem were also T 
the bends in the same situation, and loose, particulai 
That the defefts in the timbers and upper works zp[ 
to be of a considerable standing ; the bends, in part 
were so bad that they might have been ripped up '^ 
crow bar, for twenty feet aft. Many of the tnmnebi 
bolts, and other fastening bolts, started ; tlie bends 1 
so from the transom, and very much decayed. TJ 
starting of the bolts and bends arose from the rotlbeK 
of the planks and timbers, which could not hold a 
That ihe upperworks, inside and out, were mostly dl^ 
h'.r water ways open. That she could not hite'Bi 
staunch, tight, strong and seaworthy vesselj fit fcrOi 


81st No7ember» 1799, (die day of her depar- j(^|S^^ 
tasr general decay could not have taken place bo- ' 
thetiine of her leaving New-York, and that of her 
To discredit the evidence under the commission, 
the testimony it afibrded, the pbintiflF adduced 
Ab two ship carpenters who had examined the vessel, and 
Ae BHicry who, previous to die purchase by the plaintiff, 
commanded her. The two first swore, they be- 
tilc persons examined under the commission, had 
and the latter deposed, that the vessel was 
tight, strong, and seaworthy, when he left her, 
mdimim former voyage, had not made a pint of water. 
Oitftii evidence the jury found for the plaintifl^ at for a to- 

• AoMiM was now made for a new trial ) 

- hXm Because die verdicf was against evidence, the ves- 

id not hrilq; seaworthy when she sailed. 

tdm That she never sailed on the voyage insured. 

5d. Iliat if she did, and was seaworthy, there was not 
I mffident disclosure, she having cleared for Falmouth, and 
kj dm means increased the risk. 

P HwB e iw, for the defendant. Widiout totally rejeding 
the enieoee under the commission, it is impossible to re- 
concile the venBA with the state of the vessel. That a ship 
WIS l ea w wdi y, requires the strongest evidence to support 
ks ir ii not to be presumed that all are so, till the contrary 
kakewn : but if this should be the rule, still it has been com- 
lU with. The testimony of want of seaworthiness could 
■^Inrbeen resisted but by prejudiced minds; in this 
than any other, it ought to have been conclu- 

Ikt witnesses on the part of the defendant were first 
Jidbced by the plaintiff himself, to substantiate his claim. 
iMIfyiiD man shall present a person as credible, and when 
llvW used him for such a purpose, immediately afterwards 
flKfa^ bis credit. By adducing him, a credit is given, 
,|Mllh it is fraudulent afterwards to shake. The protest 
Ijd^jmmf go to establish the credit of the witnesses, un- 
|kAi ooBmiflsion, and the fafts they testify to, when in- 
on a solemn examination, corroborate, in every 





} See ante 19. 
note there. 

particular, the decayed and unseaworthy state of the vessn 
They cannot be disbelieved without saying, almost in ei 
press words, that they arc perjured : they must be 10^ i: 
the vessel was not as they have represented, and they una* 
nimously state the loss to have arisen from the xotta, un- 
seaworthy state of the ship. To contradiA this, no one 
extrinsic circum*»tance, or accident, is shewn. . There ii 
not a smglc hO, which could work an injury to the Tend: 
not even a lee shore stated to give a pretext for a pren of 
sail, and consequent straining of the ship : but this cooU 
not have rotted her planks; it might have caused her «> 
leak : yet that circumstance is otherwise satisfa£ior^Ji^ 
counted for, by her seams being open. It is singobr die 
p!ainti(r should not have produced his captain ; a man who 
must certainly have been able to give the fullest insight idId 
all matters relative to the present question. The 
nation, previous to the purchase of the vessel, and 1 
quent report of the shi p carpenters, do not estaULJi hff 
seaworthiness. The same things happened with die IGOi 
frigate.* Had the Hope been reparable, she ought hie 
obtained all that was necessary at Honduras ; the only per- 
son who says it could not have been done, is Williams, wlio 
never was there, whilst the man who had been, sweat 
tlie reverse. The captain, too, deposes very equivocaDjs 
he states, that he believes she was seaworthy when he suW 
from New-York, but not even a belief is mentioned when 
he left Honduras. Where there is evidence on both iAfh 
the rule generally is, to let the verdift stand; but whenii 
is again .t the weight of evidence, and some of the wk 
ne^scs are foreigners, the court will give an opportunity ei 
establishing their credit, especially in a case, like the pi* 
sent, of doubt and importance.^ The bias too, of jafM 
in subjeds of this tort, cannot be unknown to the COBll 
On tlio second point, the defendant had strong reasoiuH 
expect a verdift in his favor, llic testimony of three pet 
sons evince the vessel sailed on a voyage to Falmouth, a* 
not on one to New-York. Though this latter is afterwAjl 
stated by the captain to have been the real voyage, it i» b 

be remarked that he flatly contradids liimself, and WM|i 


lii^|oCflMdk.uitrtioi^ equaUjopoa his oath. I^ b- 

bliltDbebeliered, asto whathehstuysy the risk 

pnaed: andiftheresseldidssuiont^fiereot voj- 

Vlbait insuiedj a new policy ought to have, been ef- 

3^. the fiinst was clearly Toid. ■ - " 

pghiftfinred the court to 2 Marsh. S6^ as to die m- 

ijjd the survey and report made before.tfae voyage^ 

ikJVStf S, the last edition, for the Ostend case/ in' 

jbera^ of trade was relied on. 

jSljliafiir the plaintiff. The cause is one of those 

ifl^jfhe court will grant a new trial with extreme 

I. It Is true it bas^ in one instance been done $ but 

tbe loss happened by the vessel's foundering at sea .^^ 

C any circumstance, by which it could possibly smhhaiiu si* 

imted for.f But though the accident shoidd arise ^omx^ 

If latent defed, a premium is in fa£i paid to insure 

:|t This willy on investigation, b^ found to be 

^^ The underwriter, in forming his calculation, 

■the qu.intity of losses in proportion to the safe 

^ On tlib datum he forms his estimate ; seawor* 

must therefore be included. Of the number foun- 

i seat many must have perished from latent. defers, 

ilpfimg up alone, would discover. Therefore, these 

ave constituted part of the risks calculated. If then 

kubtftOQ be faunJed upon this, htent defeds axe 

r, xnd premiums a^ually received for them by the 

tiixn. If, therefore, she was seaworthy at the incep- 

the voyagei the progressive decay is at the risk of 

ieiwTiier. Tlie interest of trade requires this mode 

sming I for it is the policy of commerce to divide 

^t of lo&s, and tluow the load upon many, rather 

in out* To warrant, therefore, a new trial on this 

■I ihouM appear clear and manifest, that tlie ves- 

BA^worthy when the risk attached i that is, on her 

[^Ongston. There is not a particle of evidence to 

1^ There was therefore abundant reason for the 

pkliberate and to determine as they havedoot, 

$dtbilit^ of witnesses is also their exclusive provincet 

this they hav^e decided. That they might be fully 



adequate to 4o 80| a struck ji^ V9ft obtainfda nA i 
fnm their skill ii^ navigation! aided by their general Iq 
ledge in mercantile transactions, have found the gqp)^ 
ityof truA on the si4e of the witnesses of the pla^jt^jf^; 
is in evidence that the greatest exposure to daiffHi \ 
possible increase of latent defeCls) would naturallyiqif 
and from Honduras. She might therefore have b^ i 
worthy at Elingston* and in comcidence with every qsp 
stance, have become afterwards unfit. Her cargo^ g^ 
former voyage> was of a very heavy nature, axid yft. i|k 
ver leaked a pint. The parts which are s^waja .d|| i 
ID decay were bored, and found perfeCkly sound. . fi 
single fad, separately taken, proves her seawoi;tly.|t 
commencement of the voyage. The period bqtw | p |, 
survey m New-York, and that in Honduras, wM99)|-4 
months } comparing the two reports, the jury diacie^^ 
last But if they had not done so, still their ver^jS^ i 
well warranted, the loss arising from perils of the s^ 
teriorating the vessel after the inception of her pygfl 
when she clearly was seaworthy. Therefore, ^vi('4r« 
impeach the credit of our own witnesses, by lihr iWUi 
tion of the ship carpenters residing here : we onlf dMi 
what time th^r evidence relates ; that it proves tel 
during the time of the policy, though there may jffA 
be somf reason for supposmg a little exaggeratioR i» 
description. In foreign ports, speculating surveys a^ (PP 
times to be found, where the hope of purchasing am 
may induce her being condemned. The right of a )M| 
to weigh the credit of both foreign and domestic ; 
The course of the navigation being through keys^ 
ed a press of sail ; and this is another cailse for fiiidi^fl 
the loss, and leak arose from perils of the 10% 1 
there is a doubt in a case, as to the absolute origiamf 
disaster, the jury arc to decide, and this they bsiv*4l 
The case of the Mills frigate is very dibtinguis)u4d«ii 
this ; the examination* in that proved the ipess^ llfll J 
worthy when she sailed on the voyage insured. Otta 
second point, the only evidence that could be relied 49^ 
the captain's. He only could know the real 

* The ezamioation there was as here, at the ffakce vhcrt 
beamed; after prcfioui eiunliiatioiu, fiodiof her tea worthy. 



id. The others spoke from the papers alone. The 
X oontradi£lion is easily reconciled, and the expla- 
jhren in the second protest) is substantiated by the 

ktters, which prove the vpg^ sailed on, to be 
lidi was insured. The objedl of the clearance to 
ith b consistent witli the known usage of tlie trade, 
Merely to save the British duties. This very course 
e was relied on in the Ostend case,* and allowed to/ 
t the mode of clearing out. It has never been said 
Uftckms papers are fatal, when reported to, merely to 

commercial advantage to the assured. Besides in 
mtf the rate of premium was not affe£led, nor in- 
ttU it be for as there was no warranty, it was a war 
t which the underwriter guarrantees against every 
of loss which may arise from capture. False popcrs 
jcr only neutral policies, but cannot enhance tlie 
f a belligerent insurance : and according to the 
m of this court, tlie pre ent must be of tliat dei- 






i on the same side. That a cause is of impor- 
flt by no means a reason for granting a new trial. 
Hi aho be difficult, and to render it otlicrv^-ise a pro- 
f of obtaining new lights, by a second iikvestigation, 
\ be made to appear. It is observable too, that to 
t that very bia-^, which is now urged as a rea. on 
Oldiiig the effcA of the motion, a struck and se\e& 
pcTaons pre-eminently qualified was empanncllcd. 
cr a Teasel be seaworthy or not, ii, a question of fatt ; 
BOg so, the established maxim that to matters of 
hejory shall answer, fully applies ; for there ii not 
onnBtaince to make an exception of the present ca e, 
iooe the court to exercise their power of remanding 
lae. Where the scales are nearly balanced, tlicy 
neter be taken from the jury and carried to the 
Thia is to destroy the most invaluable of our rights, 
hont fad, as well as law to the judge. Suppose the 
ftnt.backf and then there should be verdict against 
i^'M well as evidence against evidence, how long 
li.flMit be before it shall be satisfied which ought to 
B «« Jktehcr. Doug. ajS. 





preponderate ? That the vessel was seaworthy at the < 
xnencement of the voyage, is every way reasonable, fia 
wall wanted to buy a sound ship : strong, tight and st}i 
fpr the purposes of trade. He was soUcitous the sb 
be so, and his interest . coincided with his wish* To 
certain the fa£l, she was critically examined in parts wl 
she could not be sound, if she was not seaworthy ; 
must have weighed with the jury, and they have found 
cordingly. Take the account given of her before, and 
after her purchase, and see if it is possible that the re 
to the commission could be true ? But to set aside 
verdi£l the court must go a step further than even 
witnesses under it ; they must hay the vessel was npt i 
not seaworthy at Honduras, but that she was not s 

They must go still further, and say none of the d 
took place whilst at Jamaica, Honduras, or on the TO] 
To constitute unseaworthiness, one or two defective 
bers arc not sufficient. The vessel must be in such a si 
tion as to be unable to perform her voyage. Can tfaii 
said wlien the Hope left Jamaica? If not, the canie 
not be sent back. Besides there is no further eridem 
be gotten. Therefore, there can not be any new 
tlirown upon the subjeft. What is to be derived fron 
testimony under the commission ought, perhaps^ to b 
ceived with great caution, if meant to affe£l the seavi 
ness of the ship at the inception of her voyage. She 
been a long time in a climate more tlian ordinary d< 
rious to shipping; she had not been wafted from thea 
halcyon gales, but had encountered according to tl^ M 
protest, violent winds and boisterous weather under a 
of sail, which made her labor, and after these events her 
is described. These circumstances were doub^ess. i 
into consideration by the jury, and it is impossible ,ti| 
the case to them, under better circumstances^ than 
have already had it. It may be alledged that we oi^ 
liave produced the captain; but the court will rememb 
is a seafaring man, and obliged to follow his. prafiei 
If, hoM'ever, he was necessary, he certainly miist. 
been more peculiarly so to the opposite side^ aa4 t^y. 



M^e fit to produce him. The objeftion which has 
bde on account of the clearance vanishes before the 
stances of the case. That a vessel clears for a par- 
port is no proof of her being destined there. The 
y was declared in this case to the New- York insur- 
Mnpany: it appears from the letter of instruftions, 
plain's protest, and every thing else, that it was en- 
I New-York transaftion. The disclosure itself shews 
dmportant it was: It did not afffcft the premium. The 
sntoided for, is to establish that a vessel^ insured to 
irt^ ID which the owners declaration to one under- 
V tike instruAions and protest of her captain show 
destmed, shall be vitiated by a clearance to another 
ade for the sake of saving duties. The Ostend case 
s authority for this is the very reverse. A clearance 
«r conclusive. 1 Marsh. 229. 231. It is the daily 
oe to clear out, from foreign ports, as will best suit 
Dpge aAually intended, and this being a belligerent 
lemd of all warranty, the hazards could not have 
Dcreased by a want of disclosure, had it m no degree 

Iniaii in reply. This ha?; already been stated to be a 
F magmtode: It is so, not only from the >,um in con- 
jy, but from principle. It is peculiarly important, be- 

wichout examining the testimony and shewing that a 
lba$ been pronounced on the contradiftory 
tmd, it is now become almo t a maxim for juries 
to find a verdift for a defendant, when unseaworthi- 
* usury are relied on in defence. On the very out- 
die trial, the jury betrayed a prejudice, on an idea 
he insurer undertook to guarrantee the seaworthiness 
ItsseL The court now has to deci<lc whether the 
my iiwill justify the verdift. We admit that where 
ittfluxces speak one language and witnesses another, 
teanoes are to be believed; but where two sets of 
lies apeak contrary, and circumstances coincide with 
ti Ae odier must be disbelieved. Now the circum- 
i at die time of survey, detailed under the commis- 
irtcidewith the evidence of Potts and others, that tlie 

Cikild not have been seaworthy when she left New- 

Angaft 1803. 




AHguft 1803. 




This fad then is corroborated by extrineic testunony 
weight of which is clearly with the defendant. Tobal 
this as it is called, Middleton is examined as to tht tta 
the vessel in 1795. With as much propriety t)ic bw 
might have been resorted to, and with such a bititiidi 
would be singular indeed if the vessel should not be pn 
seaworthy at .some time or other, and the number of 
nes .e? in process of examination rendered equaL Thai 
circumstance relied on by the plaintiff fi^hould be 1 
ally true is impossible. That the ship did not make a 
of water, during her passage from England, neither 
honor.^, nor the jury could believe. It is what conU 
happen in even going to Albany. But even tUs was 
months previous to her purchase, and if truc^ how c 
it that at the expiration of tliat time she wanted repair 
the amount of 600 pounds? notwitlistanding whkh» ] 
gan swears, she wa^; then (it to go a voyage louiid 
world. If he and Middleton be taken away, then 
number of witnesses will be eight to four-, and wheiet 
is a contrariety of testimoney, number ougbl vert 
to prevail. The witnesses at Honduras demand i 
their situation more regard than those here. Do 
had sold the vessel. Williams had a duty to perf 
and is brought forward to swear to a fa£l, whidi 
prove it was faithfully discharged. Can there be ad 
therefore, of the tendency to a bias ? None of 
can be imputed to the witnesses under the oon 
sion. Their testimony coincides with the survey; a 
vcy taken by the plaintiff's captain made use oi b] 
plaintiif to tub&tantiate his claim befoie tlie undfel 
tcr*, used by him in evidence, and without wludu 
is no proof of loss. It is singular that an aigH 
should be raised by tlie plaintiff against testimony .V 
he himself, through his own agent, the captuOi 
caused to be produced. But what is f.till more estii 
nary is, that when the ^urvey is to be impeached, . w 
fads it contains discredited, tlic plaintifPs capta^qp^ 
wa.' present, and saw whetlier they were true or 9 
passed by, and Williams, a New- York ^hip carpc 
called upon to negative them. This, to be sure, he 
pretty icundly, by asicrtrng on oath, that all who' 



8000 milesi off, swore falsely to things before 
|nesy and which his never saw. The plaintiff never 
amines his own correspondent at )londuras> but 
I a person hen to contradidl what passed there* The 
thineas of the vessel is in no one point asserted by 
rtam in his protests. In neither, does he hhew any 
itticauseof decay. Giving the utmost extent to all 
ii it ooold amount only to leaking, not to rottenness : 
DttCBoess which would not admit of repairs. Yet it 
geMd she might have been perfe£Uy seawprthy, 
l^ tightf and strong, when she left Jamaica, only 
raeks before. The clearance being false rendered the 
iahle to be carried in for adjudication, and though she 
not be ultimately condemned, it would &ubje& her 
btr proof. The risky therefore, was encreased, and 
Isbivebeen made known. 1 Marsh. 232. 
idklon on the same side. Had the vessel been met 
bf a French cruiser, she would, on account of her 
nee fr om a British settlement, to a British port, certain- 
e been carried in : So, had she been met by a British 
' steering a course different from her destination, it 
kwe been attended with the same consequence. 
ever psipers appear false and colourable, a neuter i.f 
rone skoation than a belligerent. She is exposed not 
D be captured by one party, but by allj for every na^ 
• equally her enemy. If the court will refer to the 
De of the admiralty, they will fmd this to be the law. 
ODsequence i-, that allowing the risk of the underwri- 
Ine there i^ no warranty to be a war risk; tliis is great- 
■ any war risk: because, among hostile parties there 
be friends, but a neuter thus navigating, has none, 
luage has not been proved. 

?it was observed by counsel, tliat the effeft of colour- 
Hipers had never yet been the obje£l of particular 
aion, and that if the court was disposed to hear an 
lent on the >ubjed, they wished to have another day 
ittttL This b«ng accorded, the second argument wa? 
raids opened by 

Mp fbr the defendant. Tlie question now is whether 
m diaclosure of the clearance being for Fidmouth, 






wu a cxmcealment of a material hEt. If so, tbat^ ru 

the risk, must of- course avoid the policy. At the pe 

when it was efiefied, and the voyage to be perfeffl 

Great Britain was involved in a war with Francfe^ S^ 

and Holland. The consequences therefore of a (aUe ptj 

would be different from those, which would arise mi 1 

of peace. It is a settled maxim of the law <^ nat 

that neutrals, to have the benefit of their neutrality, she 

in every part of their conduct, proceed with the ub 

good faith. All neutral sihips are therefore to possess 

nine papers. These are, on her being boarded at sea, 

first objects of examination. If they present false a 

lourable appearances, it is on ail sides deemed a snfi 

reason for bending in for further examination. If 

covered to be fraudulent, condemnation is sure to ensn 

fair, the only indulgence is to produce further proo 

neutral charafier, on estaUishing of which, thoogii 

quitted, costs are invariably to be paid. For the UD 

ent is not in fault when the papers do not speak diat^ 

is true. The risk of interruption and detention is d 

fore enhanced by a false or colourable paper. AVbot 

1 Moll. 329. b. 2. c. 2. S. 9. Coll. Jur. 185, 6. 1 ' 

Ad. Rep. 371, 7, 8. 124, 6. 165, 247, 8. 2 Rob. 

Rep. 158, 161, 349. 3 Rob. Ad. Rep. 77, 8. 90. 

cases cited shew that if there be an alternative destina 

even that ought to be expressed. Here not even that 

was complied with, but the clearance was prositivel] 

determinately false. A usage has been on a fonbei 

urged, but the court will look to the case, and none h 

to be seen. If none, the underwriters could not pre 

the clearance would be to Falmouth. Had the vessd 

met with by a French cruiser the conclusion would 

her clearance have been, that she was in faA a I 

vessel with British property. This then is a risk and 

ger which with fair papers could not have been encoiiiil 

The same would be the case let her be met with by 

cruiser soever. Suppose even the letter of Bamewal 

covered, what would then have been the concluision ? 

she was an American vessel carrying an English cazga 

was evidently in a trade authorising seizure, tuhbi 



^ contemplated, and therefore the underwriter enti- 
Hflijiioa haec in foedera veni. That no injury had 
Bd.&om thia particular cause is immaterial, the con- 
Nnt bong fraudulent. 7 D. & £. 708, 9, 10.* 
orison contra. The question is whether the conceal- 
be of a material hGt, This certainly was a matter for 
lelemiinadon. M<Dowal v. Frazer. Shirley v. Wil- 
Di Park 205, 6, 7. It ought not therefore now to avail, 
er T. Fletcher, was eia£^ly the same ground of appli- 
Q. Doug. 292. Had the fa£l been noaterial it ought 
ne been made an object of particular enquiry before 
jury, and this not having been done it is now too late. 
pfBfition the authorities cited will establish. Planche v. 
iff. 1 Marsh. S45, 6. Evinces how little stress was 
ipon the clearance. Lord Mansfield in that case says, 
HHVAsclosure of the proclamation, made no difference, 
Aer underwriters insured afterwards at thi same rate 
So here, the risk was continued without 
of price ; and on this very circumstance the 
probably have decided. The encreased risk by the 
mUe clearance, allowing all that has been said, was 
ia die policy. It was contemplated by the underwriter 
mbrace all belligerent risks *, therefore there could be 
ODoeahnent of a risk which was purely belligerent, and 
prehended in the premium. There was no warranty ; 
oe tben was a risk within the policy, and the under- 
rcannot therefore set up as a defence, that from this 
r the vessel ran a risk of being taken. For, that he shouM 
mily against th'uy was a part of the contra£t itself. 
a never therefore be urged that there was a conceal- 
tof that, which from the nature of the agreement is 
nnly implied, and for which a premium must conse- 
j% luve been paid. To explicitly communicate such 
BMbmces ia a refinement, in the do&rine of disclosure, 
Bfc£Uy novel invention. Under a general policy, for 
nnocvcr it may concern, unaccompanied with warranty, 
ipmece8.->ary to state that the proprietor is a billigerent, 
fBE.MO. In Wooldridge V. Boydell, Doug. 16, the 
ilerblity of the clearance is allowed ; and in the pre- 
case it must be wholly so when every war ri.k waa 

Auguft aloji 

• Rich V. Pir- 



Aiiguft 1803. 

Hamilton same side. It is nmiecessary elabohlfll 
argue in support of that which a decision of the oott^ 
already settled. The policy covers every beUigcKitt 
which could arise. It might be French, British, SjMlis 
Dutch ptoperty, for every war peril is covered. H ibt i 
demnation is insured against. The question AiOi ki 
any situation in which neutral property is placed^ bi 
tended with more dangerous consequences tfaaii when 
fessed to be that of an enemy in whose hands Voevtf it! 
fall? Can the risk of being carried in for adju^ 
(which is all that is attempted to be established fran 
dearancc) be greater, than the certainty of condAsn 
against which the policy insures ? I really do not 1 
how to argue the point more forcibly, than by aikaf 

Pendleton in reply. This argument presents two q 
tions ; one general, ther other particular. The fa 
question is whether a vessel having false documents xd 
to her vopge, and destmation should not always A 
the protection of the policy. It is of the utflicMt im 
tance to neutrals, to establish a chara£ter for good f 
false papers ought therefore to be discountenanced, 1 
motives of public policy^ as tending to corrupt the mon 
the people, by inducing perjuryand dishonorable speeuk 
in covering property. It is settled that every thing im 
sing the hazard ought to be disclosed. The true ill^ 
then is, whether the papet might not have produced 1 
aard, the vessel would not have been subjedi towH 
it? By the French ordinance of 1744, false papctl 
worse than either the want, or destruction of them, Wt 
the Ostend case, it is to be remembered the usag^ im 
have them false. They invariably subjeft to further fl 
The answer to the Prussian memorial, and th^ caflfr'<j 
De Hoop, prove thiv. They even encrease billigex«tfin 
For an enemyfs property always receives protedkNf 
one side, but false papers take it away from all. At 
ance is also a public document, and comes from f 
officers. It ought therefore to be genuine $ neitlerl 
gery, nor a falshood, because it may implicate then, -ll 
are also applied to purposes of acknowledged fraud i to i 



cnues of other countries ; policy therefore would 
the propriety of leaning against them, though the rc- 
X)des of foreign nations, are not noticed in our courts, 
e vessel been cleared for New- York, she could have 
kind of risk of detension ; therefore on the parti- 
Mfidon, as relating to this cau<ie, it enhanced the dan- 
lich V. Parker, 7 D. & E. 705. 1 Esp. Rep. 615. 
it like a deviation avoids the policy, not being qual- 
y any usage, either general or particular. 
Dupion, justice. This was an action of assumpsit 
loBcy of insurance, dated in December, 1799, on 
ip Hope, Edward Atkinson master, « ^/, and from 
m im Jamaica^ to Honduras^ during her stay there^ and 
Jirom thence to New-Torky The vessel valued at 
lollars — ^premium 12 1-2 per cent. A total loss was 
l» occasioned by perils of the 2>ea. Interest of the 
1 and the abandonment were proved. The defence 
«a% that the vessel was not seaworthy; that her 
ne was for Falmouth, and a market, instead of New- 
as the voyage purported to be, and that this ought 
ibeen disclosed to the underwriters. The cause ynL< 
t die New- York circuit in June 1802, and a verdi£t 
fior die plaintiff, as for a total loss; application is 
lade Cor a new trial. 

iabituice of the testimony produced on thetrialj as 
qocsdon of seaworthiness, was, on the part of the 
if as follows: — The voyage commenced on the 21st 
ronber, 1^99. Thomas IVilUanis and William Pea- 
if carpenters swore, that in April 1799, previous 
iHntifTs purchasing the vessel, they were employed 
to examine her-, she was then laying in the harbour 
wYork; that tliey accordingly did examine her, borcil 
y places that usually decay soonest, and found her 
If aound. She appeared to be a very strong, well 
ligu That after the plaintiff had purchased her, they 
mployed to make certain repairs; that they stripped 
heboid sjieathing, found her bottom English elm, and 
SyiPQund \ her naval hoods, and head knees sound : 
Jinfcfttikenoffso, that they could discover her top 
i. . .. Hh 


Auguft iSoSi 




A^fuft 1803. 

timbers to be sound and good : She was thorougU; 
paired, and fit for a voyage to the East-Indies. 

Andrenv Dargan swore, he had sailed in this Mp as 
ter for fourteen months, immediately precedoy j 
1799', that he arrived in New- York, with her, in die Bl 
before, with a cargo of 400 hogsheads of Molasisi, 
100 hogsheads of sugar, besides some other articles; ' 
he sustained four severe gales of wind on the coa&t^ bi 
vessel received no injury; that while he was master bl 
she was twice hove down and examined, and nont d 
timbers found rotten or defective; that when lie left 
he considered her a very strong, staunch and good « 
fit to go to any part of the world, she was tdn ywts 
By the first- protest of the captain, chief mate, akid 
seaman, made 20th February, 1800, in HeaduM} 1 
pears, that when they sailed from Honduras, abw 
27th of January 1800, they conceived the slup f 
staunch, and well fitted for the voyage; that she enc 
tered some stiff gales and heavy weather. By the se 
protest of the captain alone, made in New-Yoiici iq 
ISOO, extending and explaining the former, it appean 
sailed from Kingston 21st November 1 799, anrived atl 
duras 8th December following, and left that place tat] 
York the 27th of January 1800, the vessel well fittai 
the Topge; that he met with excessive hard wands { 
the navigation was difficult and dangeix)U!>, and he 
obliged to carry a heavy press of sail, in order to ^tdk 
reefs and keys; that he found tlie ship I^ed so fast^ 
he was obliged to keep the pumps continually wed 
that on the 2d of February, for the .«afety of the s^ 
cargo, and preservation of the lives of the crewj it wi 
a consultation, thought adviseable to bear away for ft 
Island, but as they could not get there, they then hon 
for Honduras; that from that time, to the time of 1m 
rival at Honduras, they experienced heavy gales anid 
ous changes of weather. On the l7th, the diip WM 
vcyed, and condemned as unfit to proceed on the^lN 
without consiiUrah/e repairs, to do ivhich, no tuofimmm 
ttrtals Hvere to be procured at that place. The ca^rtttn 11 
ihat he believed, if the shi^p had arrived at atyporfoi 


eilt 6f Aaierica, she might have hecn repaired, fit j^^'^j^^JT* 
r voyage, for fifteen hundred ot two thousand del- 

the part of the defendant, as to the question of sca- 
nes^y the testimony of Philip Nicoll, James E- 
iTibpp, John Potts, and 'William Gibson, surveyors at 
vStt^ is introduced. Tlie three former swore sub- 
Bj^y that on the 17th of February 1800, they were 
Hirvey of this vessel, that above two thirds of her 
m were rotten, many of the planks started by reason 
i4 ao^fte planks rotten, the bends rotten and loose, 
1/bjtf gfti so that with a crow-bar, they might have 
n^i^ for twenty feet-, the dcfeAs in her timbers 
^per works, appeared to have been so, for a considera^ 
MB. The trunnels started in many places, chain bolts 
litid many of them ready to drop out., That from 
leB-aqppearance, she could not liave been seaworthy on 
Mof November 1799, and (it for the voyage described 
; policy^ on account of the bad state of her upper 
^ and the general decay of her timber^, bends, and 
I wfaidi could not possibly have been so much injured 
it.VttenraL The survey also made by eight men at 
knii Hates, tliat they had examined into her upper 
i^.tides, and bends, and found her to be wholly de- 
nr ID fccr timbers aloft, her out side planks rotten and 
ti^ her timbers in many places started, her bends 
4» and in many places rotten; the whole of her up- 
Miksf inside and outside in general decayed. 
Jfk TtspeCt to the other question, it appears from the 
timjf that tlie vessel had a clearance for Falmouth, 
kOiariBrt; but tliat her real destination ^vas for New- 
I ' It appeared also, from tlic testimony of Jacob 
h Aatlie had been informed, and believes it to be true^ 
mMb dearing out with mahogany, dircQ, from Hon- 
lioFabnouiihf save about 105 pounds per ton, which 
il be payable if landed at a foreign port. 
tirtwo' questions arising out of this case for decision 

It VfbtibtT the verdid was against evidence, on die 
Rkp of atMrortfaiiiess i and^ 





2d. W hether the plaintiiF ought not to have disclosed to 
the defendant, that the ve^^sel would have a clearance ibr 

There is, in every insurance, an implied wa n anty tht 
tlie ship shall be seaworthy, when the risk commences} 
that she shall be tight, strong, and in all re$pe£l5, fit for 
the intended voyage. The insurer undertakes only to ifr 
demnify against the extraordinary and unforeseen perik tf At 
sea^ and not against the ordinary perils j to which every ship 
must be exposed in the usual course of the voyage propo- 
sed. If a vessel become incapable of proceeding «• Ac 
voyage insured, the presumption^ prima facie isi that it 
arises from unseaworthiness, unless some adequate cmue be 
shewn to occasion the damage. But, if any such cause be 
shewn, so that the loss may he fairly attributed to sea da* 
mage, and the underwriters mean to rely on the ship*! not 
being seaworthy at her departure, the onusprdfanH wiBd^i 
He on them. To test the present ca^e by these rulcsi «l 
fnid tlie only testimony, as to the immediate cause of the 
disaster, is that contained in the two protests. From the 
first, made by the master, chief mate, and one seaman, it 
appears, that the vessel left Honduras the 27th of Januarj. 
That on the 28th May, she met with strong gales, so dot 
they were obliged to close reef the fore-topsail, anddoie 
reef the main-topsail. That on the 29th, strong gales, aal 
a heavy sea, from the northward, still under reefed sah, 
the vessel making much water. On the 30th, the wiul 
abated \ and nothing remarkable occurred until the 8d ef 
February, when they found the leek increased to thatdei^ 
grec, that they could not keep her free from water wichlU 
jiumps. They then bore away for Swan's Island, iriddi 
being unable to reach, they determined to return to Howlip 
ras, where they arrived the 13th of February. Durjsig-lkt 
above time, they encountered, at various pcriocb, stiff geU 
and heavy squalls. Thus we find the ship, from the.Sfilft 
of January, until the 13th of February, a very considerabb 
part of the time labouring under stiff gales, and heaivy wMthF* 
or, far beyond the ordinary perils of the aca. The mastt^ 
swears, that .-hortly after leaving Hondura , he met y^At 
excessive hard winds ; tliat the navigation was liilEciiIttf^ 


rousy and he was obliged to carrf -a verr heavy press ALBAHT,. 
p in order to avoid the reefs and keys •, and that after 
met with considerable injury ^ and it was determined, 
CO return to Honduras, he experienced heavy gales^ 
rwus changes of weather. This I think sufficient to 
diat the loss may be fairly attributed to sea damage, 
row the onus probandi of unseaworthiness on the de- 
t. On this subjeft, the testimony is certainly very 
liAory, and, in my opinion, irreconciieable. The 
dwairantyon the part of the asured is, that the 
was seaworthy at the commencement of the risk ; 
Is on the 21st of November, 1799, while she lay at 
km. The testimony on the part of the plaintiffis sub- 
Ry, that in April, 1799, when he had it in contem- 
\ to purchase this vessel, he procured ship carpenters 
aniBfr her, and ascertain her i-ituation, previous to 
iSOBo^ the bargain; no possible inducement, there- 
to a fraud, on the part of the plaintiff. They exa- 
ber accurately, bored in places most liable to rot, 
umI her sound \ stripped off her sheathing, found her 
I English elm, and perfe£tly sound ; her naval hoods 
ead knees sound -, took off the plank so as to examine 
ip tinhers, and found them ^ound and good. The 
oaf of Captain Dorgan, likewise, who arrived in 
I preceding from the West-Indies, in this ship, with 
» of 500 hogsheads of ^^ugar and molasses, tends to 
hat she was a very tight, strong vessel, and only ten 
dd. Thb, it u haid, however, was seven months 
t die commencement of tlic present insurance. But 
Mj in the situation represented by these witnesses 
df it is inconceivable thai she could be in the rotten 
icayed state represented by tJic defendant'.s witnesses 
fember thereafter. The examination made by the 
hkmfs witnesses was in February, 1 800, three months 
lie commencement of the ri k. All the progressive 
therefore, from the November preceding, was at 
k of 'the underwriter. But it appears incredible, tliat 
vdecay could have taken place in that period, for the 
hn^s witnesses represent, tliat when she was hurvey- 
^MB^tvoNthirds of her timbers were rotten, many 


AUAirr. of her phnk started afid xotten *, her bend^ so rotten aiM 
loose that with a crow bar they might have been ripC uf 

for twenty feet ; her uj^er works in a very bad state ; addj 
in short, that there waa a general decay of her tinbasi 

■^■^"^■^ bends, and plank. The master of the ship, 
swears, that had she arrived in any port on the 
of America, she might have been repaired, fit for the voy 
age, for fifteen hundred, or two thousand dollars; btfti 
she had been in the situation represented by the defeadtnt'i 
witnesses, she muit have been irreparaUt, - Ob the vllde 
the testimony is so dire£ily and palpably contradidlory dn 
it is impossible to reconcile it It thus becomes a queidoi 
of credibility of witnesses, and this is peculiarly witbu dH 
province of a jury to determine. Whether the vend wai 
seaworthy or not, is also matter of fa£t, to be snbnuttada 
a jury. These points have been decided by a vespefiabli 
jury of merchants ; and in such case, where the questioi 
is doubtful, and the testimony contradi£^ory, I think di 
court ought not to interfere by granting a new triali onlfli 
it appears that injustice has been done, or that further ligb 
may be thrown on the subjcft on another examinadim. 

% stnnre 114a. '" ^^ ^^^ ^ A«hby V. Ashby, the judge who trie 
the cause, (which was upon a promissory note for 500< 
pounds, which the defendant insisted was forged) ceilifid 
that the weight of the evidence was with the plaintiff, tt 
he thought the jury would have found for the phunti^ki 
they found a verdifi for the defendant. And on an appB 
cation for a new trial, the court said, as there was cii 
dence on the part of the defendant, the jury were pKOp 
judges to determine which scale preponderated { thKi 

Ij^^ could not be said to be a verdid against evidence, adti 

refused to grant a new trial. The same rule was Tiif^ 
in the case of Smith v. Huggins, and a new trial dc^ 
although the evidence was weak on the part of the pbii^ 
and the judge who tried the cause, strongly inclined agui 
the verdifl. 

I am therefore of opinion, on the first point, that a vA 
trial ought not to be granted. 

With respe£t to the second question, I think there tf| 
be but litde difficulty. Thqre is no doubt* but the xeal dtl 



I of this vessel was for New-Yoric, as described in 
tkpoliqTf and not for Falmouth, as the clearance purport- 
i There is no contradictory testimony on that subje£t, 
wotftf that in the first protest it is said, as in the dear- 
wxt she sailed for Falmouth and a market, but as to the 
ftit/pbce of destination of a vessel, I think the captain^ 
dfas Us testimony is impeached, is entitled to full credit* 
ifl^ of aU others, is the most likely to know this fad ^ and 
i^ irilen examined as to that point particularly, declares 
qfiddy, that she sailed for New- York, though her clear- 
ooe was Cor Fahnouth and a market ; and in diis he stands 
1 by the testimony of Alexander Anderson, the 
\ agent at Honduras. I therefore take it for grant- 
ii that the vessel sailed on the voyage insured. So far as 
■yiaaoas could be discovered for taking out a clearance 
s YalODOiitliy it was to avoid the payment of certain 
tep% Aat would otherwise have been incurred at Hon^ 
imm» Tbfxe was no warrranty or representation, and it 
bshai settled in this court, in the case of Murray v. U. 
L CamgBSY§ that in such cases, the underwriters take up- 
n themselves war risks. Under a policy of this description^ 
I cuBot conceive how this clearance could, in any manner, 
pnpfioedK underwriter, or increase the ri?k; and there- 
bwi i am a tei i al whether disclosed or not. In all the casern 
dteA-fion Robinson's admiralty reports, where false aad 
?i?igifiHe papers came under conbideration, die question 
n^ aa to Ac neutrality of the property \ the papers pur- 

' a difierent vopge or owners from the other testi^- 
l so considered a circumstance of fraud and suspi-i 

%qX as the present insurance is general, and includes 
JVripiB% this clearance was immaterial. 
^ |,ttl therefore of opinion, that judgment ought to be rei>- 
jm/m the plainti£F upon the verdi£t of the jury. 
ypi)Uifl^ justice. On the trial of this cause, the de« 
Ublt rested his defence principally on the want of sea^- 
Hfflinirin. This objedion was relied upon in the argu- a new trial, and two other grounds were also ta» 



^if^thit^ ship sailed from Honduras for Fahnouth, 
IJiintfatfae voyage insured. 




Avfnft i8o> 

I shall begin mth conBidering the two pointi last n 

As to the first of these, the evidence b» that the! 
cleared at Honduras for Falmouth and a market 1 
capuin and mate, and one of the ^amen, who made 
original protest, therein swore, that they bailed fromH 
duras, bound for Falmouth and a market. On dus 4 
dence alone, I should have no doubt that the voyage i 
Honduras ought to be considered as destined for Falmtf 
But the captain, in his second protest, explained that I 
faft sailed for New-York, although he cleared for 1 
mouth. How far this explanation can be reconciled 1 
his former deposition in the first protest, or oughttD be 
ceivcd without further proof to establish the fa£lof hiss 
ing for New- York, it is not important, under die ciici 
stances of the present case, to decide. There is other 1 
dence ; to wit, the deposition of Alexander Andersofli 
the letter of the plaintiflF of the Sd of October^ 1799| 
plaining the ohjeOt of the clearance for Falmouthy whic 
think sufficient to justify die vcrdid, on the ground diat 
vessel adiually sailed for New- York. 

2d. Assuming tlie position, that the vessel was in i 
bound for New- York ; the second point has been tie; 
as more delicate and important. She was bound for N 
York, but cleared for Falmouth. It is not stated in 
case whether the cargo was consigned to any person atN 
York, nor in what manner her other papers appeared. ' 
objection is therefore founded en the clearance alone. 

Incon idcring this question, it is material to obM 
that the insurance was general, without any warxant 
representation that the property was neutral. It fbD| 
according to the decision of this court, in the case of jH 
ray v. the United Insurance Company, that Jt exi| 
ed to prote£t belligerent, as well as neutral property^ 
the risk, therefore, was not increased beyond vhii 
would have been in the case of belligerent property* th 
cumstance of a false paper, or a clearance for a port of 
of the nations at war, could not be material. The uni 
writer must be deemed to have received tlie premium l 
c[uate to the risk, which this circumstance implies . 



therefore, to be liable. Besides, I think it too un- 
, and too greiit a refinement to establish a rule, that 
■aper, which, in the opinion of the cruisers of a bel- 
t nation, may be deemed suspicious, and uiduce them 
fitkz vessel for adjudication, should be held neces- 
be disclosed. It would be impossible to meet the 
ity, or avoid the cupidity of that class of men, and 
be a safe and pradlical rule on the subject. 
On the point of seaworthiness, there was much con- 
f of evidence. 
the part of the defendant there appeareil, 

A survey of the vessel made on her arrival atllon- 
by eight person », at the instance of the captain, who 
!d upon oath, that she was wholly defective in her 
labft, her upper works, inside and out, plaiik rotten, 
lienri^ie generally decayed ; that on account of these 
LS| and other injuries which she had received, she was, 
ffopbion, unseaworthy; and, from the dilliculty of 
ring workmen and materials, and the high price of 
* and pTDvision:;, she was incapable of being repaired 
T fiiU value, auer the repairs should be completed. 
. The depositions of four of the above persons, who 

(he survey, taken under a commission, who testify, 

HBjf to the same effect. Three of them add, that 

Tcriljr believe it was impossible the ship could have 

seawonhy on tlie 21st November 1799, at which time 

munenced the voyage insured. Two of the three last 

ianed witnesses, are ship carpenters, and the third a 

ler. The fourth is a merchant, and speaks with more 

enCe of his knowledge of vessels, but say^, tluit he 

f bdieves that some of her timbers had been rotten a 


djpposition to tliis, tlie plaintifF produced, 

L^The }>rotest of E. Atkinson, tlie ma.ter, of the 

"^iKite and one seaman, who swore, that when they 

(imki Honduras, on the 27th of January, they firm- 

AmJ the ship was tight, staunch, and well fitted and 

iiedf-ftir the voy;ige. The ma:>ter, in a supplementary 

k positively declared, tliat ^he was ti^ht, sUunch 

"tnd well fitted for sea. 

Auguft iloj. 




Auguft X805. 

Sd. A deposition of Andrew Dorgan, who testified, 
that he had been master of the ship immediately beCoie A» 
plaintiff purchased her, for the period of fourteen months^ 
that during that time, she was twice hove down and ex- 
amined, and none of her timbers were found rotten or de» 
fe£livc; that during all the time he sailed in her, he thought 
her as strong, staunch, and good a vessel as anj he W 
ever sailed in, and when he left her, which was in AfA 
1799, she was, in his opinion, fit to go to any part of the 

Sd. The testimony of Thomas Williams, examined tt 
the trial, and the deposition of William Peacock, two- ikf 
carpenters, of the city of New- York. They euounodthe 
thip at the request of the plaintiff, previous to ifae puichait 
by him, in April 1799, and reported her to be gmcnDyp 
sound and strong ship; after the purchase, they 
repairs to her, fitted her for sea, and had a full 
then to ascertain her real condition ; they add, cvcrytUg 
was done which was necessary to render her seawortb]^ tit 
that after such repairs, she was perfedlly sound maH her 
parts, and fit for any voyage. One of these w itneMC % 
Thomas Williams, also said, that from the state of thed^ 
when he repaired her in April 1799, it was impossiUidta 
could be so decayed, at the time of the survey at haabr 
ras, as was represented by the surveyors there, and that il 
his opinion, they must have sworn falsely. 

4th. The testimony of Samuel Middleton, and aatVsi^ 
the plaintifPs clerk. The first of these proved, thafc:lt'^ 
helped to repair die sliip in the year 1795, and from i$] 
condition at that time, he was fully of opinion, thatf|i|# 
could not have been so rotten as was stated in the«9E|||^ 
and tlie evidence taken at Honduras. Bird, the.pbimifli^ 
clerk, established, that the charges of the ship, afterfw 
purchase, and including her outfits, amounted to 3QM4M 
lars, and that the purchase money was 5000 dollars. HefQrf|[ 
not distinguish how much was expended for the repain dpfP 

The defendant also produced one Rose, a witne8ib'-'>|if 
was a captain of a ship, and hnd been often at Hoadfffl 
since tlie year 1795. He testified, that William QibM| 
one of the surveyorsj was a respedable merchaati and^qii 



*rof Ae settlement; that Thomas Potts, another of the 
vpn^. was one of the richest merchants there, but he 
w nothing particularly respefiting him. That he was 
laintcd with two of the other surveyors, but could say 
log of their chara£ter. This witness also said, that 
fSisel must have been very strong to carry the sail de- 
bel im the protest, with a hard north wind, and he 
ll|^ she could not have done it, if the wind had been 
' hi|^ Two other witnesses, judging from the sail she 
ncdt also testified, that in their opinion the weather could 
hiivt teen so violent as to injure a sound and strong 

nUmM the principal evidence concerning the question 
MHWordiiness, which was submitted to the jury as a {tlGL 
ie ^eirniiined by them. As that fadt appears to have 
aKMnDy submitted, I think it not material to examine 
^ of the charge in other respcdls. But I take 
nity to observe, that the opinions and diredtions 
ji^^ at the circuits, as made by the parties, appear 
fte^fttendy very different, both in form and substance, 
B^vfett diey really were. 

itt fefcesent case, from the face of the charge, and the 
ipfe Wtae of the question under consideration, it is ma^ 
eil^ Aat it can neither be corredl nor entire. This, 
ry appears to me unessential to the decision of the 
I between these parties. I view it as a question de- 
idiBg on the weight of contradidory evidence. The 
itties at Honduras had, no doubt, the best opportunity 
tarred information. They saw the vessel immedi- 
Ifriflter die disaster happened, and examined her. They 
ll«0tbe mistaken in their knowledge of the fa£l, whe- 
llto 11 III so rotten or decayed, as they have represented, 
IS 'Aey speak the truth, she must have been extremely 
t ittid unseawortliy. 
r oAer hand, it is difficult to reconcile their evi- 
the testimony of the plaintifPs witnesses. The 
of Dorgan, and the two ship carpemers in the 
t^-Tork, prove, that the vessel at, and shortly be- 
I she left that port, was apparently seaworthy, 
PftM COttCdoHf which it i eems impossible could admit 

Aogull i8o> 




of SO greatadecayi in the period of se^cn monthfii atd 
expiration of which, the voyage in question conmnefioei 
These, and other parts of the testimony, appear tonieiin 
concileable. If the question is to be decided on tiie ifd 
of the witnesses merely, and there be nothing to impeac 
those on cither side, the greatest number testify to die &6 
that the vessel was unseaworthy. These were witottM 
residing at Honduras. That circum>tance, and the wn 
of a sufficient knowledge of their charader and credibilit] 
have been urged against allowing much weight to their ta 
timony, when in competition with other proof. Boti 
there be any general reason to discredit the witnesses abiDSC 
other circumstances in this instance operate in their favor. 

1st. As has been already observed, they possessed betti 
means of information. They examined the ship immedi 
atcly after the accident happened. The examination of tk 
two ship carpenters in New-York, from its naturt, dm 
have been more superficial, and it took place seven iboiHii 
before the vessel sailed on the voyage insured. 

2d. In the captain's protest no cause is stated adequate t 
the injuries described. A sound ship, under the circun 
stances therein set forth, could nor, in all probability, hn 
been so injured. It does not appear that any material icd 
dent happened, no external injury was suffered, not a ip 
nor a sail was carried away, although a considerable pm 
of sail was sometimes used. I do not perceive that ife 
thing more is represented to have happened, thaA lAi 
might be expcded on such a voyage, and what a ship fta^ 
to be competent to encounter. •t 

Sd. The captain, in his protest, swears in general teni 
without designating the particular injuries bustaiiied»4la 
refers to the survey at Honduras, which contradifii lii 
testimony. .- 

Neither he, nor any of the crew, were examined aHl 
trial, and no reason has been given why they were H* 
produced. I think it was to be cxpefted from -the.fWi 
tiff to produce them, and by their testimony, it was in M 
power to throw farther light on the subjed. 

There is great reason to doubt the propriety of thi ^ 
did, and, coni,idering the value in controversy! and A* 


G^ can probably be obtained, I think the cause ^^^^^[^ 

oigiit to be reviewed. The circumstance that here was a 
iCnck jury^ is not of decisive weight in favor of the ver- 
tStf especially z% it is founded on a point against which, as 
ipmmd of defence, it is known, considerable prejudice 


• lam diecefore of opinion, that there ought to be a new 
ttiil on the queidon, whether die ship was seaworthy. 

' Kent, justice. The ship cleared out for Falmouth in- 
ittad of New- York. The clearance was for Falmouth and 
9 Hurbf, although the ship was afbually bound for New- 
Twk, She was loaded with Mahogany at Honduras, and 
desDied fram there^ and in 16 days after she sailed, she re- 
toned m distress. 

Ittateno more of the testimony in the case, because the 
fiGb ilflttd are sufficient for tlie only point which / heard 
targmimtbe cause, and on which I give my opinion, viz. 
wheAer there ought to have been a disclosure that the ship 
deaied for a different port than the one she was bound to ? 

la tins case, the insurance was in time of war \ but the 
OK doe« not state that there was any warranty, or repre- 
•rtUkm that the property was neutral, and we are to in- 
tend dinrfore, that there was none. The insurer, accord- 
ing to the decision in the case of Murray v. United Insurance 
Cmfmff^ took upon himself the risk of enemfs property, 
'The non-disclosure of the clearance for Falmouth could 
"** dien, in any possible view, be material, for the disclo- 
Vne of die hGt (if at all material) could only have been so, 

• it afiiecled the neutrality of the vessel. 

r^^diis point, therefore, I am for the plaintiff, and that 
wveidiA ought to stand. 

tf Lewis, chief justice. An application is made to set 
linde die vcrdift in this cause, and for a jiew trial. Three 
^riblbiis are raised for the consideration of the court : 
^' TsL Did not the ship sail on a voyage different from 

**1i. Olight not the faft of her clearance for Falmouth atid 

« n*rkf, pursuant to the orders of the plaintiff, of the 3d of 

iMAef, 1799, to have been disclosed to the underwriter ? 

J lily term I loo. 


jAd^AHV» sd. Is not the verdift against evidence on the pmnt 
' the jii/fj competent sanity to perform the voyage insured T' 

The first question is raised on the faA of the Hope 
having cleared from HonduraSi for Falmouth and a wmki 
"^""""^ when the insurance was for New-York. 

This would be a circumstance of some weight, were 
conneded with others tending to shew that the real into 
tion was a voyage immediately from Honduras to Falmottd 
but cannot, per xf, be sufficient evidence of that h&^ as 
certainly cannot be permitted to controul the counter tali 
mony, which establishes, beyond doubt, that her real destiai 
tion was for New-York, and that the clearance for Falmui 
and a marketj was probably for the purpose of mag cfl 
tain duties, in the event of the cargo ultimately fin£iig t-nai 
ket at a British port. Her consignee at Honduras, fiom K 
correspondence with the plaintiff, understood N tm J Ti 
to be her destination, and wrote letters by her, te t 
correspondents there. The letter of the plaintiflF to thedj 
tain, containing the instrufiion as to his clearance^ dM 
him, in the same period, to return direA from Hoadoil 1 
New- York, as before ordered. Ihe expressions zxt ^Jll k ug 
you are to return dirc^from Honduras to this place (viz.Nci 
York) as before ordered^ you wU clear out the vessel from Hi 
duras to Falmouth and a market.^* This, in my OfMAk 
e-.tablislies beyond controversy, that New- York was tl 
port she was bound to. The first protest of the mastt 
mate, and one of the seamen, in which the btap is rtit 
to have been bound to Falmotah and a market^ is a drcM 
stance almost too slight to be noticed ; for I have ob«efV 
it a practice without variation, for the protest, in tlua4 
speci, to be made according to the clearance, withootl 
gard to the true place of destination. In the 2d pnM 
the master states he sailed for New- York, though cktf 
for Falmouth, thus correcting his statement, when ke4 
covered the fa£l to be material. - "i 

If there is any substantial distinction between the oM 
Doug. sjS. ^f Blanche and another against Fletcher^ Mayne against W 
Firk 195- ur^ and the present case, it is favorable to the 'last 
the two first, the vessels cleared for an intermediate jH 
at which they had leave to touch, the policy condnuiog 



nml at the ultimate port of destination \ in this the 

vould have terminated on her arrival at an intertne^ 

Tty though she might afterwards have proceeded un- 

or^inal clearance for Falmouth. 

next question is, whether the fact of the Clearance 

nouth ought to have been disclosed to the under- 

It is not contended that the concealment was frait- 

and in order to render it a circumstance affediing 

icy, it ought to appear material to the risk. The 

lidb we have on tlus occasion leads to a contrary re- 

Ihere cannot be a surer test of the materiality of a 

lid circumstance, than its influence, if known, on 

I of premium. 

jlew-York Insurance Company were also on tliis 
id near two months after subscribing the policy, 
4» without additional premium, that it should not be 
Iby the circumstance of the ship Hope having cleared 
Fakmttif instead of Nevh-Torh. 
i company must be presumed to understand its in- 
and their conduct on this occasion is decisive, that 
t ooncealed was immaterial to the risk, and there- 
ifdicy is notafTefled by it. 

duvd and last question is on the seavTorthiness of the 
On the argument a novel position was advanced, viz. 
)midefeBs are at the risk of the underwriter; that 
e oorered by the premium, because he ealctdates chan^ 
rding to losses. My first impression, I confess, wa9 
ie to its correctness, notwithstanding the force of 
ity against it. But on examination I was satisfied, 
bongh in part true^ in point of fa£t, it is neverthe- 
icnind in principle. It u true that losses are the 
a which the underwriter calculates the chances of 
id gun* But it is equally true that his not being 
able for inherent defe£t, or natural decay, dimin- 
le number of losses, and thus reduces the chances 
;hini. The implied warranty then, on the part of 
ysed, that the ship is tight, staunch, and strong, 
puppedy &c. remains unimpeachcd^ and on the faft 
wamnty having been complied with, on the pre- 
rests the question between the paities. 

Auguft iloiS. 




Auguil x8oi. 

Marfhall 365 

. The judge before whom the cause was tried, is, in the cas 
made, stated to have instru£ked the jury « that by lavitver 
v.'ssel is presumed to be seaworthy" This I presume tt> ht 
not perfectly corred, or in other words, tliat the instniO' 
tion ought to have been less general, or rather, more pre- 
cise. Every vessel is presumed to be seaworthy in the 
first instance, in respedl to the implied warranty only } be- 
cause tlie law will not, without cause, presume a party tq 
have falsified his stipulation. But the instant she beccnnei. 
innavigable, and incapable of proceeding on the voyage ia?. 
sured, tlie presumption is tliat this proceeds from age or. 
internal defefl, arising from some otlier cause, uotil |t 
appear to have been the cfFedl of sea damage, or unfoce-. 
seen accident insured against. And witli reason is it. so , 
for the insurer engages against extraordinary and tmfir^m 
perils of the sea. And this he does, in the confidence, dat, 
die ship 18 capable of performing the voyage, and assuziag 
to him hi i premium, ordinary occurrences notwithstandiii|i 

. I am strongly inclined to believe that the verdi^ of the 
jury in this cau^e, was owing to the generality of thiin- 
struilrion. That relying too firmly on the prcsufl9{tioii| ai 
therein stated, tliey sought for positive and conclusive ev^ 
dence to the contrary, tliereby losing sight of the presunip' 
tion arising from the want of evidence of external accideoti 
and not duly appreciating die testimony taken under dM 
commission at Hondura , as to the real cause of coodeni' 

The vessel is stated to have been nine or ten years oU I 
the time of die insurance being made j. to have been ^ 
roughly repaired in 1795, examined in April 1799, pieviDP 
to the purchase of her by the plaintiffj afterwards repaip 
by the examiners, Williams and Peacock, two ship caifm 
ters, and purchased on their report. They state, thatafip 
her last repair, she was fit for a voyage to any part of ;tb 
world. This testimony is corroborated by diat of capOi 
Dorgan, wlio commanded her at the time she was fp 
chased by the plaintiff-, there is, however, a variance ll 
tween his testimony and that of the two ship carpeDtM 
He testifies, diat hlic was twice hove down widiin fauMI 
mondis previous to the b Je, some of hor planks rippedpl 



Mrtimbere examin»:l, none of which were rotten or 
i?e. Williams and Peacock, the ship carpenters who 
id her, admit that some of her planks and timbers 
mted^ which Williams says were mended, and Pea- 
that they were replaced with new. 
pposttion to this, is the testimony of Nicholl and 
,fthip carpenters, and Potts, a master of a vessel, who 
led her on her return to Honduras, who testify, that 
itds of her timbers were rotten, several of her planks 
f bends rotten and started. This testimony is cor- 
led by that of Mr. Gil>son, who is proved to be a 
att of respeft ability there, and treasurer of the set- 
C He professes to know little of a sliip, but declares 
any of her planks were rotten, and several of her 
Ii6 much so, as to crumble to pieces when struck 

sie witnesses may be said to be interested in her con* 
ft&ID* The faft may be so. But surely such interest 
* greater than that of Williams and Peacock, who, 
(y, had they discovered or disclosed too many defefts 
SlDold have deterred the plaintiff from purch:*i>ing, 
ntlottthe job of repairing her. 
doeenot appear to have met with any weather that 
lave afie£led a sound ship ; yet, she made .0 much 
tint the master was obliged to return into port. And 
itde singular that if this was the efFedt of any other 
than natural decay, that it was not stated by the mas- 
ome one of the mariners. It is true, that in his se- 
(Otesty he speaks of her having experienced heai^y gnh's 
ims changes of weather^ and yet not a spar i< car- 
ray, no butt started, no sheathing torn off. Surely a 
!ig£f, staunch and strongs could not have been rendered 
laAle by gale> that did not require the striking of 
dlant-mast; for we find the top-gallant-masts and 
landing until the third of February, a day after that 
idi» by the advice of his crew, he had borne awny for 
;df safety. He speaks of strong gales on the l^Sth of 
y," and yet the top-gallant-sails were not handed un- 
ik^^ Where is the evidence then of external in- 
There b none. Nothing tliat looks tow-ard^ thia 

Augult i8#3. 



Church . 




Auguft x8o3. 




point, except his declaration, that on the survey, the dm 
of the ship was found to have proceeded from the 
gales, in which they were obliged to carry an unusuai j 
sure of sail, as (says he) is more particularly set JmrA it 
" survey : Now the survey says dire£Hy the reverse, and 

responds precisely with the depositions of the witnene 
the part of the defendant. 

I think the testimony will warrant no other condi 
than that she died a natural death. This opinion I fi 
on the fa& of no extraordinary peril having been incu 
and on the testimony taken at Honduras, which I chii 
to be preferred to that taken here-, because, those $extc 
for an infirmity, known to exist bomewhere, were i 
likely to discover defeats, than thcstj who gave her a cu 
examination for the purpose of recommending her tQa 
chaser, and of repairing such defe£ls as occaskmaU] 
under their observation. 

The cases of Lee v. Beach, and of the MilU fi^ 
were r.ttended with circumstances much more favoiaU 
Park"2ii"^*^^* the owners than the present case. In the fonnerfcthc 
>el had been, as was supposed, completely repaired .in 
diatcly before sailing from tlie Thames, and was (fiactn 
to be unsound before she reached Portsmouth. In the o 
the thip had not only been put into dock and repaiiedi 
vious to her departure on her outward bound voyage t 
West-Indie.*, but was, while there, again surveyed b] 
sea captain^, and reported to want caulking only» i 
slie would be sufficient to caiTy a cargo of sugars to . 
don. Yet, in both these cases, were the underwritcn 
charged on tlie point of seaworthiness. 

I am of opinion the verdift ought to be set aside i 
new trial awarded on payment of costs. 

Livingston, justice, having been concerned in theo 
gave no opinion. 

PraAicr on rc- 

r\i»vnii' Tuits 

ir.t>i 'icuit 

Joiin J. Arjo ogairist Joaquim Montci|t>i 

BY tlie court. If an alien defendant file his petit^ 

to remove the suit into tlie circuit court of the Ul 

Statcvs, at the time of filing special bail, he is in set 

tliough the bail may have been excepted to. 



Jackson, on the demise of Hogeboom, against 
John Stiles, Austin Griffin, tenant in pos- 

A TTrLE to the premises in question had been awarded 
to the lessor of the plaintiff by the commissioners appointed 
tosetde disputes to land, in the county of Onondago, and he 
bad served declarations on the tenants, with the usual noti- 
ces annexed. The declarations however, contained blanks 
fcr Ae towns and counties, which at the time of service, 
Wereiiot filled up, nor were they, in the copies annexed to 
the affidavits of service, and filed with them, on which the 
iL^ual rule was entered. The declarations were served on 
fte tenants within the three years allowed by law for prose- 
cuting die titles awarded, but they were now elapsed. 

Spencer, on these circumstances being disclosed by the 
t&davit of the plaintifPs lessor, stating also the services 
tring been made witli the full intent of carrying into 
«ft& the a£lions instituted, moved for a rule against the 
tenants, to shew cause, by the first day of next term, why 
Ac dechntions should not be respeftively amended, by the 
inseition of the names of the towns and counties, and that 
fixing up the rule in the clerk's office, should be deemed 
good serrice. 

Emmott Are the tenants to take notice of declarations 
which are mere nullities, void in themselves, and to which 
Aey are not parties ? They have not appeared, they are not 
fe coorty and John Stiles is the only defendant to the suit, 
ftatcanbe known by the record. 

Per cnriam. Notice having been served on the tenants, 
it was enough to put them on enquiry. There is time 
I' cnoi^'fcr them to come in if they please. Take tlie cffeft 
' ^7001 motion. 

Cole against StafTord. 
W dug cause the exoneration of bail, whose principal 
, U been relieved under the insolvent law, was opposed on 
L- wgkimnd of the discharge not having been duly stamped 
^ccQBfingto the a£l then in force. 


Auguft x8oj. 

After rervice of 
a declaration In 
ejectment on 
a tenant, 
though it may 
be a totaUy in- 
formal one, it 
is fufficient to 
fet him on en- 
quiry, and if ■ 
nileto Ihew 
caufe why the 
plaintiff fhonM 
not amend be 

£ anted, affix- 
g in the 
clerk's office 
is good service 
on the tenant. 
If proceedings 
be commenced 
for lands to 
which a title 
is awarded bf 
the commis- 
sioners for set- 
tling dilutes 
to lands in 
within three 
years after, it 
is sufficient, 
though they 
may befiuUyy 
and require 
amendment af- 
ter the three 
years, to enti- 
tle the plaintiff 
to proceed. 

The want of a 
ftamp toanin- 
folTeot*s dif- 
charge cannot 
be urged as a 
reafon to ihew 
it not duly ob- 
tained and pre- 
vent the exone- 
ration of Us 
bail. Fraud 
only can 9ffcdl 



Auguft 1803. 

A motion can- 
not be made to 
writ ofinqai- 
ly, in tke pos- 
icfiionof the 
pliintiff, not 
returncdt ind 
on which no 
loqiiifitlon has 
been taken. 

panneUed un- 
der it, and has 
giren a ▼erdidt 
00 a hearing 
contrary to the 
terms df a 
written agree- 
ment, the 
court wiU 
five leare to 
Issue a writ of 
inquiry de 

Per curiam. We cannot go into it ; the aft makes th 
discharge conclusive except in cases of fraud ; the matte 
was before die court below, and they were the pnpet 
judges whether every thing was regubr or not. 

Garrit Abeel against Wolcott, who is impleaded 
with Van Norden. 

VAN VECTEN, on behalf of tlie plaintiff, moved dot 
tl*e writ of inquiry, and proceedings stated in the a£Bdaviton 
which he applied, should be set aside, and a writ of inqnixj 
issue de novo. The affidavit set forth, that by an agreement 
in writing entered into between the attornies of the paities 
it was stipulatetl that on the execution of the writ of in* 
quiry, every defence which could have been made, had t 
trial taken place, should be availed of, that both sides shooU 
have the same liberty of excepting to the admissibility of 
evidence, reduce their objefkions to writing and make a case \ 
in the same manner as if the cause had been heaid at die 
circuit. That the evidence of each party having been gone 
through and closed, the attorney for the 'plaintiff went 
home, after which the jury called in the defendant Wokotfs 
attorney, and asked him if a verdi£): should go against Wol- ' 
cot, whether he could recover his proportion agunst Vat 
Norden ? and whether, if it sholud be against the plaintiff ^ 
he could. carry it before the supreme court ? To the fii< 
of which questions, Wolcott's attorney answered no ; ani ' 
to the latter, yes 5 in consequence of which a verdiA wai ' 
rendered against the plaintiff, but the writ has never beet • 
returned, but has been handed to the plaintiff's attonefi ' 
without any inquisition annexed. 

Per curiam. The application is to <et a&ide a writ of 
inquiry, when there is none before the court. Then » 
no return, no inquisition, and nothing to set aside. The* : 
MTis a written agreement, which docs not appear to b** 
been complied with. The plaintiff is in possession of lu> 
own writ of enquiry, and we see no objedion to his 
a new one, for as the writ is not before us* we 
grant him the effect of his motion as to setting it aside. 


le demise of Fiacli aiid others, agahist th^^^Z\ 

. » ^ /JUgUSt I BO J. 

Johaniiis Kough. ^^i*p-v-^i^ 

LTIONS had been served in these causes Jackson 

S SlgO* Kou{rh. 

moved to amend by inserting several de- 

, - ^ After Six yc?.r» 

crent lessors, service oid^cU- 

Dscd it on the ground that it might vary the j,?^{n"^tnj " 0^;^ 

will on tcrmtv 
^' give leave to 

observed, that in the Warren-Bush cases, amend by ad^ 
; had been done. If the defendant relin- xui»ei, 
ice, then all the costs heretofore incurred 
, if he abide by it, then there is no injury 
»8ts in the first case must be paid up to the 
5 plaintiff is willing to do, and accept any 
cause might be brought on at the next cir* 

Amend on those terms. 

3tn Der Mark against James Jackson on 
the demise of Ostrander. - Thedcfcndaat 

fudemcnt havintr been entered in the Court »" '-rror cannot 
leas for the county of Ulster on a verdict piaintitrs writ 
fendants, the present plaintiff brought his turned. 
etumable in tliis court. To this the Clerk 
1 Pleas made his return in the manner, said 
Qsually practised in that county, by anncx- 
t of the record, and delivered it to the now 
•ney, who sent it back with directions to an- 
al record. This was not done but the writ 
\ the plaintiff's attorney with only the trau- 

It, without any scnricc of a scire facias quarc 
on, and, without givhig any rule to assigu 
»8sedthe plaintilTs w^fit, before it had been 
filed, served him with a copy of a bill of 
d out a writ of possession. 
n affidavit of these facts, moved to set aside 
: of nonpros for irregularity, and that if 
issesiion had been issued, a writ of re-rcs« 



AJigM^ ite'. Per curiam. As the vnrit was never returned 

Vi^-v^^^' court was never in possession of the cause ; whatQ|M 

jac^wn j^^^^ done here, must therefore be set aside.- Take 

• Sec i.f ith V. Bcriah Wiclps against Trisdale Eddy. 

huTT 17^2 'ac! WOODWORTH, on an affidavit statingtliat issw 
'^T^R- ^"J^,*^ ^^^^"^ joined in this cause in November 1801, and nc 

„ , ' ^ for trial at the last circuit for the county of Columbia 

Tfadtfcndant , , , r . i - *. 

move forjisdR- not brought on, moved for judgment at m case of 

fntnt of non- 

Huit contrary to SUIt* 

court wiV^*^ Williams read a counter deposition acknowlcdgingjA 
?hcVrii!'^fon!^'*^^» but adding that the attorney for the defendant di< 
(usinf. attend; that his counsel hov/crcr was there, with whose 

sent, an agreement was made between the agent fo 
defendant and the plaintiff's attorney, that the cause sb 
not be brought on before the Friday in the second^ 
of the circuit, on the Tluirsda\'^ next preceding w 
day, the court adjourned ; that it was impossible to»4 
on the triiil during the circuit, because, in consequenc 
the agreement entered into, the plaintiff had sent his 
nesscs home, and they were not to return till the Fi 

Per curiam. Let the defendant talce nothing bj 
motion, and pay the plaintiff his costs for opposing. 

John Russd against Jonulhan Ball and other 
- . THE court ruled in tl^is cause, that service on the I 

Pfnrt«."f on a- 

icat. Coals, of an attonicy plaintiff, is as good as in any other 
and that it need not be personal. Also that though 
voidable occurrences may prevent judgment, as in oi 
nonsuit, yet they will not, separately considered, cn 
from payment of costs ; for the misfortune of the pU 
ought to be borne by himself, and not work a prejudi< 
the defendant. 

Jackson on the demise of Green and others, ag6 
Limit, areai. Robert Billings. 

IZ'^n c^xccul THE defendant was a prisoner with the privilege d 

nnucbmcu: fTr ^"'^^^^ ^^ ^^^ ^^^ ®^ New-York, While so in confinen 




i^ilacliments were issued against him in this and fifteen ^^■^^^\ 
iMihcsr suits, for contempts in not paying; costs pursuant to ' *" 
fn order of court- On their being lodged against him, 
the Sheriff committed him to close custody, under an idea 
that an attachment for a contempt was in all cases a crimi- 
•, nal process, and the defendant therefore not entitled to 
, Ae indulgence of the limits. 

The case was now submitted to the court, whether the 
defendant was within the meaning of the privilege. The 
court were unanimously of opinion tliathe was, on giving 
'«udi security as the law requires. 

' Gardner I lerrick against Samuel Manly. 
THIS was an action of trespass for false imprisonment. deSvm' t^ s 
t The defendant pleaded not guilty. The cause was tried ^^nf tgainst 
cnthct^ventv-fifth of Mav, one thousand eirrht hundred and }\. d^^^'-»^iint 

* ^ " ' -^ III h:s ov.'n siiir. 

If wee, before Mr. Justice Kent, at the Rensselaer circuit. «>:» which the 

j|J,,,^„-„ i»», 11 , defendant U 

lAC plaintiit called Samuel llawley, a constable, and prov- tukcn and iw 
cd, by him, diat he arrested and imprisoned the plaintiff onLr and du 
.bf order of the defendant* The counsel for the defendant SahumTjcannot 
then asked the witness, by whose authority he made "^j^j^^fj*^ j^j^'/J^" 
such arrest and imprisonment? whether it v/as not by r '*^ r 'J*^^*''"*^"'^ 

* ^ , , -^ tor false impri- 

vutue of an execution issued by a justice of the peace, s'>"nient,undcr 

J !• 1 « . 11 • 1 , . . ^ . tli<i general i*- 

oeuvcrcd to him as constable, against the now plamtift, in six, give the 
fcvor of the now defendant ? His honor the judge over- in "^^vid^cc^by 
p. mledtfiese questions, being of opinion, that it was suffi- ^^y^n^'^yi.j*^^^^^ 
r dent for the plaintiff to prove that Hawley imprisoned him J.*^^^^*^^"!*^. ^"'' 
I* fay^^i^ of the defendant : and that it was not competent pleading in ccr- 

JL.,--, 1-1-1 1. tain suits, but 

. wr the defendant to explain by the same, or any other wit- he may do it in 

' I •en, either the cause of the arrest, or the authority by thattiie dJfcu- 

•fcich it was made. The defendant's counsel then stated, ai?",'steTby hu 

\ sad offered to prove, that Manly recovered judgment}JJ|;^™f^V^*;^j 

Herrick before a iustice : that execution issued a fuiKrior au- 

• . thority, 

^nst the defendant on that judgment, and was delivered 
fcy Manly to Hawley, the constable ; that Manly requested 
Htvley to imprison Herrick on the writ thus delivered, 
^bich he did ; and that HeiTick was liable to be imprison- 
' don the execution^ These facts, it was contended, might 
' ftopeily be given in evidence, under the general issue ^ in- 




Ai^usuHoi' asmuchas the defendant came within the statute, for tftfl 
more easy pleading in suits, &c. The judge overruled tfatf* 
testimony ofTercd, and a verdict was found for the plainQiP 
for fij'ty dollars damages. > 

Tiie cuae now came before th« court on a motion Car a 
new trial. ': 

Woodworth for the defendant. Two reasons may ht', 
urged why the present verdict should be set aside. FinV* 
the judge refused evidence proper in mitigation of di-' 
mages : Second, he overruled t/iaty which was proper irf 
justilication. As to the last position, it may be doubted'! 
whether the defendant could justify according to the 8ta»|1 

• ti March, tute,** '' for more easy pleading in certain suits," though^ ; 

I^'.ilwsaj^' '^^ certainly must be allowed to be within the spirit of iti^ 
The words are, " If f any action upon the case, treipM||l| 
" liatter}-, or false imprisonment, be brought agunstahf^ 
" sheriff, &c. or any other person who in their aid or ah j 
** sistance^ or by commandment^ do anydiing, &c. it shall be* i 
" lawful for every person aforesaid, to plead thereunto tho^ , 
" general issue, and give the speciid matter in evidence." 
]3y a liberal construction of this act, it may well be said, 
that Manly acted " in aid and by commandment" of thi- , 
justice. An execution had issued ; it was delivered owT^ i 
to the present defendant by the justice, to be by Iu**l 
transmitted to tlie constable. The orders of the defell*' i 
dant, for the arrest and imprisonment, were nothing moW*j 
than a repetition of what the justice commanded him to tfft j 
On the other point, the evidence must be considered ai'^ 
clearly proper to have been received, and the rejectifl*^ ' 
therefore not warranted. Whether Manly had aaubstttt*'; 
tial defence to defeat the action or not, could be knot*'* 
only by disclosing facts, which would present a diftr» 
ent case than that stated by the plaintiff. They ought tli^' % 
to have come before the jur}', as a measure of damagei* .. 
If asked whether the imprisonment was made under i- 
lav/ful authority, or of his own will, the answer, accordiBf 
as it was given, would lead the jury to very different cfli» ' 
elusions. Had it been done, the plaintiff in this cM 
irould not have been eniitled to more than opmiiud df 


:s. Suppose the action assault and battcrj-, and the j^^(^^* 
idant neglecting to plead an assault demesne, rests on 
niL At the trial the plaintifT proves an assault, but the 
I witness can testify that the plaintiff struck first ; can 
the shewn in evidence on the part of the defendant ? 
[igh this might not justify, it would greatly mitigate.* • ^he ircncral 
question on the trial, on the part of the plaintiff was, ^^ttLT of jS^ti- 
dyou imprison the plaintiff by order of the ^c*^"- ''[|?Jj^3'"bj^^^^^^ 
Bl?" The question on his part was, " Were you au- Ni Pr. 17. Co. 
onzed to do so : The answer would have been But fee Bing- 
ii£ I have the execution to shew ;" but this was not auit,idp. Nil* 
utted to be done. Whether this would have amount- one ^f ih^^'*^'* 
ft m iustification or not, is immaterial; all that was P****"^** * "^^^ 
ed was, to shew that the plaintiff was entitled to no- croYexamina- 
I damages only, and to reduce them to that. Again, dant in an ac- 
OBcanofiicer acting under a void process,and the plaintiff and false im- 
n an arrest, would not the court allow the defendant fi"ved"u!"rc- ' " 
cw the process , though it was an illegal one ? This, laWauhcUmc 
aiic, would not be a justification, but it would be a ^" *"*'*2'i"'>»»- 
^on. Therefore, in cases like this, the application 
theditcretion of the court, and they will see that jus- 
be done to the party aggrieved, when there has been 
tion against all conscience. Instead of six cents da« 
!8| SO dollars have been given. This is not one of 
J cases where the court refuse new trials, because the 
recovered is so inconsiderable, that it would be ab- 
to have recourse to another. The reason does not 
rjiere, because, allowing the verdict goes the same 
die court are not sure the result will be the same : 
sola only may be given, and then costs will not follow, 
t the judge certify. Bu^ as the verdict may be dif- 
t, the court surely will never presume both that the 
ict shall be similar, and that the judge will certify also, 
« are many circumstances to induce a new trial ; not been a full disclosure of facts ; the whole 
f has aot been told, and therefore justice has not been 

Den contnu On the point first argued, though the 
batwai BUde, it is to be obscn^ed, that the statute 


Au^ii^^ilto' °^ ^^^ '*^^^ *^ ^ transcript of that of James ; the aut 

v^^-y-^^' lies ihtreibrc, on the construction of /Aa/, will govei 
*'7?^ the consick-ralion of the present case. The defendani 
^^'^^y- avail himself of that statute, ought to shew, that he i 
ofiiccr within its meaning ; that he was acting by virtu 
an rAUhority from the justice, or in his aid, or by his c 
niand. Ifhe does not do this, he cannot avail himsd 
the statute o Burr. ir42.* Further, if the defendant ia 

•Moncy&ar shewn to be liable, in consequence of neglect in con 
ing with the justice's command, he is not an officers 
in the meaning of the law, Doug. Sor.f It is not st 

+ That was an {[^^i he received the execution from the hands of the 

appHcation to ^ . . 

enter a ^uj^jt*- tice ; nor that he was an omcer, nor actmg m pursua 
roll, thit the of any authority, nor in aid. It does not appear by n 
a*conttabK-7?o nicans the execution came into his hands. If he m 
co^tl^*^^ they've!- ^" shelter himself under the justice of the peace, he i 
. <iicthavinp shew II coiiiiexion or privitv between himself and the UK 

bccnloiindin . • "i i i* • i «* 

hh favor. By ti\ite. Thi.> Can only be done by plcacung right. If 
jury who try tice has \mt been done, it is the party's own fault. 
«v/thc mi^^^ misplccidin'T is tlie source of his complaint. Whentbec 
^magLsj;ivcn. j.,j^l)i^. was asked wliether he did not proceed upon an< 
cution, it was a justiiieation ; and as no notice bad I 
j;ivin5 tliat it was intenJe.l to l)0 relied on, thepku 
was not prepared, and niight have been prevented from 
ii»n; away its force, by showini; it amounted to notl 
ISol, tliercfore, hiivin;] done wliat tlic law requires, in J 
a c.iie, but n !yino; on tlic r-eiiLral issue, the dcfenda 
now prjeUided. It was enough for llie plaintii? to p 
(iiat the defi'ivJiiTit did impri.son. This was all that C 
be tliouo'Iit neecssary ; tlie plainlilf rested his case at 
point, and could never imagine it vrould be attempte 
iiiirociuce a iustlfieallon, of wliieh no notice had everl 
ir.tiniatid. The complaint, therefore, now made, d 
justice l!i;vi?yj^ been done, could never have existed, 
tiie dt-^eudant adhered to tlic rules of practice. Thet 
nioiiv, tiierelon^, was properly overruled, because, oi 
ihogener-.l iss;:e, notice of jubtification ought to have 1 
given. The witness having been the plaintKTs, does 
aiier the matter. If the defoiidant is about to draw outJ 

tffi STATE OF NEW-YORK- 257 

Y not admissible, it is the Jiame thino; as if en- Ai.fiANY, 

, . , .^ . i. , , August! 803. 

be given by ^ witness on the part of the de- ^ m—\-^_' 
\ the plaintiff has a right to object. The court Hcrrick 

a case again, wlierc the expencc of going to Manly, 
il, will amount to as much as the damaccsTI 

' o # Sec note aat« 

page zsi 

reply. The authorities cited from Burrows 
;, requiring a party who would justify to shew 
between himself and the officer, in aid of, or 

he acts, arc not applicable. They must be 
ty cannot be presumed. Where no command, 
5, or implied, is made to ai)pear. In the pre- 
5 implication, that the defendant did act in 

command o[- the justice, is irresistible. A 
1 been obtained by the defendant, an execu- 
I issued, and was delivercJ to the officer, by 
it must be presume J, liad applied for it. It i» 
lerhaps to shew a delivery of the \W\t by the 

defendant, but as every tiling would induce 
:hat it was so, it ought to liave been left to the 
•mine from the evidence, ri*a<ly to be olVored, . 
id not merely act in aid of the justice. Thi< 
, so much insisted on, would have been shewn, 
CQuld not but have said, the imprisonment was 
iid ; the case, therefore, within the letter, as 
of the act. Though the pleadings miglit hav* 
istification, surely a mitigation was allowable, 
)int of view, the evidence was improperly re- 
s amount of the verdict, when connected with 
not be so inconsiderable as is supposed ; there 
rbom it would possibly be half their fortunes, 
nt, therefore, should a second investigation hot 

1, delivered by Le wis, chief justice. An appli- 
made for a venire dc novoy on the ground of 
, on the second poir.t of defence. 
idant having been the mere bearer of the writ 
Q execution in his own suit) from the justice to 
ii can neither be considered as a bailiff, or dc- 


ALBANY, putv, within tlie letter or spirit of the statute, and of cc 
August i8oj. '^ . , , , , ^ , . . , 

' not cntitJcd, under the general issue, to give the qx 

matter in evidence, by way of justification. The testimc 
as it was oflerod, was therefore properly rejected. Ti 
' is, however, a point of view, under which had it been ; 

rented, it would have been proper, and ought to have I 
aiiniittcd. The only ground on wliich the liability of 
V^ defendant is contended for is, his Iiaving directed the ofl 
when he delivered him the process, to arrest and impr 
the plaintitF. If, then, it could have been shewn^ that 
arrest and imprisonment wus not a consequence of his 
Ktructions to the odicer, but in pursuance of a compel 
and paramount authority, his plea would have been s 
stantiatcd, and a verdict would have passed for him. Fc 
'the arrest and imprisonment was the cH'ect of any ot 
cause than the instructions he gave the officer, he was « 
phatically not guilty, and it was not a case for justificati 
AV'e are therefore of opinion the verdict be set aside; bu 
must be on payment of costs, as no misdirection apptsu 

Erastus Baker and Sylv(\^tcr Rowlson against Ri< 
ard and Ilonry Arnold. 
ASSUMPSIT on a promissory note by their indor 

against the milkers. 

f suft mry^»>^'' ^^"^ ^"'"''^ '"'^^ ^"'-"^ ^''^'''''' ^^'' J"^**" Thompson, 

^•Kc^s^ioTroi^ Albany circuit, in September 1S02. The plaint 

thcstutc of an proved, by the testimony of their attorney in the « 

xvhcnput intotnc handwriting of the makers, and, by another witw 

ind-'iior'of' "^^^^ of ^^^ indorsor who was also the original pay 

"p^ -'toiiiove "•''^^"S done this, they there rested their case. The i 

n';.!" mal" *"^*"d^*^^s relied on the note's ha^ ing been given on an 

nurrhcnotc gal Consideration, and indorsed after it was due. 

substantiate these points they proposed to examine 

attorney of die plaintiffs to the following questions: : 

Whether he had ever seen the note before the Buit^v 

brought ? and 2d. whether, at the time of its commen 

mem, the name of the indorscr was upon it? This* 

resisted by the counsel for the plaintiffs, because tendi 

to a disclosure of facts confidentially communicated Uijl 


nitness as attorney in the cause. The defendants then J^^^^^\ 
laid, that they would confine the question to the witnesses 
own knowledge, and did not wish to extend it to any in- 
fixtnation derived from, or communicated by, the plaintiflFs* 
The witness then said, he had no knowledge of the note^ "^ 
^vious to his being retained by the plaintiffs, nor of any 
fKU or circumstances relating to the matter in question, ' 
. excepting such as had been confidentially communicated 
^toliim by the plaintiffs: but that he had, prior to the 
brinpng the present action, instituted a suit in the name 
- o( tke mdorsor payee, against the defendants, which, on 
accoimt of some unfair practices by them, had been dis- 
cntinued, and the now pending action commenced 
ihordy after. The defendants then called the indorsor to 
'iBrify that the indorsement was made after the note fell 
^ The learned judge, however, rejected his evidence 
> Ifonthis ground ; that no person whose name is on nego- 
I tUite paper, and has given it a currency, shall be permit- 
M to impeach it. The counsel for the defendants then 
Vged that they would waive all testimony that went to im- 
I peadi the note in any respect, or the original contract bc« 
tween the parties, or to prove that payment had been 
inade. That they would confine their question to this ; ^*At 
wliit dme did you indorse this note ?" But his honor over- 
niled the question as improper to be put. The plaintiffs 
A^ to repel the suggestions of the defendants, and to 
JifOft that they had treated for its payment, read the foU 
btbg letter. 
, « Troy, March 4ih^ 1799. 

* Xr. Sylvester Rowxsoir, 

^ On my return home, I immediately informed my bro« 
^ ther of the conversation that had passed between you, 

* Mr. Baker and myself, on the subject of our business ; 
^ riace which, we have been round to all our friends, to 
^iee what assistance we could get from them, or what 
V^coidd be done in the business, and I am very sorry to 
^iafcrai you, that we find it a thing impossible to raise 
^ lilt money, af the situMtion of several of our friend* 



AiiS^'to' " *** "^ some respects like our own ; and people in geir 

V V— ^ ^' i'^" here, are so much embarrassed, that it is imposub 

Baker « to get them, who have got any money, to advance as 

Arnold. " upon land security, which is the only kind in our powc 

^""""■^■"^ " to give them ; and I know of no possible way in whic 

^^ we can pay it, unless you will consent to take part of 

^^ in the lands that I proposed to you. If you will coi 

^^ sent to make a discount of 12 1-2 per cent on the not 

" which is £. 330 this currency, and will take two loU 

*' the land, which will be 500 acres, at a dollar, which 

** now stands us in, we will, by some means or other, tui 

^^ Mr. Baker out the remainder part in money, say 7k 

^^ dollars, and the rest in such property as he can reafi2 

^^ I wish you would shew this to Mr. Baker, and if 1 

^^ and you will consent to it, I wish you would come on 

^^ soon as you possibly can. There will be no occasit 

*^ for his coming, as you can do the business for him ai 

*' yourself too. 

" (Signed) RICHD. ARNOLD.** 

The court then charged in favor of the plaintiflfs, ai 
the jur)' formed accordingly. It was now moved to i 
aside the verdict, and grant a new trial, the judge havii 
rejected testimony which ought to have been received. 

Woodworth for the defendants. I understand the 
has been a decision in this court corresponding with th 
in Walton v. Shelly, 1 D. & E. 296. 

Court. There has. 

Woodworth. I have however, to move to set aaidiA 
verdict because the judge overruled the testimony of d 
plaintifF^s attorney,aud because though the authority of Wi 
ton v. Shelly be admitted to its full extent, yet as the i 
dorsor in ihe present case was not called to testify to lA 
would invalidate the note, he was not within the lettpri 
spirit of ihe case relied on. With respect to the fintLPpo 
we are ready to concede, that attomies and coui^sel 99PM 
to disclose those secrets which their clients communloM 
But in this case he was not called on to testify to 9fkj0 
circumstance. Having seen the note, he was ask<s4.Plfif 
iv, whether he had not stew it. m a situation different iiMH 
tiuit in which k was ^iod\ic<idL\ T\i\^^^^\xwi^^«^ 


Aoea not in the least contravene the ffencral rule. He ^^-^^^» 

■ .II- Auguintoj. 

upt have seen it before the suit was brought, without v y „i 
indoncnient, and without any communication. If so, he ^a^cr 
wght to have been interrogated as to tliat fact. The Arnold, 
boundaries of the line of practice in this respect, are ac- — — — 
cntteljr laid down in the books. BulL N. P. 384. Esp 
DLrir. ^ The rule is confined to cases only, where the 
** lltomey is called to prove facts, communicated to him 

* by Us client, in the course of bmhiessy and instructing 

* Um professionailyJ^ 

** A counsel or attorney, may be called on to prove a fact 
[ * of their own knowledge ; of which they might have 

* krit knowledge without being counsel or attorney." 

* As if the question was concerning a razure in a deed, 

* 4ey may be examined, whether they ever saw such deed 
^ ^ ^ different plight ; for that is a fact of their own 

^ * bowledge, but they may not be examined as to ex- 
[ * fressions of their client." Lord Say and Scales' case, 
ikdded lOth of Anne by advice of all the judges. 

" 80 if they are to be examined as to the true time of 
" the execution of a deed." Bull. N. P. 231. These 
ttthoritiesgo the whole length of the case before the court. 
No coomiiinication was desired of the witness as an attor- 
^* Had he ever seen the note without indorsement ? 
Tltthe must have learnt when it was put in his hands : he 
^ flat?ed bis information from that circumstance, and not 
favi any communications made. This, therefore, is per- 
fctlf analogous to the razure in the deed ; because, the in- 
^MoQ of the paper furnishes the answer, and the corn- 
s'' UmiMioDS of the client are not wanted. No confidence 
[ iKliofatod ; a simple fact, arising from the attorney's own 
, |>(lonl observation, is all that is required. The object of 
vb.ttqpiiry was to obtain the true time of the indorsement ; 
%BtJBCl in i>erfiect harmony with the case put in Duller, 
fTiH einuuination as to the true time of executing a deed. 
91k |feriod of indorsement, we endeavoured to shew, both 
vil^'attdr^ and indorsor. We alleged it to have been 
> write cammencement of the suit ; but the testimony of 
jwhyiwi wilnesscs was rejected. If the question was pto- 


ALBAOT, per, we were shut out from our defence, and this at onem 
1 ^ ^ is enough to warrant a new trial. On the second pointy ii 
Baker is material to enquire, whether the court will extend die 


Arnold, rule in Walton v. Shelly so far as to preclude an indonor 

— ""■"~~" from speaking, where what he may say does not go to in-' 

validate the instrument, and is therefore clearly disdocl 

from the principle of that case. It is necessary, in order 

to determine whether the evidence was properly refinied,' 

to observe, that we entirely disclaimed every pretence flf 

invalidating. All we did was to aver a fact which gsie 

us a right to defeat this suit. So, that admitting the audio- 

rity of Walton v. Shelly, it does not apply here. To Am 

this, it may perhaps be necessary to investigate what iiUtt 

point of ttie rule as then laid down : it seems to have beet 

founded on public policy. By examining tlie defence ift 

that case, and those of a similar description, it will appetf 

that it went to destroy the contract, and therefore the coort 

said, a man who has sent a note abroad, shall never aam^ 

diet the instrument ho lias contributed to render cnmeDti 

and thus vitiate it in the hands of an innocent holder. • If 

the principle be sound, an indorsor, if examined for thii 

purpose, should be rejected. But here no attempt me 

made to set aside the note ; no tendency towards aftetiof 

public policy is to be seen. The aim of the defendant wi 

to impeach the practice of the attorney, and prove thetJi^ 

sue was joined, before the right of action accrued. Hi 

plaintiffs must know when then: right conunenced, aiA^ 

evince t/iatj docs not touch the instrument or conwklli 

tion. An indorsor may testify to collateral facts, WMlft 

nected with the validity of the paper. He may proT«figM 

mcnt : for that docs not destroy what he has made callMI 

Therefore, policy is out of the question : if it be adnattrf 

to operate at all, it nmstin favor of the defendants* • WM 

the plaintiffs commenced their action, they knew tbofid 

not any right. The indorsement was afterwards mad^ IMii 

away the equitable and legal claims the defendaflto:! 

set off what might be due to them, from him wk 

niands against them. To the note itself, it is . 

when the indorsement was made, whether befim witfi 


II due : but to the defendants it is niateria] in the high- Albany, 
legiee, for it either a^rords, or takes awaj-, their only^ 
as of defence. Before the decision in Walton v. Siiel- 
17 disinterested person, not infamous, nor incapable of 
f sworn, was a competent witness, leaving his credi- " 
r to the jur\% It was not till then that the principle 
larrowed. But as this case steers clear of impeaching 
ilidi^ of the note, the indorsor ought to have been 
fed. The letter of the defendants does not impair 
defence. If the plaintiffs had not a right of action 
I they commenced their suit, for want of an indorse- 
f die letter does not cure the defect, and work as an 
wment. It was written under an idea of the note 
f indorsed, and that the plaintiffs were legally entitled 
e. If it turn out to be otherwise, the misconception 
wt vary the rule of law, which ordains, that all plain- 
to warrant their appeal to a court of justice, must 
a lawful claim to what they demand. 
sny contra. Two points are raised for discussion. 
fiat relates to the competence of the plaintiffs' attor- 
to prove the state of the note at the time of the in- 
> of the suit. The second to the competence of 
to establish that the note was indorsed after 
idoe. On the first point, the law has been correctly 
L • Whatever facts have come to the attorney's 
ledge by confidential communication, he cannot be 
^tOilisclDse, but to facts derived aliunde, or from 
mtk observation, he may be compelled to testify. 
Ipplkation of this rule is the only dispute. The at- 
f', flspressly declares he had no knowledge of the 
htfoire th^ commencement of the suit, and such on-* 
rms confidentially communicated by the plaintiffs. 
^caB' therefore be no doubt as to not admitting him 
pro the time of the indorsement. The authority 
kes for the exclusion. There the razure 
the deed came into the attorney's hands, 
iriDMiqucady, the information could not have been de- 
iMAmKshU client, but from his own observation, 
fi tm^MM Uj' witnesses 8 deed, he stands in the 
I rdatioD iQ boibpsutics, and is put there for the very 


A^vM Tfoj. pun^ose of testifying. From the course of the cransactio; 

^ y ^ it appears, the fact enquired into could have been knoip 
*|^ by the plaintiflFs' attorney, only from committing the not 
■^™^* to him to bring the action ; this, therefore, is a confidentii 
communication. As to the second point, the principl 
on which the testimony of the indorsor was refused, 1 
exactly that of Walton v. Shelly in 1 D. and £• an 
Winton v. Saidler in this very court, July 1802. EYcrj 
argument from policy to be drawn from those cases, ii 
applicable to this. If the indorsor is to shew that the ht 
dorsement was made after the note was due, he may !» 
tally defeat the recovery. For it lets in all equities whidi 
might be urged against the original holder, and may, ii 
effect, destroy the note, under the pretence of not im 

peaching it. If so, then the rule of policy is as 
in one case as the other. In addition to this, the defead^ 
ants, by the letter of Richard Arnold, acknowledge dhl 
debt, and offer a mode of liquidation. The effect, them 
fore, is not only to recognize the debt, and the right of the 
plaintiffs, hut to waive every objection as to conuderatioa 
and time of indorsement. It is a plain avowal thatdiB 
merits are with the plaintiffs, and surely the cmirt wift 
not grant a new trial to hazard that to which the defends, 
ants allow we are entitled. 

Spencer in reply. It would seem, from the arguBMM 
of the opposite counsel, that our only view was to diifi 
that the right to sue accrued after the action broagbtt.llil 
object really is to prevent our being excluded froaia#] 
equities, by an indorsement after the note was ftijMh 
and to let in proof that this was one of the SusquehttlilK 
notes, which have been set aside whenever presuMlAi 
The court will perceive that there was a former suit Ul4i 
name of the original payee ; that however was diaocmd^l! 
ed, because a verdict could never have been obrahw^lH 
it, the present action then commenced, and a av 
indorsement made. That the knowledge of thia ' 
fidential, is a mere supposition of the attorney, 
gines because the note was, before institution o£ liiaHrti 
cion, put into hb handa without an indoncMM^ Atf^ 


ibrc its being afterwards indorsed, was a'confidential ALBANY, 
iunication. We deny that ; and so, though we al- *^ ^ 

le cases of Walton v. Shelly and Winton v. Saidler, Bafcer 
Dtcnd against their applicability to this now before iimokL 

urt. ' ■ 

mpson, J. This was an action of assumpsit, brouglit 
plaiiitifls as inclorisees, against the defendants as ma* 
f a promissory note, dated the :;ist day of March, 
for the sum of 330 pounds, payable to one Roswell 
rd, on the 3 1st day of March, 1799. The indorse- 
f the note purports to have been made the 30th day of 
t 1799. On the trial of this cause at the Albany cir- 
kSept. 1802, the execution of tlic note, and the hand- 
; of the indorsor, were proved. The defendants' coun- 
1 stated the defence to be, that the indorsement of the 
ihhough purporlin<r to be made before the note fell 
as not, in fact, indorsed until after the commcncenient 
present suit and issue joined, and thai the considei^a^ 
said note was illegal. To prove the note was indor- 
er the commencement of this suit, Jesse Bacon, the 
Si attome}', was called. To this the plaintiffs* coun^ 
(Bcted, as it was calling on the attorney to disclose com- 
atioos received from liis client relative to that cause ; 
• it was ruled by the court. The defendants* counsel 
aid, they confined their question to his own know- 
independent of any information or communication 
ei from the plaintifl's. To which llie witness answer- 
}fad no knowledge of the note, previous to his being 
ad in this cause, nor of any tact or circumstance rela^ 
>flie matter in question, except what had been conti- 
By communicated to him by his client. 
iweil Lombard, the indorsor of the note, was then 6fler- 
|irove, tliat lie did not indorse the note, until several 
rafter the commencement of the present suit. This 
WKf waa rejected, on the ground, that no person, 
s'liferac appears on negotiable paper, and who has 
k^cuneiiGy, shall be permitted to impeach it. Tlie 
a' oMiiselthcn stated, that they waived theproduc- 
r to impeach the note in any respect, oc tl)^ 


Aun^^* original contract between the parties, or to prove '^oa^f 
i^nieut hadb«icu made, and would confine thenisdvelf'iiii 
to tlie question, whether tlie note was indorsed aftdr i 
cumniencement of the suit ? The court still detdfloaitieli 
"* an improper enquiry to be made from the indorsor; "'"- 
The plaintiHs then, in order to shew that the defetlKU 
. had treated with the plaintifls, as owners of the nOlbj^ 
viuus to its falling due, introduced a letter fram ueie'dh 
defendants, to one of the plaintiffs, dated 4th Mafdi, 111 
III this he makes certain propositions respecting litt jiil 
nient of the note, and promises payment, if Vbtr plaidi 
would accede to tlie proposals he made. A tdrdidtf^ 
found for the plaintiffs for 1030 dollars, 32 cents. 'AndU 
plication is now made for a new trial, on the fioDd^ 
grounds: "' 

1st. That tlie enquiry olTercd to be made of th^ ]^hml^ 
attorney, was improperly overruled by the court. 

ifd. TJiat tlie testimony of Roswell Lombard, ibt'i 
sor, ought to have been admitted under the circin 
jnentioncd in the case. 

With respect to the first point, I think the cnqUif^'iitt 
•d to be made of the plaintiffs' attorney, was mahife^jr 2i 
proper, and to have permitted it, would have been k^^ 
tion of tliat rule, which the policy of the law has ftdcpB 
tliat an attorney shall not be pennitted to betray *"JW 
with which he has been entrusted by his client. Tjai ll| 
privilegre of the climty and not of the attorney. l£i' ^^"^ 
stary tobe strictly obsc*rved, in order to protect a *^ 
the iiill disclosure of all the circumstances relatii^'ttj! 
cause, without the hazard of having them divulged!' T 
rchtriciion, however, docs not extend to facts that Mm 
the attorney's knowledge, before his rcCainer, or^ ^^ 
niation derived from any other source tharr'from his^|| 
The enquiry olVercd to be made from the'attorim'^ 
whetlier the note on which the suit was fouhdedf| wa& 
doTMxl to tlie plaintiffs, wlien the suit was commeno^^ 
the avowed object of falsifying the indorsemeiit^ tatimi 
ing the note to be given for an illegal coiiud^s^onr'l 
jttdgeif Mr, Bacon could answeirrius qiiestfcft/l^i^ 


iaiy previously to know, at what time, and fr**™ xmuS^So^* 
I be derived his information : if from bis client, and ^ 
the commencement of the suit, or after be was retain^ 
proaecute it, tlie enquiry, I think, would have been 
iper. Mr, Bacon, on examination, declared, that be 
nothing respecting the note, previms to his being retain^ 
te cause, and that all his information relative to it, 
erived from his client. The autliorities cited from 
rand Espinasse, instead of contravening the rule abovo 
I0WD9 are in direct confirmation of it» The cases 
pptare ; suppose the attorney a witness to a deed pro- 
I in the cause, he may be examined as to tlie time of 
itioa. So, if the question was about a razure in a deed, 
II, be might be asked whether he had ever seen such 
or will in any other plight. And the reason why such 
ion might be asked is at the same time given, to wit, 
ae they are facts of his own knowledge^ not derived 
his client, which manifestly shews the enquiry was re- 
to focts which came to his knowledge previous to 
tadner, or in some other way than from his cUcnt. Was 
liB case in the present instance ? directly the reverse, 
attamsj expressly declared, that all his knowledge r»- 
ing the business, was derived from his client. 
le pezt question for examination is, whether Roswel] 
nrdy the indorsor of the note, was a competent wit- 
io/uUify his ffion indorsement ^ and prove that is was 
i|^ after it fell due^ and also after the commencement 
ftpesent action, with the avowed object of sbcwing» 
iwas made on an illegal consideration, and of course, 
^initio. This point I think settled, by the principles ^^^l^^^ 
tod by this court, in the case of Winton v. Saidlcr. In 
^, according to my understanding of it, the court 
ill..tluit upon principles of public policy, a person 
^ inune appeared upon a negotiable note, and who 
■ntribiftsed to give it currency and circulation, should 
(|ndautted as a witness, to invalidate it. In that case, 
dbDosa was called to prove the note was made upon an 
pQf ^GCHMidoratioOj and of course, void in the hands of 
MMtt iMwor, In the prewsnt c)t9e» tkm objiact 



avowed was {rcncral, to slicw tliciiotu was illegal iui 

k is not oxiJicitly stated, whether the illegality of t 

was to be proved by the indorsor, or by other lestimi 

by the former, he would most elearly be incotupctenl 

in the decision in the case of Winton v. Saidler ; anc 

not discover why the same principles of policy do n- 

to exclude him from proving a collateral fact, for 1 

preK purpu:$e of destroying the note. Tlic note p 

to liave been indorsed before it fell due^ The fai 

c&tablislied by tlie indorsor was, that it was transfei 

ter it fell due^ and, of course, open to impeachsient 

wr»s an indispensable pre-reciuisitc ; it was an e 

tvedgc to effect its desiruclion. If this note was i 

en an illegal consideration, t!ic same malady wouk 

it, if it should pans throunh the hands of a dozen i: 

indorsees, who had taken it in full confidence, thi 

what it purported to be ; and havh)g been indorsee 

it fell due, the consideration could not be impeaebc 

tliv protection, therefore, of innocent indorsees,- 1 

piirty to a note, ought not to be permitted to gw 

to his own acts, and contribute to tlie destruction of 

tiable note, which he has circulated as genuine ii 

parts. To say that a party to a note shall be comjp 

o|x?n the door, and progress one step to^vardu the < 

tion of his own paj^er, and there stop, and becoiac 

petcnt, will, I think, be productive of uncertain 

endless confusion, and w ill require refinements^ i 

tinctions, too nice and subtle for g(!neral rules of e 

If Roswell Lombard was the witness, to prove the 

*y of the note, he was ai> iBcom|)etent witncM wi 

ienns of the decision in Winton v, Saidler. If he '^ 

t;d to prove a collateral fact, indispensably tMctmi 

establislied, and thus aid and assist in invBlidatifcg 

paper, I think he was incompetent within the Ml 

•fpiritof diat decision. It remains only to be*ib 

^vhether he ought not to have beei>adwitttidly'lMB 

fendants' counsel had waived all piretence ^ ill| 

this note, or sliewing it had been paid, and coBine 

wives to the simple eiKiuiry, whaiher ihenoii flimii 


be conuuencetncnt of the suit. I think, considcrincr alrany, 
^^asan abstract question, thp -witness was incom- ^^^^-s^^-^jt 
tq answer it* But the defendants here had abandoned !^? 
spoe on tlic merits, and the only ol)jcct in view be- AmaU. 
ti^rn the plaintilB round to a second action, cA-cry ■ * 

|l;rea^QubIe presumption ought to be made in favor 
ff^pvery. If the plaintiHs were in possession of this 
}Sk their own property, and in their own right, wlicn 
o^nmuiiced their suit, tiic simple act of indorsing,* ^scc this prin. 
ewby complying with the forms of law dfter wards, Jj-Sg^lar'smiru 
npt to defeat their action. It is not presumable they p^j^^^'^jj*"^/ 
y^mencc a suit ou this note before they had it. In- Ca. -o. 
bat of this, however, it appears from tjic case, that 
.jfH^ pf March, 17^9, sonic time previous to that 
[^.indorsement even purports to have been made, 
{BfBdant«» by letter, recognized the plaintiffs* right to 
^, i^ade propositions for payment, and treated 
a.evexy respect as the real owners. Under these 
ftaoces, I think the time when the indorsement was 
HjMde, whether before or after the commencement 
4111(9 irould have been immaterial. And it never 
;r|ii)j|fient grounds for granting a new trial, to as- 
vjSfiimmaterial fact. 

\ dicrefore of opinion, that the plaintiffs ought to 
idgpnent upon the verdict of the jury. 
^ton, J. The defendants, on the trial of* this 
.ui^iftted that the note was indorsed after com- 
ment of the suit, and to prove this fact produced 
tpeiort whose testimony was not received. Whe- 
s^iadorsor be a proper witness for this purpose, j» 
now to decide. There is great. danger in 
[ any one, whose name appears on a note, which 
mlll^t^^f controversy, to be a witness at all. The 
rj|l -no^ receive him to. impeach its validity; and 
Jt^Gt^iop .offers, it will merit serious considera- 
lHt)KNB;k wiU not be best to exclude bin^ altoge- 
IliWi^rmm-thilt a man who comes forward merely 
miifknht'^at his name on a note, does not excite 
aaoae who. basely obtrudes Uiaa&lC 



JUltguac 1805. 

to destroy a security to which he has gplven currenc 
affirming that it was given on an illegal, or with6u 
consideration. The rule of the civil law therefore, x 
says, *^ Nemoallegans suamturpitudinem est audieo 
is adopted both in England and in this state s so-a 
Pennsylvania, the indorsor and original pajree was no 
initted to invalidate his own instrument, by estabU 
a want of consideration, although he was a certifi 
bankrupt and not interested, 2, Dall. 194. For mj 
St would give me less oiFence to see such a man expi 
his fraud and effrontery in a pillory, than attesting he 
in the sanctuary of justice, to the truth of aaseversi 
which lit once evince his turpitude, and destroy his^e 
Even in the case before us, the payee was to prove :i 
diflferent from the import of his indorsement^ wfaich^ 
not dated, is supposed to be made on the same'dajf 
the note, and is generally so alleged in dcclira 
There was then some degree of turpitude in foC pi 
his name on a note, to enable the plaintiffs to recover 
then appearing at the trial to destroy a right of a 
created by himself. But without hazarding an op 
on this point, I think the fact offered to be provied, 
sidering the use to be made of it, was irrelevant. * 
conceded that the defendants did not wish to aseeitai 
precise time of the indorsement, with a view to «B} 
stantial defence, of which the makers might have an 
themselves against the payee, or against the indoia> 
the negotiation took place after the note fell due, ' 
sole object was to shew, that the plaintifis were ^ttm 
in the commencement of their suit; because, irt 
time, there was no indorsement on the note. Hiel 
of this would be to drive the plaintiffs to another Mtii 
which it is admitted they must succeed. This beiH 
avowed object, the testimony was property rejecUd 
is not to be presumed, that any man will institotf I 
tion on a note not in his possession, and in whtcpi I 
no interest. Such an attempt can only be fplMii 
certain defeat, and considerable expence. Bttt %|lol(e 
J^ (}eiiyercd to tbe pUundfis before a aoh be 1 


Mjree neglect to indorse it* Why «hoidd a court j}^5J*2[: 
we prevent the plaintiffs'^ title being perfected'by ^^^ap^v^^ 
[Uent indorsement, and thus {Protect •biK»elC «l* ^^^ 
le heavy inconvenience of discontinuii^ his swit, "Arpoid. 
ingai nonsuit, on the payment of coste l JL^siO' "^ ' 
raitted to fill up a blank indomement,- or.«irike 
logether in court, to facilitate a.recovery ; but n^- 
I enquiry made into the real time of* making an 
uent, unless for the purpose of shewing the. ^coil- 

illegal, as between the original parties, or^o 
r vay for a defence which cannot be used against 
who receives it bond fide, and before it falls due. 
[efendants had not abandoned this ground, the 
Bold have been proper, and it would only remain 
halher it could be made by an indorsor ; -but^ hav. 
tsaly waived every defence arising from the laie- 
the indorsement, the evidence, in my judgment, 
Imiasible. The rule I adopt is thia-*^that a court 
r presume an indorsement to have been inseoson, 
at no evidence to the contrary, unless as intre- 
to a defence on the merits, but never for the sin- 
Mse of shewing the suit was pi^maturely com- 
.rl had rather let the payee come in at the trial, 
bia name on the note for the furtherance of justice, 
n a door to investigations of this kind. 

1 the defendants did not relinquish the defence ari- 
n an illegal consideration, until all their testimony 
oi6t was rejected, it may be well to enquire whe- 
•ttnrce from which it was offered to be drawn, was 

hicoii,' the plaintiffs* attorney, was produced only 
mM Ae time of the indorsement; "Whether his 
nitfc parties, exempted him from answering the 
if.projpoaed, is not absolutely neceafsary tb decide ; 
ifa'lhetTiew which I have taken of* thi^ subjea, 
iriMtfBsSiiaere impertinent, unless the illegality of 
Mkt-e6i4fr be «tablished. I think, however, thnt 
p^ti nffh^-m imposing silent' on him after his 
iv^'aftf fhntPlnr tad nb knowledge^oT the note pt^ 


jj^^JJJ» ^Tious to his being retained, nor of any ci«cum«m 
'^ " relating to the matter in question, but such as had.]Mi 
^^ confidentially communicated by the plaintiflb^" T 
right which clients have to the secrecy of their qowb^ 
' produces confidence and a full disclosure of every iias 
cessary to the latter's forming a just estimate oif thitir a 
vend cases ; courts, therefore, are careful that thia,-!^ 
shall not be abused, and will not permit even willing m 
nesses, when thus connected, to disclose mane|«iiaiikl 
confided to them in momenta of doubt aod difi^all] 
Whether he mighi have derived his information irofn o^H 
sources, is here an immaterial enquiry 5 becaiise« Jt i 
proved to have come directly from his client* Mr* 9iCfl 
might have advised the plaindfis that they bad ari|^ b 
ing in possession of the note, to ccHnmence an aCtAop«<a 
though it was then not indorsed, and take their obavNe i 
getting the payee's indorsement afterwards* * Thf A 
then of its being unindorsed at the time of brinpi^ |k 
action, if such were the case, was a secret entnistedooii 
fidentially to Mr* Bacon, and he ought not to be peiflul 
ted, after giving such advice and bringing the acMH^ 
defeat a recovery by his own testimony. I caajiar4 
conceive a case in which the privilege of the dieal'MI 
powerfully interposes itself, than in the one before nst - 

The only witness then, by whom the contraci;.^ 
have been impeached, was the indorsor ; and fae jMi| 
party to it, was properly rejected. ,- ..Ij 

Upon the whole, my opinion is— that as no one ra||N 
duccd to invalidate the note, which at one time wat A 
only defence set up, but the indorsor, and as hia teatHnMI 
could not he received consistent with our deciaionm Vb 
ton v. Saidler, it became improper to shew Vfhm fckeipl 
was indorsed merely for the purpose of comficUiaA A 
party to bring a new action. This principle iarpcogpttn 
by this court in the case of Piatt v. Pbtt, in Apaft^fl 
1795 J Colman Rep. 36. and Hobart 199. liiiiJ iu.flllpri 
it. ** It is regularly true," says that aulhoriqr^ fiAtd 
*' the plaintiff will hinuelf discover to the cowt «i|r lW| 
^whereby it nuy aqipewrthal he badna mm^aitufiH 


nlie oommcnced it, his trial shall abate ; of hia own ^(J^fj^^^r 
vhg it was agunst him." On this our court, with- 
oming to a decided judgment, intimate that the de- 
nt could Hot avail himself of any such matter by plea, 
I ike ptaontiff himself discover he had aa cause of " 
k at itk commencement. And if not by plea a forti- 
ke^teght not to be allowed to give it in evidence* 
I teay be well understood, I think it proper to re^. 
Aat from the whole of this case, which is not very 
HiOy dtawn, it appears that the defendant had no 
«4|nee» to impeach the consideration of this not# 
»{iqree, and that as he was properly rejected, or 
Aanlic admitted for that purpose, the defendants, io 
lijg'llie enquiry as to the real time of the indorse- 
(4afl no other object in view but to turn the plaintiflfa 
l|4iy shewing the action was prematurely commen« 
tti^which single purpose I should have admitted no 
HOI whatever to establish that fact* For these rea- 
had as fko injustice appears to be done, I am against 

UkM^ Jw The note on which this action is brought, 
dttb'«n the 31st March, 1799, or at the end of the 
Ml^aiof grace thereafter. The indorsement is dated 
RMbHareh, 1799. 

IppeaiB, that on the 4th March, 17 9^, and previous 
■B| there were negotiations between the pbuntifFsf 
Mfterwards became the indorsees) and the defendants, 
■ting the payment of the note; and also, that a suia 
hatD oommenced before the present suit, in the namo 
iaJBiiMid, the payee, and discontinued on account of 
ImaSut practice by defendants, as waa aUeged by one 
This evidence was not objected to, and 
es proved that die plaintiffi were privy 
J affijgHial transaction, or acted as trustees for Lonw 
^flaa^yee. On tlus ground alone, I am of opinion, 
gUwiaehewii to entitle the defendasts to go into evU 
idf AniKMiideration of the note. 
klit^ fiAMipid point I thmk is, dutt Lomberd was i^ 
^ M ifc r w imji t^lirwre the time the iadotaemeiit^ 


.£itu^illD3. *^^^^ly n^adc. This would not iropeaoh the vadiditj-< 

Si*^^-^^ the note, r.nd therefore is not within the decision of Wn 

V. ton V. Shelly, nor of Winton v. Saidler* the hftter-H 

"^ which was determined in this court. It was^ 

July x8oa. ^ii^i^^iy proof, which, if it appeared that the ooijte hn 

been indorsed when overdue, would have enabled the 4i 

fendants to go into other evidence to impeach iu . |f.^ 

other evidence could be produced to that eflfect, the Mi 

would still be valid, and the plaintiffs would be entidvA^ 

recover. The idea of policy on this subject^ apfMWI^ 

mc to be carried beyond the reason of the rule. .t 

I also think that the questions put to the phumiA'ilf 

torney, whether he had before seen the note, and wIm1w1( 

the name of Lombard was indorsed upon it at the tiniB a( 

commencing this suit, ought to have been answered ^ft 

would not have been a disclosure of the secrets of kil^ 

diem, within the sense of the rule, which prohibltSf.or^ 

excuses, an attoniey from making such disclosure. 8fi, 

was not asked to discover any thing communicated cooli* 

dcntially, but to answer a fact which he must have.kaowft 

from his own observation, and which, from its natuRi. 

could not be a secret entrusted to him. The indorsen^ 

or transfer of a note is a public act, and the; 

P^ito " ^"'a^^ attorney whether it existed or not, ought, I thin)c^.D|| 

Juy.Dlyiy. ^^ bg ijable to this objection. The authority of ]9ldU 

which has been mentioned, is in my view to the samcifei 

feet. I am therefore of opinion there ought to be aHlJl 

trial. . j.;^j; 

Kent, J. A motion was made to set aside this tccAVm 

upon two grounds : ^ ^^ 

1st. Because the court overruled certain questions fivM 

being put to the pLiintiiFs' attorney as a witness. ^..^i 

2d. Because the court rejected the indorsor, as ni^b 

competent witness for the purpose for which he way cadfilllll 

With respect to the 2d point, (for I shall p^m Igf^^lbc 

first at present as unnecessary to be rnniiiilnij|J)Xiiu,p(llil 

think that the decisions of this court in the caaea <iC.1^|iiM| 

itor^ tonv. Saidler,~and Stewarts v. Curric, go so.jfiir fjjjjMJ 

warrant « rejectioa of the indorcor in the iin i(ii|jiu|[g[||^ 




^i»F TiSE STATE O*" NEW-YOHlt. il5 

Mecases, the maker of the note in the one, and the ^^^i^'. 
sor in the other, were offered, to prove the note to 
Bfeeii usurious. Those witnesses were therefore call- 
invdidate the paper they had signed. So, in the 
if Walton V. Shelly, upon the authority of which, I ^ jj ^jj^je, 
the, the above decisions of this court were founded| 
ndcyfsor, who was rejected, was called to prove the 
IW«/, by reason of usury* 

ill those cases, the testimony of the witness produ« 
wtntdirrctb/ to destroy the paper. Here the question 
no further than to defeat the present action, by shew* 
iM it had been prematurely brought. Proof that a 
Mb indorsed after it was due, might indeed let in th6 
t6 an examination of the consideration. But this 
^Uence does not necessarily follow. The object of 
irty may be merely to set up as a defence, payment 
i original payee. And if it did necessarily follow^ 
t ought not to exclude the witness, because the tes- 
ay that Ar^/t7(?5, does not violate the sanction which 
ame had given to the paper. The sanction his name 
B ts, that the paper is valid, because the transaction 
gal aiicl honest, and he must say nothing that contra- 
i t&is/ Whether the date of the indorsement be, or 
tt, correctly filled up, is a matter in which the iudor- 
as no concern, nor to which he is considered as having 
dhis assurance, because it is now the established usage 
k^iiidorsor not to date his indorsement* It is genera!- 
Uanif and the holder fills up the indorsenieut ui'ter- 
i^ according to his convenience. The testimony of th« 
nor, as to tlie time of the indorsement, does nv>t, thero- 
'tt of coarse, or by any direct or necessiuy consc- 
ce, affect tlic validity of the note, or violate his plight- 
liBi to the world. And because it may poyjaibly lead 
IH? tfeSKniony that will impeach tiic note, is surely 
SiGo^to render the witness incompetent. It would 
B^^ig'lSic principle in Walton v. Shelly, and the dcci- 
nrtmklJiAiXt in pursuance of it, beyond all precedent, 
a^Sfirf^litium^ and would lead, as I apprehend, to 

ttiF%£&iil(^rbttiAcc in the administration of \usucc. 


Aiu^Si '* ^^* '^^^'^ ^^^ ^^^^ ^^ *^^ courts for a century pftst, I 
' enlarge the rule respecting the competency of witneasei 
It must be a present and vested, and not a future and cm 
tingent interest, that excludes a witness. He must be ii 
tcrested directly in the event of the cause, and not mere 
in the question put. These are instances in %vhich the vet 
at te interest, has been straightened, and deined wit 
the utmost clearness and precision. And I coutd wish U 
fee tills other rule of witnesses being incompetent^ oi 
grounds ofpoliaj, rendered equally manageable, bybeiq 
reduced to limits susceptible of equal definition and ce^ 
tainty. To do this, we must adhere strictly to the caul 
which produced the i-ulc, and exclude only the witncil 
who is called to impeach his own paper, by shewing it to 
have been immoral or illc<>al, uhcn he put his name tofc 
My opinion therefore is, that the witness offered, wil 
competent to answer the question put, and that theft 
ought to be a new trial, wiih costs to abide the evtnU 
Lewis, C. J. concurred. 

Under a gene- Johu LawToiice Jiuiior, and Henry Whitney against 
goo5;ftL''L ^arrit Van Home and David M. Clarksoo. . 

iu^^iirthar' "^^^^^ ''^'^^ ^" ^^'^^^ ^" * P^^^^y °f insurance, dated # 
his inrcrcbt is ogth of April, 1 797, ou the carffo of the schooner NyniAr 

only of an un-. »»» . *<. . • l 

divuitj part. Oil a Voyage to L Ancevcau, in St. Dommeo. The afBdUr 

but niav rccov- . • r , i i i • \ 

rr according to ^^^'O'*^ ^^'iw "*>r a totiu Joss by capturc, With an ave 

^v\w7S wjl^^'^^^ ^'^^ assured had laboured for the recovery of tboe|m 
iriS?ci"\he*i»- ^"^' ^'xpended 4,000 dollars, of which the defendant^^pf|^ 
•urcr is liable portion was 250 dollars, a sum equal to that of tbcdr J|^ 

to the czpcncc9 . . ... ^ i n • 

Incurred iiipn>. scription, which was for 2 -JO dollars onl}'. .\'\' 

pcXnt^iT^osL^ The invoice of the cargo, including the premium ^(ilip 
tcnce'con^^ surancc amountcd to 12,06 1 dollars ; ilw plaintiak' intODHP 
niiigtheaMurcd tliird ; but this circumstiuice was not specified in the.iMi' 

In costs, and to * ■?»**!™: 

iui>tain compcti- cv, M'hicU was general, witliout any disclosure pttib^i^gf 
•gea occasioned of Others ill tlie subject insured ; theirs not beiiig iotgldtl 
or cinbSrlSiS ^ ^ protected by the instrument. From tlie fiu:t%4|^ 
r« w'l!l>SThc ^" "" evidence on the trial, it apixsircd that the y^mi,/it^. 
imwunt of the ed from New-York the 1st of April, I7i)7, on tbe^jpggl 
mibtcriptkML insured ^ tliat she was captured by a Spcuiish printfeer^ m. 


rted into a port in the island of Cuba, where siie and her /^^^^^ 

ego were libelled, but ordered to be restored. The court, V^p^iy-l^ 

waiei, sentenced the claimant in costs, to the amount of^^^^^^J^ 

Wdollars.s The captain thinkinc tliis unjust, and find- ,, v. 

^11 1111 111- I VanHonirand 

fnot only the cargo one third plundered, but his vessel Qariuoa. 

tipped of almost everv tliinc:^ appealed from the dcci- — — — — 

^, ^1 _^. , _' *", 1-1 I II A paper notic- 

« to tne court in the Havannah, which ordered the cap- cd to be pro- 
acf tile privateer to make good all deficiencies in die cd"^r*b^n*!!l 
rfO| and tliat these should be ascertained by ^^omparing J^^"*J^» *'J^^ 
siflvoicc with the amount of tlie sales which had taken »?^ has not a 
ce. under an order of the court below, in which tliey re- «]H^ct it. whe- 
iaedi Still, however, nothing was said of the costs, and ccs^ncu^ia 
^ctptaiD, after having appealed to Madrid, came away, reasonable "w 
Of the capture, and various steps thus taken, he gave"^' I* matter 
inrliest information to his owners, and the assured in 
present policy, who immediately on knowing of the vessel's 
pg carried in, made their abandonment, which the de- 
dants refused to accept. The plaintiHs, therefore, con- 
ned firom time to time, to direct die measures to be adopt- 
bjf the captain, and paid one tliird of the bills he drew, 
le drcnoistances and situation of the vessel in Cuba, were 
oved toha^-e been known and conversed on in one room 
BdbjaQmeof the underwriters on the present policy, but 
t'bfilie'defendants, though it was also in evidence, that 
'ioPTte ia tions in one room are, for the sake of general 
MMftion, carried and communicated in llic other. Th« 
hritnts gave notice to the pUdntiifs to produce a letter 
lin trial, which, when it came on^ they refused to do^ 
tkffbe defendants would engage to read it in evidence. 
b they declined acceding to, without being first permits 
W -itlspect it, and on its being denied, his Honor tlie 
jjCyiM^tav whom thecau^ was heard, ruled that tlio 
icMiioit eonld not be demanded, except on tlie terraft 
9fAi& jdaiiitiflTt wished to impose. 
tSt ^Us the trial ^rent on, and the jury » in confornxit^r 
ii<^lih)n of the court, found for the plaintiff, makings 
IDiil^ s tery considerable deduction from the auount of 
Buniui daioied. 


Aif'w^&So* To set aside tills verdict, and grant a new trial, a 

V^^^v'^ip/ tiun now was made. 

^^^^^ Pendleton, for the defendants. Tbe question is, i 

Van Homeamd ^^^ ^^® underwriters are liable for expences incun^ in 
caarkioa prosecution of a suit for damages, after restitution,^ m 
■ decree of acquittal, when the captain appeals for dama 

but does not say on what account. His own affidavit n 
tions, " That after several trials, it was finally decreed; 
•' the Sth of March, 1799y that the vessel, and proceed 
'< the c^rgo, should be restored to this deponent, and i 
^^ any deficiency in^lie cargo, should be made good by 
** captain of the privateer, to be ascertained by compai 
*^ the invoice with the account of sales of said goods, 
<^ no damages or costs were decreed/' It is no part ol 
underwriter's contract to be answerable for damngesoD 
appeal. The policy gives the assured a right to use ei 
tions for saving the property, but after a decree to rest< 
the underwritten proceeds at his own rkk* Howw 
should it be odicrwise, and the assurer be leq^onsit 
here the assured has not conducted himself so as to be < 
titled to demand any comi^ensation from die undenvril 
From August 1798> to January 1800, there is no appli 
lion to pay any tiling ; yet, for that tin^, the assf 
Avere inlbrnicd of all circumstances, and bills were conti 
ally drawn upon him during the whole period, Tbe WQ 
ought not to have paid bills, given directions, wd Cbm 
terfered, without tbe approbation of the assurers , l^V 
if they are to be charged, he was making tlieni liidile Hft 
the policy, and for what they did not engage, II »< v 
loosely stated, that the underwriters knew of the prciCI 
ings going on ; mere possible hearing of conversiudoqiJ 
facts. But it is not any notice, unless informed of pfuttl 
lars, of and for what the proceedings were going (M*, 
is assigned as a reason for abandoning, that tho. mK^fl 
ters had assumed to pay all expences ; here tl^qy w|^ 
put in a situatioii to make that electipn. ThcfR k|j|||| 
point of law in tliis case arising from th^ ^lapi^ ^ pj 
the insurance is made. It is a joint adventiiic,^i:|| j^ 
persons interested. The action is by qust r^fh^JHififfi^ 


adflclaralioa is, that he is one third interested in the poli- j^J'^^' 

r. When the insurance is on a cargo, it may be ques- v^p^v^^^^ 

ittd whether he can make such an insunmce, unless the ^Igirhitner"^ 

dicj be one equal undivided third part of the cargo. One ^« 

iUMisiays he was not insured : but under this policy there Cbrifon. 

Mhing to hinder him from claiming a part.* The aver- '' " 

Bit ought to have been special, and so ought die policy ; ^ TT,e„njjej^ 

loy one person meant to insure a separate interest. It is writer never 

Meived also, that the judge has mistaken the point of upon to |iav 

r, with respect to the calling for papers. He ruled tliat jJi^" cciited a 

m a paper is called for, the party cannot examine it to prtn^m for. 

iif it is evidence, before he uses it in the cause. But he is 

»inore obliged to use it, tlian he is an answer in chancer}'. 

en the plaintids would not produce the letter, unless the 

IcMknts would agree to read it as evidence. This they 

idined, unless they were permitted first to read it : and 

le court determined that the defendants had no right to 

penouB inspection. 

HiggI, Hoffman and Troup, for the piaintifTs. We 

aUreverse the order in which the points have been 

'OQi^ forward by the defendants* counsel. We shall 

M-speak to that which has been last insisted on ; the 

Uidiicction of the judge relating to the paper called for. 

h this subject there is no case in the books, except the 

ieb£spinas8e,t which does not apply. The point comes f sawyer v. 

^ttb, diat a party is entitled to look at every paper in r^.**^* ^ 

iilUiiCiffs^ possession. When an application is made for 

VMfe in the possession of another, the notice to produce 

imis on account of a previous knowledge of their ex-* 

ittft flmd contents* It is done therefore on this princi* 

by- Aai there is a conviction they contain evidence use« 

In thoae who give the notice. If the adverse party 

kl^ietfyroduce it, the other side may offer testimony of 

MfeUeuU ; should the part}' noticed, be ready to give 

V|i|ier in evidence, it does away the necessity of parol 

V^Kt dt iu contents, to entitle to which, is the only 

Wm ifhf the notice is given. When the paper is called 

I)f4t itWilie peril of the party who does so, and when 

'■Mlhl^Uliif produced at all, even to the adverse ]psx« 


ALBAKT, t^^ he ought to be compened to read it in evidence. 11 
v^^-^v^^"^*^ attempt of the defendants, and the objection raised upon 
^WhSSr*"^ are mere speculations, and therefore not to be fav<yrc 
T Horncand '^" ^dlopt the doctrine contended for by the plaidtUrs, 'c 
aarkton. induce no injur}*, but that of the defendants, ctfn pr6dii< 
" no good. It affords an opportunity of inspecting;' witbm 

any determinate view; if the paper is favorable k' i 
read, if unfavorable rejected, and thuB| every scriji d 
i^Titing in the possession of another, is to be nunackei 
for the benefit of his adversary, without his even knowi^ 
whether it is to do him good or not. In the second piMae 
as to the question made, of the right to maintain an actldi 
for a third part. Every man who is an owner of an xoA 
vided part, may insure his part and bring an action oii i^ 
for a joint connexion will not prevent the insumcie' ^ 
what one has. The insurance need not express itfobeU 
undivided part. The contract is so drawn for this vwj 
purpose ; it is general, ^* As well in his own nam^ teffii 
**' and in the name and names of all and every oAer pe^ 
'* son or persons to whom the same doth, may, o^ shillap' 
*^ pertain, in part or in whole does make insurance, nd 
" cause himself and thcm^ and evciy of thenkP Sec Til 
engagement is to be applied as the interests of p«(tlestiW 
sent themselves, for their several interests are coveitdtff 
one policy. This- construction does not militate agritt 
the principle, that he who thus insures, shall at tUtiUI 
recover according to his interest ; on the contratyV^ 
very rule is founded on the principle. With re^iSeNI 
the first point raised by the defendants' counsel, wUMl 
the insurers were liable for expences, in a suit cMi ii^ 
peal Tor damages, after a restitution and decree oriO^ 
tal, perhaps if the word was taken in the full andfil| 
sense of acquittal, and the appeal had been f6ritn|Midl 
mcnt or personal damages, the insurers would i^ 

been bound. Yet, when die party prosecutes addlfNlMHI 
obtains recompense, he then may appeal for dtoii|jjK4^ 
the same manner as for restitution, if the wli6l^ tttf til 
condenmed. The property wfts not so acquStCfd^ WiiVjff' 
autthecaptsdmtopvoceed withhia cargo^ut dfe Jrite tt lf ** 


itkad been restored, tho* charged. Evcnthcn he might ^^Ji^fsoj. 
lappealed for his charges ; but it was not so restored ; it V-^^-v-^-^' 
laundered of one third, and two-thirds only of the voUtncy 
Ic Wi?re restored. On this account, and for this the ap- y^^ ^^^ ^^ 
was instituted. If it was the master's duty to liti- Wirkson. 
U was his duty to appeal, in order to get the whole '• 

uty« If a contrary course had been pursued, and 
wo-thirds had been received without an appeal, the 
idantB would have called on him for the third he had 
ictrd, as they would have insisted that the clause is 
ttory. The vessel was stripped of her sails, and 
fore she could not have gone on .with her cargo, 
jjx^e captain had been willing to relinquish the od« 
fhmdered. If this be. a restoration to make inva* 
•.endeavours to get the third plundered, it would be 
dificult to say what a restoration meant. The charge 
liotke case, takes away the necessity of any furthei: 
Bent* - The point for die jury was, were the circum- 
Mr such as to justify the appeal I whether done with, 
ithout the knowledge of the assurer, was a matter 
&i||:evidence, and therefore left to the jury. Bv^ 
t bCMmembered, the abandonment was not accepted^ 
f^mfore the assureds were obliged to adopt such con« 
M would establish the right of the assurers, or then^ 
m^ Tlie defendants ought to have taken the ahandoo- 
ii Ip eatide themselves to find fault with the appealing 
m; planytifiii. If tbe captain's conduct has been pru^ 
)gB4. discreet, every part of it renders' the insureH 

iff .^.general principle, that the bona fide conduct of 
pgflip.charges the underwriter. From the circum* 
fftfip^ evidence, and set forth in the case, it is probable 
l^ fa l d^M * l^ul notice, and on that probability the jury 
^iWWTO'nc. The non«objecting of the defendants* 
^j^m Jspew what was going on, was an acquiescence 
ffTfnNff* The quantum of the claim was also taken 
pg|||}4HIE|i>^a by, the jury, and they struck off a part^ 
MWiK^M^i^ thousand doUars. Suppose the wh^le) 
MB^^agWBtA. would jiQt.thf captain have Ueik^>»a« 


AsurM^iSoi ^^^^ ^" instituting a suit for damages, and there the 

V^^%^-^^ could not have been for rcsUtution, but in terminu 

wutney damages. As to the formal objection made by th 

VanHoriieaiid^*^'^^^^s> that the action was not maintainalile, the ii 

^^'"^*°°' ance being general, and the suit for only one third. ^^ 

ever weight might be in the objection itself, though 

it possessed any is not ver}' evident, it, at all events, oo 

too late. I'he present is an application for a new t 

and therefore the objection not to be attended to i 

Does the judge below decide on rules of practice i ^ 

objection does not touch the merits, but is merely a^ 

tion of practice : the defendant, therefore, to avail 1 

self of it, should shew that he has suffered an injury fc 

Hamilton in reply« It is of importance that the kB 

taken by the assured in charging underwriters, ihn 

the general agency g^ven by the clause, under whid 

present hopes are founded, should be in some degree 

fined. The plsuntiffs never asked whether thay A 

proceed or not, but continued for two years dcfcnd 

without any personal authority. The increase «f ex 

ces was more than the whole value insured. How 

principles might warrant such a case, it ought not to 

elude them. The question was, whether the partiei 

proceeded without authority. With regard to the iM 

insured, it deserved the interpretation of the coorti 

licies no doubt have a certain degree of latitude t'* 

may cover various interests ; such as are equitable, 

even those which are undisclosed. This was tt 

gument for an insurance of a part, and it must be tl 

ed ; but then it ought not to cover the whole, when i 

is a joint interest. When it does so, the whole Mi 

intended to be insured by a party insuring generdlfi 

not that it is for his separate interest. What thtt lilt 

is, he should specify ; the contrary leads to fraud i bM 

if the vessel arrive safe, a return of premium miffi 

demanded. Several policies might be affected by'^ 

vend proprietors, each for the whole, and unlets dfaUf 

cd, the subject of insurance might be paid foit^ Mi'tf 

•ver. But nothing can justify the plaintiA' 




lk'd6bdtict thejr adopted at the defendants' expencc. ^BAlg", 

Wfctfkef the power to charge the unden^Titer at all, under 's«»«--^^«^ij/ 

iWchtueiof the'pohcy notv hisistcxl on, did not terminate ^^?gg^^y»°^ 

Ihlinitant be ifid notice of the disaster, is, perhaps, the,. „^' 

irw point tn question. The authority was, immediately CUurkaoh. 

iM'idkice, perfectly at an end. The right to charge the 

Mlatetj previous to notice, would exist without any clause; 

dMM would, and must be, an implied agency. The suiKjr- 

tti|[0, or captain, would, from his situation, be constituted 

Ibigeht of the parties concerned. The interests of all 

gifcUu a right, accordhig to foreign authors, to act from 

The clause was merely to affirm that principle 

in tlie nature of the circumstances, and flowing 

iaitbem ; to remove a doubt which hung over the case 

(jfiihandonment, whether the acts of the agents of the as- 

Mfid, thould not be construed a waiver of the abandon- 

■■t Jlii^t had been made. This implied agency could not, 

h.fbktBesB, continue after the abandonment. If an elec- 

iipio abandon be made, the right to act for tlic untlcrwriter 

riBbe dtttroy ed ; if it be not made, the assured, as owner, 

BBBticiiDr fainnelf. After abandonment, rcasou appoints tli# 

iMvertoact over his own property and interest. If a part 

Wtia m m jc d, then the assured may pursue for tliat, but techarge tlie underwriter. It was not intended to 

^diatrtheacts of the master, if left to himself, would 

^plftbid ihe underwriter. For he would continue, or be- 

tf^^lb c agtsnt of him, in whom, after abandonment^ 

|||feji<ji Lv V4jNteJ. The orders given by the assured ia 

p^e^^^ axe like ttiosc in coses of two routes in the iter : 

(fil^actioino pui^^ue one, by destroying tlic captain's right 

^iiwetiofi^ ci uLites a deviation. No argument can be 

M^g^n^ the defendants, from the circumstanco of their 

^d>ji?ctifig to tlic intermeddling of the plaintiffs: there 

l&ajgint inLei^st, and therefore the unassured might act 

tlit pfc^rviiUon of their own, and, in such a case, could 

I J e <^f ilie underwriter be construed into an acqui- 

^J^for* a mere silence of this sort, could nevisr crc- 

1|& ^iitlioriiv to charge. With rcsjpcct to tlm decision 


A^^t^* ^^ ^'^^ j"^g*^ *^ ">si prius on the point of evidence) he r 
V-^-v*^^ ed on the case from i Kspinasse, 209. 

'^Whitacy*" Per Curiam, delivered by RadclifF, J. Several qnestio 
Van Home ana '^^^'^ ^^^^ made, whicH may be considei^d in the folloi 
ciarkson. jng order : 

1st. Whether the insurance, which was general, can af 
ply exclusively to the interest of the plaintiSS| Mci/beio] 
an undivided third part of the cargo ? 

2d. Whether the defendants are at all liable for the a 
pences which accrued subsequent to the acquittal, andii 
prosecuting the appeal for damages i 

Sd. ^Vhethcr the defendants were not entitled to inspect 
the letter called for by them, and to elect whether it ihonH 
be read in evidence ? 

4th. Whetlicr the expcnces in prosecuting the appedll 
Cuba, were reasonable and ought to be allowed i 

As to the first, I consider it well established in pracricCi 
that the assured is not required to state the particahr in* 
tercst, or proportion of interest, which he intends to have 
insured. It is sufiicient if he have an insurable interest tc 
the amount in question. Whether it be a distinct, or at 
undivided share, cannot be material. It may often b 
difficult to ascertain his interest with certainty. The own- 
ers were at least equitably entitled to their shares in sefC 
ralty ; the interest of each, I therefore think, oughttbix 
permitted to be severally enforced. In the present tas< 
it appears that the insurance was in fact so intended^ u^ 
a witness, who was one of the partners, testified that ill' 
plaintiffs had no authorit}* to insure except on their jBVi 
account. The danger of fraud from this practice, t unl 
is remote, and less to be apprehended than the incoiifW 
enccs which may arise from a contrary rule. - 

2d. As to the second objection, I see no reason vth 
the defendants should not be liable for the expences ^^ 
tending the prosecution of the appeal in Cuba, which ^* 
conductc*d with good faitli and for their benefits I am.^ 
formed that it was decided by this court, in ^prll I j?^ 
in the case of Smith v. Scott, that an aasurer is Ihhk fc'^ 
similar expences^ beyoTvd\]\«2axvQuntof his8ubecriptr(?i3i 


md I believe that the uoderwrhcrs have, in practice, uni- ALBANY, 
fflrmlyackno^vledgcd their liability. The appeal in the ^^^S!^^^. 
pum case, I think vras justifiable. The captain was^^fJJ^^^ "^^ 
ramfcinned m costs amounting to about g 1500, one third „ „^- 
of his cargo was plundered, and the vegsel stripped of "^artTd! 

"eij' thiny necessary to her equipment. The restoration ~ 

of the vessel and cargo in that condition, was little better 
tbi a toul Lss. There is no direct evidence that the tle- 
fcadaats afterwards had notice of the proceedings, but I 
Hmk it may be fairly presumed* The capture was well 
hoTO to them; an abandonment was made, and the pi-o- 
cccding[B were frequently a subject of conversation be- 
tncn other underwriters on the same policy. The de- 
faidaiits did business in the same Coffee-house with those 
Merwritcrs, and though in a different roGm> it is proved 
thtit is usual for underwriters on the same risk to com- 
mmicate to each other the information they receive. 
Fmn these circumstances, I think actual notice to the 
ttiepdants may be presumed, if then they had notice^ 
•ad did not signify their dissent, they ought chj^rly to be 
liddlishle to the result, 

3d. As to the third point, I see no reason to change 

the opinion I entertained at the trial. A party who gives 

Aotkt Id produce a paper in evidence, must be sup{>osed 

ID bow its contents. If he does not, he ought not to be 

pcnnitted to speculate through the forms of la^r, and ob- 

tttifiom his adversary the inspection of any paper qy do^ 

Meat he may chuse to demands' Such a privilege would 

kJSiUe to abuse, and I think neither correct in princ^iple, 

W(MmsisteBt with the form of proceeding in such cases* 

fie'aodce to produce a paper, requires it to be produced 

M^mdencCf and when once called for and produced, it is 

;:^coiine in evidence, and I think it cannot be called for 

(A#q^Qther terms. I understand this to have been the 

^|i|ilpd of our own courts, and no question has arisen 

*J9^f^^ my knowledge, until a late decision of Lord 

L,tt aiai prius, which suggested the idea now main^ ^ ^ 
1^ t|ie de£endants counseL It may he questioned 210. 
die point decided in that case^ is aimflar to the \aJ^^' 



ALBAOT, present. Without examining this, it was an opinion , 

v^ip^v*-^^ nisi priits^ and of itself no authority; and in addition r 

^ wwSey*^ what has been said, I think the alternative that the part] 

VanHornoMid S*^'*"B ^^^ notice, if the paper be not produced, maygc 

cUrkMD. into evidence of its contents, shews, not only that he 

' be supposed to be apprized of them, but that he 

have it in his power to compel a previous inspection. II 
the paper be refused or withheld, he can do no more tliu 
give inferior evidence respecting it. Neither the conit, 
nor the party can enforce its production for the purpose oj 
inspection or any other purpose. 

4th. Whether the expenditures in prosecuting the appeil 
in the island of Cuba were reasonable and proper, nnda 
the circumstances of the captors' situation there, was dti 
tinctly submitted to the jur)% and if extravagant or ilfr 
proper, they were directed to make such deductiMis a*ii 
their opinion should appear reasonable. They have,i! 
fact, made a considerable deduction, and I cannot tajrchil 
they have not done right, or ought to have deducted iDore. 
I am therefore of opinion on all the points, that Ac 
plaintiffs are entitled to recover according to the verdict ai 
it stands; 

Thompson, J. T concur in the opinion given, except! 
to the third point. I am inclined to tliink the defendW 
were entitled to an inspection of the letter they had|^ 
notice to produce, without stipulating that they woolM 
tcrwArds read it in evidence. The practice of givinglM 
tice to produce papers, as in the present case, faiubcMHi 
troduced to save the expencc of going into chanceiry^ 
discovery, and I can see no good reason why th^ ]^ 
ought not to be entitled to all the advantages he iM 
have, had he resorted to his bill in equity. In thatcM^**!! 
tor a discovery, he might exercise his discretton wliefliSrI 
use it as evidence or not. I do not think this rigbC Ssi i 
spection would be liable to the abuses soggestied^flj^tf 
"plaintifls' counsel, that it might lead to «n imjIaniMM 
spection of papers having no relevancy to thA ecfiftMIIHN|| 
Thef party cdling for the paper, must appear m ttWiOiil 
to have an interest in, and right to it i fa&' 



eto prednce it.* This notice must contain a descrip^ Albany, 
xtN paper with convenient certainty, and it nmfc.t he ^^i-J-^^ 
ed to be in tlic possession of the opposite party ; after ^^^*^ *°** 
i, it would be competent for tlie party ha vine the pa- v. 

to object against the introduction, or ttic prqof ol its cuukson. 
Ms, as being illegal or irrelevant, in the same manncis - — 

he party calling for the paper had been in possession 
or as might be done with respect to every otlicr piece 
tknony. Torcciuirc a stipulation, at all events, that 
.per should be read in evidence, might, in man}' cases, 
si a party to introduce testimony against himself. This 
be unreasonable, and I think liable to much greater 
than permitting a previous inspection. So far as the 
ta of Lord Kcnyon ought to have an influence on dc- 
lioe this question, we have it in the case of Saver v 
9y St nisi pnus. The aelenuant liad given notice to ■ 
aDlifi» to produce his books, and after having in- 
l4liem, declined using them as evidence. The plain- 
(NUIkI then insisted, that the defendant Iiaving calU 
the books, they were in evidence before the jury. 
ord Keiiyon said, it did not make tliem evidence ; 
the counsel on one side, called for the other's books, 
■dft no use of them, that it was only miitter of obser- 
to die counsel on the other side^ that the entries 
loein favor of his client, but did not entitle him to 
W in evidencer Although this decision is in no way 
|.0a thi^ court, yet I think the rule tliere laid down 
|k(}. in good sense, and best cadculated to answer the 
[joitipc, and tliereforc proper to bo adopted. Had 
futifib, ia the pre/sent case, entirely refused to pro- 
Kl^ letter, there c^n be no doubt the court could not 
L^. specific compliance with the noiice, but could 
Jpi^y^tedtbe defendants to go into proof of its con- 
tJTji^. plaintiffs, however, admitted they had the 
iHpd Wide BO objections against delivering it to the 
Mtfy^VP^^ded they would stipulate at all events to 
)ilH|Md^9^, which they refused to do before they ^ 

ikt ,|M|d the court decided, that the defend- 
to inspect the letter^ unless they 


A^iu* lib* ^^^^ afterwards read it in evidence. I think thejudg 
V^^^v-^»/ ought to have said to the plaintiffs, if you have the kttei 
^ WhiScy"* and intend to produce it, the defendants have a right t 
VanHorncand *^^P^^^ *^» ^"*^ ^^^^ make their election whether to read i 
cnukfoiu in evidence, or not. If you refuse to produce it, thed^ 
fendants will have a right to go into proof of its coatenti 
Lewis, C. J. concurred, and on the third point sud, hi 
did not consider there was any essential difference betirca 
the opinion of Thompson, J. and that delivered by Mr- 
Justice Radcliff. 

Kent and Livingston, justices, gave no opinion, tkft 
former not having heard the argument, and the latter faih 
ing been of counsel in the cause. 

Joseph Coulon against Walter Boivne. 
i^ntSlV^mlii '^^^ ^^^ ^^ action on a policy of insurance, in irfucfc 
lias been a iia- the Only questions were on the materiality and conit|fiC- 
sen Mnceapar- tion of the following representation : ^^ Mr. Coploo ill 
docH not mc-an naturalized citizen of the United States since the yof 

that he hasbeen ^ ^qj^ „ 
■o ever since. *■ 'y*» 

Hamilton, for the plaintiff. The question turns mer^ 

on a matter of representation : There is not any wanutff 

and the distinction between a representuuoD and u wif^ 

ranty is familiar to every one. As no warranty was mad^i 

it affords a presumption that a belligerent risk mmt )m^ 

been contemplated by all parties, and that the conifffi 

should not stand on the basis of neutrality ; otherwifCfl 

warranty would have been inserted. Therefere, thou^ 

the representation be not precisely clear, nor totally e^* 

empt from doubt, no objection can be made en M 

score of a want of neutrality : for, as a representation i< 

collateral to the contract, all ambiguities should receifc< 

favorable construction. Let us now see if graifim&ti^ 

construction, will not warrant the construction for whid 

ve contend. Since is contrasted to then^ and platfilf if 

nifies, he was not a citizen in 1794. If he had meant tM 

he was a citizen in 1794, he would have said ^^ rt^rr simt^ 

This interpretation accords with the residue of the tP* 

tence* Transpose the words aod put them in their f^^ 


uder. ** He is a citizen of the United States, since j^''^^*?J^' 
H* Otherwise he must have said, " has been^* or v 
er since^ This is naturaL Let it be remembered, he 
Frenchman, and translates his own language into bad 
lish. Had he said, ^^ depuis mille sept cent quatre " 
t quatorze,^' the sense would have been clearly exclu- 
of 1794. At least, this ambiguity would set the un- 
Titer upon enquiring whether the emigration was he- 
'd*, or '98, to render it material. 
;wis, C. J. In Puguet v. Uhinlander, it was deci- 
in the court of errors, that though the emigration be 
ante bello, and the naturalization afterwards, it ia 
:ient to answer the warranty of neutrality in a policy 

amilton. May I consider, sir, that case as the set- 
doctrine of this court ? 

Bwis, C. J. Certainly, This bench did think other- 
, but their judgment was overruled in the court 
«, and they are bound by that decision. 
anulton. As that case goes the whole length of this, 
unnecessary for me to argue any further in support 
hat is already decided, for omne majus in se continct 


»idlet«n, for the defendant. The case may be divi- 
into two points. The naturalization of the plaintiiT, 
the materiality of the representation. On the first 
ki the question is, what ought to be understood by the 
Mentation : If the opinion is according to the usual 
aihg of the terms, then the naturalization was in 1794, 
dadng ever since *94. There is no evidence that it 
immaterial : it was material, and if true, that he 
Itt to be considered as a neutral by belligerent parties. 
kl^ it does not lie with him to say it was immaterial, 
nie it was a wilful misrepresentation. The principle 
IIIMtucti<m of terms used in contracts, and more so i^ 
bieiiUidons, as being the foundations of contracts, is 
tda^fhitm in the usual acceptation of the words ; the 
}iiiy$ ^oA not the grammatical. The representation 
cite tiifcea as an answer; for die underwriter muat be 


/^^l^^ supposed to have asked, " When were you naturalized 

the answer is, since, or ever since 1794. Ititkust^mn 

been an answer, or why select one period more thanaqfl 

then lie must have meant that he was natujali^ i 

1794s as, according to the law of Congress then iu'fm 

to entitle him to that privilege, his emigration wouidjbmn 

been before the commencement of hostilities ; andcmi 

being so, he would, according to the law of nations, liavi 

been protected in his commerce from a neutral counfir 

Great Britain allows the privileges of neutrality to liei 

own subjects, trading with an enemy from a neutral ^cou 

try, if they resided there before hostilities commenwl 

The representation was to make the underwriters UBiw 

it was a neutral risk, mislead them, and affect the nud 

premium to be paid. That representations ou{^t to be 

true and exact, Park 174, 5. If false, and to lessen tt> 

premium, it was fraudulent, and being within Ihiscnfn 

knowledge, it is th« same whether the fact be iiui|enal,(r 

immaterial. But the circumstance is very malpria(v p 

will appear from Park 180,* 182.t If, tlierefore, thc,dSi- 

closure was not true, the court will not speculate cm t^ 

materiality. .,jj. 

Kent, J. When did congress pass the first act paw^ 

bing terms as to naturalization. . .,^^. 

Pendleton. In 1794. The person must have residcdlJI^ 

years,* and this would carry the emigration bap)c tpilP 

riod before hobtilities. The period of emigration is. 

fore important, as it would determine the ^atiQl^ 

racter. The representation was in English, and 

without examining the French translation that. 

given, it was a false representation. That nptwil 

ing it has been decided that a warranty of ne 

complied with by a naturalization, after emij 

grante bello, it is very different from a case wl^cn' 

is no warranty, and the emigi-ation must, iroin me 

• Hodeioo V. Richardson^ i Black. 463. f FOUt y. finittim, SSt^f^Sj!^^ 

f Jlie &nt act prcicribiiis two yean reiidence, paMcd aMJiMkMi' 
Then came thelaw of agth June, 179$, ordering five rtut- ThB**HnllpB 
bYthcactofthci»diJune,iy8,requiringfattrttcaywi%^r-''--*^ ■ " *' 
iaimc, ordaining a period of fiTC yean. 



MWioni have been understood to be before hostilitiest ^^•^^^* 

AUgUK lo03* 

aid therefore no naturalization required by the law of na* ' 

I, the property being protected without it. 
Himilton in reply. The case of Duguet v. Rhinlander^ 

■ decisive. To adopt the reasoning of the counsel oppo- " 
Kd to me, the court must say, that an ambiguous repre- 

ioittuon, by which neutrality and emigration before ho8« 
ilities may be inferred, is stronger than an express war. 
mtf of neutrality, when the emigradon and naturaliza* 
JOQ are flagrante bello and not disclosed. 

Per curiam, delivered by Lewis, C. J. The only ques« 
fioD arising in this case, is on the representation ; which, 
ftdmitting it to be false, cannot avoid the policy, unless it 
^on a point material to the risk. The decision in the 
Me dT Duguet v. Rhinlander, is not necessary to be here 
ifpljed. The only view in which this representation could 
kmaCerial, independent of that decision, is, as it respects 
k naturalization or emigration of the plaintiff, flagrante 
Mb. Now, whether he was naturalized in '94 or '98, must^ 
tToQiiBidered independently of the period of his emigra- 
Mm, be immaterial, for in either case, it was a naturali« 
vitaa^ flagrante beiloj and the existence of a war at both 
Akose periods, was a notorious fact, of which the under- 
Vriters cannot be presumed to be ignorant, and are bound* * Carter v. Bo* 

Mi.1. *.• ^I*"** 3 Burr. 

Due notice. 1095. i jji^^k. 

hat it is insisted that on just construction, the repre- ''^' 
Wation was that he was naturalized in '94, for that sinccy 
kttis ex^er since^ and then by our law he must have emi- 
pited to this country in '92, a period preceding the war. 

■ W« are to take the word since abstractedly, and ask its 
■■dng, it will be found to signify aj>er. If we take ie 
fWttMcdon with the other members of the sentence, we 
l^bjr a transposition of a single word, give it the same 
l^jUtcadoii: and when we consider the reprcsenta- 
pi was made by a Frenchman, as was admitted on 
MpHflgliflient, and that such transposition will make 
tJbifiiffal translation, I presume we shall be justified 
MhMbc. It will then read, " Mr. Coulon is a citizen 
iflC tht Usuted States, naturalized since '94.'' TVivm 



^^^^2^*5^ win the representation comport with A^ Tl 

^^•^v-^^ tince ITM, are therefore too equivocal, and not •mi 

^ precise^ to justify the court in considering Ae ^ 


^ representing the plaintiff to have been naturalize 
not after 1794# We di»not, consequently, considc 
presentation a» matenatly false, and the vetdict 

JJnSj>^cR<*ert Abbott against ]ohxi Broome, Pres 
•^'•t^unSic **^ New-York Insurance Compauy.. 

£rSri*talr*'^ This waa an action of assumpsit on a policy i 
90, it u a loM of ranee upon one-eighth of the ship Mary, valued 
ihe^nulyb^ dollars, ou a voyage from Batavia to New-York, t 
Smfc^^lritE^^i^l^^^Iol^oi'the Chief Justice, at the cixcuit 

a Tcflfci can not On the trial it was proved, that the vessel, in ft 

berepaircd for . ^ . .7 

half her value, cution of the voyage insured, encountered heavy 

•he may be a- 1 r • 1 - r i. • i_ 

bandoned. If a vcrse galcs of wmd, in consequence of which^ a 
abandoDed^I ^ general consultation of ofiicers and crew, it w^ 
mcnt*^'^?cd; "**"*P^ ^ ^^^ *way ^^ ^^ West-Indies, That the 
JJJ^^*^^^<^^°J.the beginning of the month of January, 1799, ai 
all conc«aTicd, the island of Su Christophers, in a very disaUc 

under an order _ , , ,../-.. 

of a Court of and was there, on the appbcaUon of the master^ m 
noQDcing^f^ tion with the mipercargo^ who was also apart own 
p^inR??he 'E*^"^ surveyed under an order of the court bf ad 
par?owm:r**F* ^'^^ afterwards unloaded for the purpose of a s^c 
v^rczrgo, it is yey ; upon which second survey a report was mfid 
the abandon- That the ship couU not be repaired for the full, 
l^r arri>^ ^'t ber whcu repaired; and that she whs in such^ ^ 
ft? b^"fo,S**"; condition, without particularizing -,thc seyefial ^i 
Uff^cd Vot ^*^ **^^ received in her hull as well as rigging, .tiu^ J 
more than (he be dsnffcrous and unsafe to unload her.caiaoi .{ 

coft, and he at , ' 

the time of ac- ceed With her on her voyage* And to rqMucilm 
£ave th^"Vo-be highly detrimental to the ixUerest of th^ oicn^a 
£^U*nced™dcrwritersofthc said ship and cargo.. .:: -^ 
5er"of^te'to" ^^ ^'*"* ^® court, upom the like ajupliofttiWir 
the underwri- a gale of the vessel, for the beaefit of the 4;opafnf 

ter when flic _ . - 1 . , ■ * 

A/nven, nor of sttle took pfaice, and at it the superoaqp^liaaiMaiji 
^ierMc! c^iaier for the %fico)aA%.Q& th^ iaikibo^ iir^ii«] 


(> dollars. Upon advice of her ntuation, the plain* A^S^fSol 
ibandoxied to the underwrilcvs, who refused to accept * 

was admUted that the vessel, in ccHisequence of the 

stets experienced on the voyage, was so much in^ 
l^M to render u impossible, from .the high price of 
srials and wage&» to repair her at St. Christophers (so 
» bring on her whole cargo) for half her value^ 
vas admitted, that in the spring follOfring, she came 
ew-York with a light cargo of rum and molasses, be* 
ibout sufEcient for a set of ballast, and that she might 
^ brought a full cargo of rum, which was proved to be 
17 light and buoyant cargo. That the interest of -all 
owners in the vessel was not insured. That oft her 
ral at New«-York, she was not offered by the plaintiff 
kt defendant, but was sold at public auction, without 
epnaettt or approbatioo, for the sum of 10,100 dol- 
I and was afterwards repaired by the purchaser at • 
Merable expence* 

a this evidence, a Terdiet was rendered for the plain. 
IS far a total loss, subject to be diminished according 
och'principles as the court should direct. 
EMDihon for the plaintiff. On the &cts stated in the 
I die application of the general and established prin- 
9 of the law of abandonment, is so clear and plain, 
sorely no objections can be raised on that point. The 
t cannot Imt be acknowledged, and therefore to anti- 
ta any tlung' which may be urged against it, will not 
ttempled. The question on which we apprehend the 
id^nt ^iU most rely, and which, it must be confessed, 
^allffident importance, is whether the repurchase of 
Mtel by the supercargo, did not turn tliis technical 
l^idco merely an average loss according to the decision 
iidtfr and Craig v. Church. So far from disputing 
bw of that decision, it is fully admitted ; but the cir^ » ^^ |. rnppoMft 
•of that- case, aa weU as those in the one in ^^^^£^ 
1^* on the aiuthority of which it was in ajf^*^** 
|lii(— IKt dliti I inhic^lt' essentially vaiy from the pre- M^MUMues%« ^. 
j»4 fi l gM fc|«wi Cts^vd Cfeuvcb^md^ii^ the cMt ^.¥je«.^u« 



ALBAlfr; Jq Term Reporta, thet« waa no abaitdomnent bcf 
Augiift 2803. ^ 

' repurchase. In this the reverse is the fact. By 

chase the court will please to understand, notice of 

chase ; for the mere fact, it is conceived, can by no 

* influence the questiom If at any period, the right t 

don from what was known, perfectly and fully at 

if the event then disclosed warranted an abandonmi 

right as it thus stood, cannot be impaired by any 1 

existing fact which would, if known, have taken i 

In the decision to which allusion had been made 

Kenyon observed, there had been no abandonment 

notice. It is true. In Saidier and Craig v. Church. 

purchase was not known till after the abandonmei 

this was followed by a subsequent proceeding oi 

impressive nature. On the arrival of the vessel h 

was taken to, by the assured, repaired, fitted out, s 

on another voyage. What did this amount to? 

could it amount to but a complete adoption by the ! 

of the act of their agent, as done on dieir account 

consequence is obvious : it turned into a partial, tl 

that had been made for a total loss. This, therefo 

atitutes a material difference between the two easei 

there is another circumstance equally important. 

present instance, when the offer to abandon waa m; 

assurer absolutely refused to accept it. In Sai( 

Craig V. Church, they were merely passive, and I 

reply. When the Mary came here, she was not ei 

and fitted out again, but as she was refused, she 1 

at auction for 'the benefit of whom it might coBCff 

what was done in the former case, there can be 

possible interpretation ; that the assured took lie 

and waived their abandonment. In ihisj no such tl 

be inferred. Every act is consistent with the di 

made. There had been a clear right to abandon, 

abandonment had been refused. To scHtheaU 

duty of the assured, and only to prevent totlie«l 

tota) lens, which, otherwiee, mustukimkfcely havtHp 

The proceeds are doubtless to be accounted forfil 

ifonotveakea thepTtecmc\«LtEu Tbtvc^Nd^^ll 


BoU far nore than she cost ; but what of that i It ALBANY, 

August loOja 

If ao mvch the better for the underwriter. It does \^p-v^^^ 
iker die right which had before been exercised, and 
MDod ttnimpeached. I'he ground of the decision in 
hrud Cnug v. Church, was that the plainiifF had' 
idliii -abandonment by taking possession, fitting out. 
To govern this case by that, it must first be deter« 
dwhcther a sale at auction is equivtdent to a fitting 
md this must be done, only btxause there was no 
if ker after her arrival here. And even then it must 
riUered whether this, as a reiterated act, and doing 
R than what had already been done and refused, was 
■17 to be repeated. The sale at auction was a con- 
iva act, done merely to prevent any future deterio- 
I It was a measure dictated by what had already 
phccu The former refusal continued aa a guide to 
kHiff's future conduct, and on Uiat he acted. The 
qr waa thrown into his hands, and it may, perhaps, 
lestion whether this did not of itself constitute him 
rit for whomsoever concerned ? The repetition of 
!er of die vessel, was a work of supererogation* 
iiver of the abandonment could never be considered 
tf of intention, or premediuted design. It must 
rom implication of law, and on the principle that a 
BUgntory offer, is, by law, absolutely necessary* 
hfesaere selling a property insured is not a waiver 
tvioiM dMUidonment, the decibion of this very court 
a Relieved, firmly established. InBowne v* the New 
nanmee Company, after a refusal of an abandon- 
itigtads arrived and were soldby the assured. It waa 
p'tiiia bench, that the sale was justifiable from the 
ffi(9§ the underwriter* To be sure, a second offer 
bnia>bee& made, and had the advice of counsel 
kadf.k bmore than probable it woujd ex ciiuteU 
wnnmonimended : but it was by no means necea- 
^ ^ insurer had, from his conduct, render- 
He, the person entitled to the ship, 
i the hands of the plaintiff, constituted 
[ to Accept /ico mwgmt, aa the CoreigOL 


"f^^W' Writers term it from neceMity, lc8t«n absolute loM ol 
' whole subject matter should ensue. To ptfeserve ic^ 
to the advantage of all parties. If the plaintiff was tot 
it, his interest required that care should be taken of 
if it was to £U1 to the widcrturiter^ certainly ^rcqw 
90, because he lessened his payment^ ^4m4^in tbcprei 
case actually made a profit* ^ tj .- 

Hoffman contra. Whether the preaept Uto-keM 

dered as a partial or a total loss is, in fieict, tb#.on^iic 

in controversy. That it is partial, the defendant iasis 

fidr this caseis in no respect to be distinguished from ti 

ai!!riS*G^ of Shaw and Goold, decided in this court, and coota 

jN john^ shiw, on a writ of errror ; so diat the principles there lecqg 

l^teAmcr. zed, are now to be taken as the settled law of tha Isi 

^^^' There the damage to the cargo, did not afieet the potiqr 

the ship ; because slie was in a csqutcity. to cgapplft»; 

voynp^c, though she did not do it on account of .the ioji 

her cargo had sustained, in consequence of which li:^ 

sold in Martinique. It follows, from the authoiil^of ^ 

case referred to, that as, in insurances, freight, veisdl 

c;irgo, are dbitinct interests, the total loss of om^, hj 

means constitutes a right to abandon on the otheisw\> 1 

underwriter on the ship, has nothing to do with the IM| 

and though the Maiy was sold in St. Christ(yherS| aidbJ 

voyage tluis broken up, as it is termed, tliat did not % 

any rights to the assured on the vessel. The inlereilifll 

totally uncuniicett^d ; an insurance on the voyage bemg 

no means synouimous with one on die ship. For tkis i 

tiuction, the court will find a sanction in Poole v. Raj 

• See t^f 2d raid, WiUes's Ilep. 641.* The fact however hcx^ was^^ 

SJc" c!"j. ibiS the voyage was not lost, for the vessel arrived with acsi 

fhc ■ inTu™« ^^ ea"^^^ it^\z^t. So that, allowing the loss of the x\ 

J*J^ ^ ?" * age to mean a loss of the ship, and therefore to give a l| 

to abandon, and claim for a total loss, still tliat loA I 

not taken place, as the vessel could haye brought m full c 

go, though not die original one. She had |pKt no ^cigbi 

crcrt^.fcven a technical loss of the voyage* . ^i^ Irnd oi 

ed pro rata freight to St. Christophers, and from 81. d| 

tojdiers liere »he made full freight. Tlymt nBjiiii w 


Fthe voyage, but a profitable one performed ; and ALBANt; 

! ship herself, she had arrived ih perfect' sdiV^y. yjg'^i^ 

then, this case can be distinguished from Stutw AWwtt 

M, that decision must controul this, and the daim BtDomc 

or ao'sverage, not for a total loss. The deteitni- - 

do in Sddier and Craig v. Church, goes on al^ 

li the present case. The factei were exactly simU 

tiKS betn attempted to discriminate between thon^ 

9 eukf in o{)eration of law, be no essential differ-- 

wisen takinfif possession of a vessel and fitting her 

b tsiking posfk,-s<non of her and selling her. If so, i% 

sr- be meant, from the bare transaction itself, ta 

s otherwise, when the sale had been at an advanoa 

Mtban she cost, and tlie surplus put in the plain- 

ket. It is evident the plaintift* fully intended to 

» purchase of his supercargo, who, it must be re- 

vif was also a part owner, and designed tlie sal* 

irn use. The concliLsion is almost inevitable, that 

oan makes a sale of what was his own, to a profit, 

t for himself. It had been done by the plaintiif 

consulting the underwriter : from his own will, 

idditioR to this, what bad been the conduct of the 

ioice f He had never once offered to account for 

» If he had meJint to have been considered as an 

r die tmderwriter, 21s suggested that he was from 

V'he would have offered to account for the profits. 

f ibis, he has tliem now in his pocket, and con* 

oor-being there, only on the ground of the repar- 

Fuig been made, on account of the former ownen. 

imaC'idlfellfla tQ tke case of Sbidler md Craip, ▼. Chmth, nukm 
DC dnree a part of the prefent, the rqportcr has thought it neceflarf 
mibf&h ttnprtaenttdia the case nude for the opinion of thecouit. 
.Thnt tbic tnnmocc madfl in the name of Thomas White, was maila 
bednii of the plaiatifl», and that they were the sole ownert of thf 
ppwl te<h9 'Pdi^* 

Mfefin her due course on the voyage insured, wu captured by a 
itoiiWted ttirled into Guadalonpe, and that thereby her Mid voyagQ 
■■h wai totally lost . 

lMAh#tlke vessel WW duly HbeDed fai theadmindty eoavt» «n4 
■liiMiyil. euil after condemnation was purchased bv Gcoi^ Du- 
BlKWHr At tecoont of the ownera for the fam or eleven hnft- 
m.., Tb^ the said master was also a part owner. . IJuhl 
f fitted'out the said brig and sent her on another voyage, 
roen knew of the enpcnre,. and before thpy ffvcnt in* 
ition, or of the purcbaic by the captaiOt they gwre tka 
MMMcUlMitodeaL ? - / ** ~ 


AtiA]^, It had bowei-er been said, that in Saidler j^nd Cnig 
'^^s.^.'^J/ Church, the underwriters had been merely p^issiTe,.! 
. Abbott h^.rf. ^i,Qy 1^ j actually retused, aiid that frpn(i hence a, 
versity between the cases, would necessarily arise. ^ . 
~ Saidler and Craig v. Church, what had pa^ed ^mpviitel. 
a refu^^ii. An abandonment, followed by ulence apd fQ 
acceptance, amounted to a refusal : for, he. who do0 n 
accept, refuses. If, however, any variety does ff^ys^J 
the two cases, in this it is stronger against the aisure4>, J 
Saidlcr and Craig v. Church, the condemnation, ,89^ J^ 
were forcible ; the result of a capture : but here, they i(j^ 
induced at the request and instance of the part owner, ip 
iU|)ercargo. The plainti A' has received his vesseli . p|n 
sed in by his pait owner ; the underwriter, tfaertfoi^W 
ble only for repairs. Insurance is noniorettian acon^||fi|tii 
indemnity : if it is to be so considered now, 
recover only for a partial loss. ^ 

Harrison, for the defendant. The decision in $liiwdj|i 
Guold is conclusive on the subject. To the judgneot w 
pronounced, every man must acct^dc, because* lulni 
ranees, the various subjects of vesiiolj freight, an J cm^ 
arc perfectly distinct : what, therefore^ aUectcd the c^ 
by no means implicated the others. Suppose ^ total loee*^ 
carffo and freight^ let it be citlier absolutely of technical 
so, the assured on the ship would not, from thi^^ act|uifl 
any right to abandon. That must depend on otlier ctf 
cumstances : itcainiot turn on her ability or inability Xq^ 
ry her orijj;injJ cargo. If the ves&el can be repaiiuJ h 
half her ^alue, whether she be adet^uate to tlie convcvoDf 
of her cargo or not, can never give Llie assured ^ il^^ 
abandon, or claim as for a total loss of tlie ship, ThtrP 
fcl in question had earned nearly her full freight ': the * 
ginal cargo had paid it ; the substituted loading liail ^ 
tTie same. How, then, could a total li>ss be cljuri>ca% 
thatsliip which was then profitably and utiranUtgeou Jy «* 
ployed? Taking it, therefore, intheniosteompnc^^ala«» 
connected point of view that could reasonnbfy be stiggotd 
there could net be a total loss of the vessel, wliile ihelripffc 
was stiU subsisting. In order to e&taijliiJi tlais aaa tmdi0 


3 pLpntiff must still more closely unite the subjects of in- ^j^i^t^^toj. 
raboe. He must advert to the incompetency of the ves- ' 
to bring borne tlie cargo, and urge this as the foundation 
ins demand ^ and because the voyage is broken up on the 
go, the loss of tlie ship is necessarily to be inferred. This " 
D direct opposition to Shaw and Goold, the contrary of 
idiwas exptcssly determined. The trifling variations 
dwt case from this, cannot alter the point, for it is not 
r^ little chanjj^e and alteration of circumstances, or any 
b change, thtt would take one out of another. Should 
t <fecision not be sufficient to incline the court in favor 
At defendants, Saidler and Craig v. John B. Church, 
I govern the question. In tliat, as in this, ic must be 
ieht from all the circumstances, that the purchase was 
die benefit and on account of the assured. The pro- 
ty, wbeii in the power of the plaintiff, was never ofler- 
to the defendants, and that alone is a waiver of the aban- 
mient. In favour of such a construction, the facts uow 
ore the court are stronger than those of Saidler and Craig 
Srarch. There the sale was involuntary and compulsive, 
e it was not only voluntary once, but twice ; and tlie firsc 
if even at the request of the supercargo and joint owner. 
^ was this the whole from whence the construction of the 
K&ftse being on account of the defendant, might be 
itiii. There was a shipment, a cargo taken on board on 
iOapt of the assured. In other respects the crises wer<$ 
DI. In that, an abandonment not accepted, in this, an 
Hidimaient refused. In one case the vessel was employed, 
Ift^otiier she was sold. Had not the underwriters a right 
Mf consulted as to the time, place, and manner of the sale ? 
'^oes it appear that they were not willing to retain 
'The plaintiff should have offered them the freight, 
^be'tmount of the charges for repairs, &c« aad then 
^Saimcd compensation under his policy. Instead of 
such a line of conduct, the property is disposed 
their knowledge, and is now held. If this 
,' the security of underwriters is destroyed. 
it must be confessed, be a difference, it the 




^ Augnit 1803. 

* Tliry ilo not 
•cTin very M'pa- 
to the decision 
in the United 
paiiy of New- 
York V. Lenox. 
1 I MX. Mcr. 
Amcr. 197. 

transaction had taken place in a forei^ cotitfTiy^ '#heH 
application could be nmde to the underwriters^^ bdtli 
when all concerned were on the spot, the pstrt!e#wIib'iR 
so active, and without making any communication', t 
be held t6 have acted for themselves. In addition to tl 
circumstanfes, the court, doubtless, will observe,' thftt 
plaintiflf has received the freight earned by her, sifter 
being bought in by the supercargo and joint owncf. Tl 
it is conceived, is tantamount to fitting oUt and employ 
her, and is evidence of her being in the service bf' 
fbrmef owners. 

Hamilton In repl)*-. It is difficult to conceive liow Sii 
ahdGodld could be connected with the present case;'* 
dissimilarity is so great, it is scarcely possible to 1 ttkjj 
how it could be pressed into the service. The caiic'i 
an endeavour to constitute a total loss of the vessel 
account of a loss on the cargo. It was^y the speciil'|^ 
diet expressly found, that she could have bceh"ripiiii 
for less than half her value ; in the present instance ii li 
expressly stated, ** That she cannot be repaired UA '' 
•• full value of her when repaired.** I shall, after tliis p 
liminary obscrvati(fti, endeavour to shew, that the pHi 
pics of that determination will bear on this, and matera 
aid the plaintiff's demand. For that purpose, it wlfl 
necessary to recur to the general position of the cdu 
that in insurances, the various subjects are totally duS& 
that in construction of law, vessel, freight, and'cargp^ 
separate interests ;* and it is fully conceded, witfi'tnlf 
posite side, that the loss of one does not con&titiitc a1 
of eitlier of the others. On these data the coiirt picditc 
cd in Shaw and Goold. In that case, there was BO ;i(i 
lity in the vessel ; she could have pursued her veiyaffci 
her cargo, here she could not. The ability of a vWse 
perform her vo>'age with her cargo, is the very esMia 
the contract of assuhuice upon her : it is the su^mS 
of the policy. The assured warrants that stie is aoW^ 
cominencemcnt of the voyage, and the^assum'ciMBg 
that so she shall contihtle, against all the pei^'eSmS 
ted, until it be terminated, ' If the vessel become inia 


it. with her cargo, the court must conaiiler it ^JJ^S^f^ 
6s with, respect to her, and the policy forfeited, 
low advanced, which is not perfectly reconcile- 
he distinctness of the subjccU of insur^sunce : ^ 
se of the loss of the voyage wa« wholly the 
rose from her inability, against wbich the pOi» 
rant to protect. When that inability could not 
I for half her value, then she, the very subject 
:e, was technically destroyed, and, abstracted 
quent circumstances, it became a total los8« 
lurchase then, was the only thing which could 
^ent the result. Suppose her purchased for, -and 
r person, how would that vary the underwriter** 
r rights i In either one case or the other, he 
uded or injured. The purchase on his account 
red, can never be detrimental ; he has the ves* 
she coigt, and he has also what she sells for. 
of Saidler and Craig v. Church, the abandon- 
i^emiled, solely because the employing the vcs- 
med a waiver. I must again beg leave to in« 
agency from necessity of the plaintiff, and to 
eing merely passive in cases of abandonment, 
It to a positive refusal. The underwriter has 
?fore he is under any obligation to decide on 
» abandon'; during that period, circumstances 
e him to be cautious, and hesitate in pronoun, 
termination ; at this time he is passive. The 
here refused at once without hesitation. The 
ust be whether the offer to abandon ought to 
and in all future cases mu^t be, repeated after 
efiisal to accept. Living on the spot^ does not 
[uestion. To offer a second time, would be 
esy : for after one party has explicidy taken his 
fhatj the other may act and make it the line of 
:ondact. Whether this rule is to be adopted or 
r to be determined. 

un, delivered by IladcUiT J. In this case, the 
I isj whether the plaintiff is entitled to re** 

y*. J > ■ I 


AUUirr, cover a total or a partial loss ? Two o1)jectio&s have be 
' made against the recovery for a total loss. 

1st. That the case of a total loss never existed. 

2d. That the purchase at St. Christophers, by the m^ 
'cargo, who was also a part owner of the ship, atel die sil 
sequent sale at New-York, without the consent of tile d 
fendant, or a previous offer or tender of tlie ship to hk 
amounted to a waiver of the abandonment, ami 90 sdoj 
tion of tlic vessel as his own. 

With respect to the first, it appears that llie sUp w 
condemned at St. Christophers, as unfit to proceed 0R>bi 
voyage, on account of the injuries she had reoeivfd'^^'ap 
the persons appointed to survey her there, certifMtf^ 
in their opinion, she could not be repaired for hdr -k 
value when repaired. It is also admitted, on the ixot M 
defendant, that in consequence of the disasters experiflM 
on the voyage, she was so much injured, that k iHIBHU 
possible, from the high prices of wages and maMU^^ 
repair her at St. Christophers for half her value, soiBYoil 
able her to bring on her whole cargo. It is again adnultt 
on the [>art of the plaintiff, that in the spring foUowil|| 
the ship came to New- York with a light cargo of M e l tti 
and rum, being about sufficient for ballai^, andthalii 
might have brought a full cargo of rum, which wasprov^ 
to be very light and buoyant. • ' 

On these facts, I am of opinion, that there exbiri' 

case of a technical total loss, and that the assured' kit 

right to abandon. The question, in such case^'tfji 

whether the vessel be in a capacity, or in a situatioii ttf) 

repaired, so as to prosecute her vo^^age with a half^ '^S 

ether portion of her cargo, but whether she u 1 nptUV 

proceeding, or of being refitted to proceed, and dliyjN 

whole. A vessel is not seaworthy, unless she bbUif'A^ 

dition to carry a fixll cargo. The contrary idi^'W-lM 

and^uconsistcnt with every ^principle of pioptiAtfjJBttli 

ty in navigation. The vessel was insured tb |kJriHl||i> 

vb}^e, and carry her cargo from Batavia 't&'19JNr4fli 

This she was disabled from doingi Tlie'entdriiHiK,wi 

■ .i:/>lf' III 


faUedy by uieans of the perils insured against, and ai.bant, 
laintiff hacl a right to abandon, and claim a total loss. y_^^^^^_i 
fi 8CC<yKi question is, whetlier he has wuiveil tills Abbott 

The ^oissel was ordered by the court of admirahy Broome. 
Christophers, to be sold for the benefit of all concern- — — 
The supercargO} who was one of the owners, pur- 
i hor on account of the assured. The assured had 
»isly, on receiving advice of her condemnation, and 
I any notice of the purchase, abandoned his interest 
i underwriters, who refused to accept the abandpii- 

la what manner the supercargo, being also one of 
imers, might be afTocted by the purchase, it is uiine- 
J to determine. The question is, whether the plain- 
dfied his acts subsequent to the abandonment, and re- 
wad the purchase as liis own. In the case of Saidler 
Icaig V. Church, after an abandonment, a similar pur- 
Viis made, and the assured adopted it as their own, 
liling themsc^Ives of the advantage it oficred, and fit* 
at and sending the vessel on another voyage for their 
ipxount. Under these circumstances, we considered 179^^^ 
iored as having affirmed the purchase, and waived 

e present case differs in this, that the plaintiff has 
no act to affirm the purchase. He has not appropri- 
be vessel to his own use, and has not attempted to de- 
ny benefit from the purchase. The vessel was ^o!d 
Aion on her arrival at New- York, and purchased by 
nger. Although it be not expressly stated in the case. 
Inmost be presumed to have been made for the bene- 
tli9 underwriters. It is objected tliat the plaintitfought 
fJobskTe offered to deliver them the vessel, or have con- 
/Jtb^ as to tlic propriety of the sale. 1 think'this was 
f^ftlj necessary. The abandonment was an oO'er to 
^.Ul title and the possession of the vessel, as far as 
j,the /^rcunistances it M-as capable of being delivered. 
iff^l^ff, was not bound to do more, and it being a 
^ij^per.for an abandonment, the defendant ought to 
^gpCTftdit; or, at least, the refusal was at his pe- 
He did not accept, and the plaintiflf was iiece»- 



An award 
in trespau that 
** the said suit 
■hall no further 
is suffi' iently fi- 
nal and certain, 
and a g(K)d bar 
to ?.n action on 
the ca.-«c for the 
•amc olTcuLu 

AI.BANV. sarily left to act as his trastce in the disposition of . 

V^.^^^v'J^ proiKTty. If he executed Ihii trust fairly, lie has diflch 

;A^bQtt ^^j i^j^ duty, and it was nut incumbent on him to^ 

Broome xhe defendant, and repeat his application to r^cdve id 

- - lie. oujrht at first to have accepted. The sale at auctioa v 

therctt)rc justifiable, and the defendant ought to be charg 

^ith a total loss, deducting the proceeds of the aale„ ai 

the value of the freight from St. Christophers to Nei 


Ebenezer Purdy against Mathew Delavan and S 
muel Delavan. 

This was an action for a conspiracy, in buroittg ll 
plaintiff's bam, and the various articles it contained. 

The declaration contained seven counts. 

The first stated the plaintiff possessed of a bom ■ 
close, containing hay, &c. The defendants, knowing t 
premises, and contriving to injure, &c. the plaintiff, b) 
certain conspiracy, confederacy, and agreement, did can 
the barn, &c. to be set on fire, destroyed and consumed 

Second like the first, except that the defendants ( 
conspire to set on fire, and cause to be set on fire, a 
consumed, and destroyed, the barn aforesaid, contaimi 
&c. and by means of the conspiracy aforesaid, the bam K 
set on fire and consumed. 

Third. The same, stating that the defendants, by eoft^ 
racy, &c. did procure the bam, &c. to be set on firCi i 
stroyed, and consumed. "*^ 

Fourth. That the defendants did conspire, &Cb Co ^ 
fire and cause to be set on fire and destroyed, the bMI 
aforesaid, &c. with an averaient, that the bara w«»a^ 
suance of the conspiracy aforesaid, set on fire and toil 
mcd. ' ."ic 

Fifth. That the defendants, by a conspiracy befioiiB^t 
did cause s^d procure the barn to be set on firr mitid 
sumed. . /..v*> 

Sixth. The same, only enumerating the cotitaManf 4 

Seventh. That the defieadaBta conspired to^j 


5i? THE STATE OF NEW-YORK. ' 30lf 

ttJAey, inpursuance of their conspiracy, did, &c. and did /^'^^^ 
CHK to'be, by fire destroyed, the bam aforesaid. v^^Zy^^^ 

AB the counts began as in tresptiss, ** For that" con- ^^^ 
; diniog with ** alia enorma against the peace,"* &c. Dehvin. 

■• Tlie. defendants separately pleaded the general issue^ • it has been 
viAii notice, that on the trial they would severally give •?^^^*'**^" «- 

I. I ^ . ^' -^ ' ^ tion ujion the 

■ evidence in bar thereof, and accordine to the form of case is toundca 

J.' ' /. . . . 1 1 r 1 **P**" * wrong. 

Be Statute, a tormer suit in trespass against the delena«and conciutics 
«Mathew, Hannah his wife, and the other defendant Vauv.ii.?o""F: 
Swuel, for breaking the close of the plaintiff, and also i,ut thi?^ w^a 
far burning his barn, containing, &c. and that they could {|jjj^^*jj;;[j^^ 
nm further in evidence, a submission of the said suit by cfm, arc a •i>e- 
ne plaintiff on the one part, and the said Mathew andTietamUs. sce 
Bnmah for themselves, and the said Samuel their son, an Mec.6i. 
i^t, on the other part, to the arbitremcnt of certain ar- 
Vintors mentioned, and their award thereon made, by 
l^Bch the plaintiff was ordered to " 720 further prosecute 
^mijdwit^^ and to pay the defendant, Mathew Delavan, 
14dfAars 68 cents costs ; and further, that the suit on which 
tl^^sid award was made, was for the same trespass for 
^^)udi t^ present action was brought. The submission 
sidmrard were in the following words : 

,1l|e condition of this above obligation is such, that 
^riieitas, a bam of the above Ebenezer Purdy haih been 
^ttlrpyed by firp, together with hay, grain, and other va- 
^ljK articles which it then contained : and wherear, the 
^ Ebenezer Purdy hath instituted an action in the Su- 
lp^.\Coan of Judicature of the State of New- York, 
4||||f^.tlie before named Mathew Delavan, and Hannah 
Vlffibyiaaid Samuel Delavan his son, for burning and 
ifafi^gnag said bam, in which ^tdon the said Mathe\^ 
iMl f l m, Hannah his wife, and Samuel Delavan, have 
li^lM JK>t guilty, so that the said action is now at issue : 
MftflA*eas^it is just and right that if the said Mathew, 
MUs vife, and his son, or any, or either of them, have 
^lit^'S^'fitfsri burnt d or destroyed the said bara^ or have 
Bi^kidl in any manner aided, abetted, assisted, contribu<« 
**^jmiPiii<nrJ, or been prrvy to die burning or destruc* 
•ta^Atreof,- (which they and each of them wholly deny^ 


ALBAinr, that then he, the said Mathew Deknran, shall pi^ 1 
' said Ebenezer Purdy, aU the damages he hath suit 
thereby, which the said Mathew Delavan hereby i 
to do. And whereas, the said Ebenezer Purdty aw 
thew Delavan, have mutually agreed to diaccutnu] 
said action, and to submit air ^fffsfy^yi', diMfiuUif am 
troversicM touching the destruction of the said baf 
the contents thereof, and the damages the said E 
zer Purdy hath sustained thereby, to the judgmeti 
awaM of Epenetos Wallace and Hachaliah Browv, 
and Stephen Gilbert, Farmer, or any two of then 
bitrators mutually chosen by and between the >sai< 
ties, to arbitrate, award, and determine, toacMh 
premse9. Now, therefore, the condition of .the *] 
ding obligation is such, that if the above bounden \ 
czer Purdy, his heirs, executors, or administratoiss 
and do, well and faithfully abide by and perfofz 
judgment, arbitrement, and award of the said Ept 
Wallace, Hachaliah Brown, Esq. and Stephen Gi 
or any two of them, so that their award be made i\ 
ting, and ready to be delivered to the saidpartiei, 
before the twenty-third day of June instant, then ti 
ligation to bcr void, or else to remain in full force or 1 
Whereas, a certain suit has heretofore been coB 
ced in the Supreme Couit of Judicature of the 8ti 
New-York, by Ebenezer Purdy og^nst Mathew- 
van, and Hannah, his wife, and Samuel DdivlP 
son, for the burning and destroying the bam of tt 
Ebenezer Purdy, by fire : and whereasf fbrthe^ 
an end to the said stiity they, the said Ebenezer | 
and Mathew Delavan, by their several bonds ttud^^ 
tions, bearing date the second day of June, ill t^ 
of our Lord one thousand eight hundred aikdoh^ H 
come bound each to the other of them, in the |MbW 
of two thousand dollars of lawful money of ^S^^ 1 
States of America, to stand to and abide thci''iKfM|| 
final determination of us, Hachaliah Browh^ 8teiK(| 
b^tt, and Epenetos WalUce, so as the said'Mtftl^llr 
in writing^ and ready to be delivered to tfjr liXfj^ 


bdfare. the twenty-third day of June instant, as by ALBANY, 

id bonds may appear. Now, know ye that we, the ' 

"bftl^tors, whose names are hereunto subscribed, 

als affixed, taking^ upon us the burthen of the said 

; and having fully examined and duly cctisidered 

io£i andallegations of both the said parties so made, 

1* this our award by and between the said par-. 

I manner foUai\4ng : that is to say, first, We do 

and order, thvd the aforemid euit shall be no fur.. 

osecuted : and further. We do award and order* 

e said Ebenez«r Purdy shall pa)*^, or cause to be 

into the said Mathew Delavan, fourteen dollars 

(ty-cight cents, in full, for his costs and expences 

nding the aforesaid suit, and also for his expences 

eadancc on this arbitration. In witness whereof^ 

e hereunto set our hands and seals, the seventeenth 

June, in the year of our Lord, one thousand eight 

:d and one. The defendants' counsel then moved the 

I direct the jury to find a verdict for the defendants* 

principle, that the submission and award so given 

ence, barred the plaintiff of a right to maintain his 

kauit, which motion the judge overruled, declaring 

nion to be, that the award was not conclusive be- 

the parties, so as to bar the plaintiff of his present 

t^ith liberty, however, to the defendants to reserve 

nfj which was accordingly done« 

jury being charged by the judge upon the issue of 

fjfjf and having returned to the bar, said, they 

be defendants guilty of the matter contained in all 

imts in the declaration, except the last, and of 

jfi^Ders they found the defendants not guilty. 

ids for the defendants. The present motion is to see 

|C Te^ct, and, if the court should be of opinion 

^pn that point, to arrest the judgment. On one 

f tPSFP^^ ^^ ™^^ prevail, and for that purpose, I 

|p{^d^,t|;iat the award was on the trial, final and 

||(e.c^d«;ii^ to bar the action : secondly, that the 

j^pj^g^^fB defendanu guilty as to the first six counts 

^jfe^ the^y^venth, is contradictory ; thirdly, that 


ALBAKT, this action, as it at present appears on the award, « 

' not be supported, being evidently a suit in trc^ 

which will not lie for a conspiracy, as the remedy oi 

to be by an action on the case. On the first pmA 

must be admitted, the award was intended to be 1 

and conclusive as to the burning tlie bam, be 1 

pkiintift' ought not to be permitted, after a suit fori 

very cause, and submitting it to arbitrators, who t 

on themselves the burthen of the award, and absda) 

make it, to bring another suit for the same oHence. ' 

plaintiiV cannot, by merely varying his form of proceed! 

(if there be any variance in tliis case) bring a subseqi 

action on the same grounds. The award is final andc 

elusive, therefore, on tlie cause of action, not tlie fneTrepfoa 

ings : it says, the ** aforesaid suit shall be no further flit 

cuted.'* This must be taken as if it had been doclarfid^ 

defendants shall never again be impleaded for burning 

barn. The rule of construction in awards, is mcffe lib 

than it formerly was : the courts look to what wai desigi 

because the arbitrators are judges of tlie parties* own ch 

ing, and not tied down to technical rules. In Strang: 

V. Green, 2 Mod. 228, the submission was, by the defi 

ant, on behalf of himself and partner, of all dtffera 

and contro^'t!rsies between them and the plainttfi*. 

award was, '^that all suits which are prosecuted )q 

<^ plaintiff against the defendant shall cease." Tfaiii' 

the court, has the effect of a release. So bcrcy tlut 

^' suit sliall no further be prosecuted,*' will have theJ 

operation. Another inference is to be drawn firomiM9 

thorit}', in answer to the objection that may lieandlf 

the siibmission being only by some of those wbQ'j 

proceeded against In the first action : but they YoA^ 

to rel'cr for the oUier, as they were the parents of tlV 

fcndant Samuel. In the case cited, one partner vAM 

for all, and yet the award was not on that ground irfff 

able. The same principles will be found in Kyd,9l9<l 

kins V. Colelough, 1 Burr. 274. Gray v. Gray, CiW? 

525. So in Harris v. Knipe, 1 Lev. 58 an award :^ 

s^ suits and contro\-crsies shall cease;^ was lidd'g«Ji 


ai, though no other part of the award was valid. In ALBANY, 

^ -I « It » 1 , „ Auguit X803. 

ii¥. Oavil, 1 Salk, 74. the words v/ere, "that all suits 

X depending shall cease,'* and it was urged in en-or to 

al, " because the meaning is not that the party shall 

e over and begin again, but that the suit should abso- 

sly cease for ever, so tliat the right is gone, because 

remedy is." Even an award " that a suit in cliancery 
U be ilistnissefV* is final ; because tlie court " will in- 
d this a substantial dismission and jicrpetual cession." 
it V. Burton. 1 Salk. 73, 'i Vin. Abr. 67. pi. 28. i\s 
scond point will be spoken to by the other counsel in 
mac, it will be necessary only to go to the third. The 
(declaration is for a direct trespass : if so, it is not main- 
»le,on a conspiracy. The mode ought to have been by an 
I on the case, or a writ of conspiracy, according to 
igister. That the present is a declaration in trespass 
A be doubted. The beginning of each count is *^ For 
t," and not circuitous, as is necessary in actions on 
ise, which being for consequential damages, com* 
B with " For that whereas." This declaration tliere- 
cannot be in case : and if it be trespass, it will not lie. 

be found, on examining the authorities, that a bare 
iracy, without any act done in consequence, cannot 
I foundation of any suit. The first six counts, though 
iBedge conspiracy, and that tlie barn, &c. was burnt, 
t charge us with it. If, in addition to this obscrva- 
there is any technical rule, by which tliis dcclardtioa 
c deemed trespass, the court will apply it. In Scott 
^herd, 3 Wila. 403. 2 Black. 892, the court held vi 
m conclusive on the question ; here the words arc 
It the peace of the people, which is tantamount. Are 
le counts charging a direct injury to the plaintiff ? Do 
lot shew it in express terms ? If so, shall it be permit- 
B plaintift', by adding the words conspiracy, &c. to 
le declaration just as it suits his purpose ? as case to 
wu the suit as a cpnspiracy ; and when objected to 
Qount^f fonUt to turn round and say it is trespass. If 
iq, it is. the same as saying the defendants burnt tho 
imd fixatives that they caused it to be burnt. There 


JUwuti^^' " ^^ method of sapporting the declaratioDf witho< 
' setting aside all the rules of pleading which relate U 
pass and conspiracy. 

Golden, Hoihxuin, and Muiiro contra. We sliall first 

"~ as to the award. It is necessary that all awards shoi 

final ; and tlierefore eitlier to be nonsuit or discuuti 

insufficient, though to enter a retraxit is good. The 

aitions sliew tlic nature of awards on this pouit« Tl 

suits sliall cease coofies within tlie rule of a retraxit 

that a suit shall be no further prosecuted cannot : tbei 

however, wiU determine whctlier they are tantam 

But this is not the real ground of objection ; the one 

rdied ou is^ tliat the award is not of tlie matters which 

submitted ^ thut it difler<} fiom the submissioa. If |l 

the case, it is void, uud no averment in pleadiiig, 

eren an affidavit of the arbilrators a^> io tlieir meaniiig 

help it. For this the court will (ind authorities in I 

T. Dubarry, 12 Mod. 129. Dyer 212. b. KydpnAw 

207. The award must set fortb^ that it is on the mi 

submitted. What then was submitted r has the award 

made in pursuance? The arbitration bond mentionSi 

** questions, disputes and controversies, touching th 

'* struction of tlie said barn,^^ &c. It does not submi 

question of i/iai suit. The arbitrators were empowdr 

determine matters not the basis of that suit : yet they 

fine themselves to award on that, and determine agaUM 

plaintiff. The award begins, "whereas, a certain i 

ascertaining what is meant by tliem. They theii p^ 

and say, " that the aforesaid suii shall be no furd^rp 

*' cuted," when they were to determine on allconiraiei 

On this account, therefore, tlie award is void; ra 

submission was of ally and tliey have confined tliGiv 

to one. Besides, they only say, •* if he shall a^ 

award, and not on the premises," From the c^i^ 

pears, the awiu-d was properly rejected ; it is h(k' i 

tliat any evidence was gi%'en on the trial, of any (xnme 

between the suit then brought, and the suit rejfiri^S 

the award. The rule laid down in Scott v. Sbe||^ 

fio doubt correct^ that case decided ti et ai^lSI 


s^ Where the declaration is not in those words, alhamy, 
tiOB IS in case : so here, it not being stated to be 
rmis^ the suit must be considered as on the case 
onspirncy, and every count expressly alleges, that 
conspired to be done, was absolutely performed. ^— — 
he conspiracy is the git of the action, and that 
found, the words ^^ against the peace," &c. may 
cted. Com. Di. Title Pleader, £. 12. 1 Bac. Ab. 
I Heme's Pleader, 233, a precedent in point will 
id. As then the contra pacem may be rejected, 
[owing that the formal commencement of each count 
hat" is bad in case, it is settled wherever there 
the same pica and judgment, different counts may 
ed * Brown v. Dixon, 1 D and E. 276. Dickson * 7^^ ^^^ ?♦ 

^ rather wBcre 

on, 2 Wils. 319. Mast v. Goodson, 3 VVils. 354. thcproceM^>i«ai 

I, as we have an alternative either to bring case or arc aiffcrcnt" 

B, 3 Black. Com. ch. 12. p. 208, toke it either as nol w^-oVncdT 

the other, it is well brought. But, at all events, ^eTilll'a^cw!) 

sr too late to take advantage of this informality 

d to have been insisted on ; it ought to have been 

of demurrer to the declaration. The English au- 

s cannot apply exactly to the present case. By 

the civil injury is emerged in the felony : our 

:tt prevents that, and therefore nothing perfectly . ^ 

a be found in their books. That the verdict is reflating ccr- 

ictory, has not been touched on in argument, inesmcrinri' 

made a point in the outset. If the position ofSSaS^^rSoi^ 

ir side is true, there never can be a conviction ^oiRc^! lI«« 

c count of an indictment, where there is an ac-^. Y.a6«#» 

m another. The trespasses in the several counts 

posed to be distinct ; the finding, therefore, on 

»es not contradict that on the others, and the 

may take his verdict, and have judgment on that 

( for him. The court may view this case now 

liem, as one with a double aspect ; either to set 

e verdict, or to arrest the judgment* The latter 

er b^ done, where sufficient appears on the record 

i^^e co>irt to pronoynce. On a general or spe- 

iBTcr^ it might have been otherwise. In Browa« 



August 1803. 




•The ri'search- 
« of the re- 
porter have not 
ted him to any 
ivhich willwar- 
rant this posii- 

lo\r ^0, a similar declaration is to be found ; an action fi 
a conspiracy in the nature of case, ought to be without ' 
etarmis. Heme 71. 88. 147, is as here. The true dii 
tinctionhas already been taken between case and trespas 
and there is no other ; the latter is vi et armis, the oth* 
not. To answer the position, that in an action on t) 
case there is always a recital, it will be enough to stict 
that slander is without a recital.^ This, therefore, prove 
that counts in case, begin as well with, as without one 
and as it is now after verdict, against the peace must h 
rejected as surplussage, and then the declaration is pUi» 
ly case. The contradiction in the verdict can be fup- 
ported only by the court's intending that all the coutl 
are for the same trespass, but no intendment is ever Mdc 
to overturn a verdict. 

Benson in reply. The counsel for the plsuntiff contend 
that the declaration is right. That it is either caseortRt< 
pass : if not good as one, then good as the other. Bo! 
surely they ought to elect, in what suit they will proeeedj 
whether in trespass or in case. If in trespass, theawari 
is clearly abar on their own position, as it was made is* 
action for a trespass : if in case, why conclude against Ac 
peace ? A plaintiff may count as he pleases, but he C0 
not say trespass is case, and case trespass. The suit asoi 
be one or the other, and cannot be both. Strike oumP 
that relates to trespass, and then there never wasMidM 
declaration seen. If the action is for the conscqueaC8|V 
burning and the injury, it is consequential reparationdi 
is sought, and must be case. If it is for the actual \nff 
ing, it must be trespass. It must be one or the odiery4||||i 
cannot be both, at the fancy and will of the plaintifi i Jf^ 
cannot bring trespass, and call it an action in the nattUKfi 
a conspiracy. But if one thing is to be rejected in^l^ 
stance and terms, and another to be added from intMIJ^ 
xnent and supposition, a declaration may be made ojOl^ 
any thing. Trespass it cannot be, for the worda iBiM^ 
counts are conspiring and conspiracy : and caae i/LiC90l^ 
be, for they all begin and end in trespass. The-ampf^ 
tics from Kyd 207. and 2 Lord Ray. will, 004 


igainst Mr- Colden's positrons. The case stated ALBANY, 

i offered to give in evidence the award, and to prove 
s matters submitted were the same as those charged 
trespass. This was overruled, the verdict there* 
ast necessarily be set aside* 

curiam, delivered by Livingston J. This was an 
of trespass for burning the plaintiff 's bam. 
award was not considered as a bar to the present 
^ the judge at the circuit, under whose direction, 
effect, the jury found the defendants guilty, and wc 
r to say whether this direction was right or not. 
le award was certain and final, it was a bar, and 
have been so received. To me it appears to pos- 
th of these properties, 
arbitrators were to determine— 
blether the Delavans had destroyed the plaintiff's 

IhvLt retribution was to be made him for such de- 
m. If they thought the Delavans innocent, then 
fre further to decide how they were to get rid of 
intiffs claim, and be reimbursed for the expence 
it had occasioned them. All these matters were 
within the submission. 

le duties might be performed either in terms, by 
ig a certain sum to be paid by a fixed time, and 
ig releases to be mutually exacted, or by a mode 
ession, which, although not so explicit, could con- 
other meaning. When they order the suit to be 
ler prosecuted, and Purdy to pay the costs of it, 
expense of the arbitration, they hold a language 
cannot be misunderstood. If that suit can be no 
prosecuted, will it be right to permit the plaintiff 
le a decision made by judges of his own choice, 
mencing another action for the same injury ? Will 
lit permit to be done indirectly what they have or- 
hril not be done directly i Awards are more libe- 
tafffieted than formerly. This relaxation is carri- 
ich length, and very properly, that it is sufficient 
V^^ertain, according to a common intent, and 

August 1803 


iUwS^ito^'. consistent with fair presumption. It is matter of surprSiM^* 
V— li^^^*^ that courts should ever have disturbed anvards, whenfinoni' 
y. ^ the whole of them it was fairly to be collected,' diat tbe' 
Dciam. arbitrators proceeded on the matter submitted, aknd hi 
~'"""^^"" decided ever}' thing left to them. To an avidity of bul* 
ness, or an excessive jealousy of the interference of by- 
men, in matters which they deemed exclusively of {hdf ' 
own province, must be imputed their readiness to listen ttr 
objections against decisions of this kind, and to set dMr' 
aside under pretence of their being uncertain or incitti^'' 
elusive. More enlarged views at length prevaSed, Ml' '"*■ 
judges discovered a laudable solicitude to maintain fibi 
extrajudicial determinations, and thus put an end to'toAi'^ 
t^oversies, if this could be done without violating cerOfift''^ 
fundamental rules, from which it was thought unsafitt^ 
depart. If certain to a common intent, and final, cdtttt* 
will not easily be induced to depart from them, and idf 
the parties to a new litigation. That the award bcfeK - 
us has these characteristics, can hardly be doahM>^ ' 
Whoever runs, may read and understand. It eiEgMSf ^ 
states that the arbitrators proceeded on the matter sdbmi^' 
ted, and if their directions, which are intelligible tbitf 
Capacity, are pursued with good faith, their decisioa'tA"' 
be final, as well as certain ; for, nothing more is neeb-''^ 
sary to render them so, than the plaintiflF's not pitMC^ 
cuting further his suit or action, by which may be ^ 
dcrstood, his claim on this account, and paying the siii^ 
mentioned. The cases in 1. Burr. 274, and in L&tVj 
Raymond. 060. admitted of more doubt, and yd tliOie 
awards were adjudged certain and final. In my opinioni 
therefore, this award ought to have been regarded as t, 
bar, and the jury should have been directed accordifi^lfl 
On this ground, I am for a new trial, which rcnders^^^ 
unnecessarv to examine whether the verdict be contra- 
dictor)^ or not. There was also a motion in ^fCstM 
judgment, but if a new trial be granted, and the pre$tmT 
verdict set aside, this application cannot pr^vall^ and 
therefore it may be uxuiecessary to express an opioion OQ 
the grc^unds of it : but as this question was fuHy argite^ 


possibly come before us again, i am ready to say ^''^|flY* 
inew trial had not been granted, I should not v^v^-^./ 
n for arresting the judgment. Trespass, in my ^^^ 
is the proper remedy for a direct and immediate ^^*°' 
' this kind, and the present resembles that species 
more than any other. It is true, it is somewhat 
le common form, and that some expressions are 
, it not aqipertaining ,to actions of trespass, and 
ire it the appearance of an action for a conspiracy. 
- verdict, I should reject these expressions as sur- 
f rather than cause judgment to be arrested. 
J. I coincide in the opinion given, but shall state 
ns a little more at large. The defendants' mo- 
r a new trial, and in this implication is united a 
1 arrest of judgment. I shall consider only the 
L in this the great question is, whether the award 
have been received in evidence, as a bar to the 
uit. If the award in question be good and valid, ^^ . ^ ^^ 
Lttce of the submission, it may undoubtedly be ward*, 241. 
r pleaded in evidence ; as this suit is for the same 
rhich was the subject of the submission. 
Is are to be liberally construed, because they are , j^^^ ^^^ 
judges of the parties' own choosing. But they * WiU. a6tw 
e two properties. They must be certain^ ^ndfriah 
ainty, however, is judged of only according to 
intent f consistent with fair and probable pre- 
• In the present case, the bonds of submission 
that the plaintiff's bam had been burnt, and that 
istituted a suit against the defendants, and the 
le of them, for burning the same, which charge 
denied ; that the parties had agreed to discon- 
Buit, and submit all questions and controversies 
tbe destruction of the barn, and the damages, 
rbitratora* The awards suted, that a certain 
leen commenced, as aforesaid, for burning the 
L.that, for putting an end to the suit, the parties 
b^ bonds as aforesaid, submitted to the award 
^^terminiition of the arbitrators. That the arbi- 
i|U|l|^ligQQ themselves the burtbw of the sub* 


i^igiutVfoj- °^'*''®"» ^^^ having; fully examined, and duly coBsidfF 
ed the proofs and allegations of the parties, did awi(4 
thm the said vw/V ahould be no further prosecuted^ add that 
the plainti/T should pay to one of the defendants, 14 dol- 
lars 68 cents, for his costs and expences in defen^Gnglke 
suit, and attending the arbitration. 

On this statement of the substance of the 'submittbi 
and award, it appears to me, that the reasonablb vt&iA 
mon intendment, from the language of the award k/id^ 
termination of the merits of t!ie cause. The prcsLiiflMif 
of action was fully and explicitly submitted. Thcavil 
refers to the bonds of submission, and, of course, titeli^ 
bitrators had their eyes fixed on the merits of theti^ 
plaint, and the inte?it of the submission. The awaridMil 
that the proofs and aflegaiions of the parties hadbeeiliK* 
amined and considered ; of course, the merits mutt Im 
been fully heard. It then adjudged, that the Mod'tB^ 
shall be nofurtiier prosecuted^ and that the plaintiff iii j 
pay the costs. I'his award could not have intended aiD^ 
ly a cessation of the suit referred to in the bond andivirf^ 
with liberty to institute a fresh suit on the same DMM 
This would have rendered the award altogether mcte 
and absurd. The bonds had stated already, that Ac]^ 
tics had agreed to discontinue the suit. The palprfi^l^' 
tent and meaninj;; of the award was, that the chargttlm> 
plaintiff was not supported, and that the same shodUw 
no further prosecuted, and should for ever ceaser'iW 
are to consider the award as drawn up by men wfcoifili 
not skilled in technical language, and that it rcfet^1i<W' 
is bottomed upon the bonds of submission, whidrhlfl^" 
clared the a^^cement of the parties to be, that tWPli* 
existing suit should be no further prosecuted ;' tWPw 
parties, by their proofs and allegsitions, must"h«iWw 
nishedthc arbitrators, with a full discusaioA' ibAwV^; 
ledge of the merits of their controversy ; ihittWfliW^^ 
quires awards to be liberally and fkvorably^«)!|iUHlW 
to that they may answer the purpose for whiAAflf'W 
Intended ; and under these considerations^ ##%BjS 
doubt of the intent of these words, ^'thati/^9iSlUlltK0m 



19 Jiiriher prosecuted.'^ It was as if they' had said, ;^^;^^J5J' 
^fcodant shall be no further prosecuted upon the ^^^^-^^i./ 
B ; for, why say the existing suit should be no fur- ^*^^ 
rosecuted, if no more was meant than what the par- l>da*»n* 
id already agreed to do? why say that the suit shall ' 

further prosecuted, and the plaintiff pay the costs, 
;w suit may be immediately brought ? There was 
lUble use in such an award* It would not answer 
ms or intent of the submission. Such a literal lU'^ 
tation has no reason to support it. It would not be 
or favorable. It would not be judging the award 
>mmoa intent, nor rendering it consistent with pro* 
presumption. It would be contrary to the modern 
ahed rules of interpretation, and is, consequently, 

as indeed been held, that an award, declaring that % 
should be nonsuiud in an action he had broucrht^ 
t the other, was not good, because it was not put- 6 Mod ly.. 
final end to the controversy, as a nonsuit was no 
.a new action. Upon this case, it has been observejd, 
id Uiis been a new point, and res integra, it might 
een said, in analogy to the construction put on other 
that he who suffered a nonsuit, but afterwards 
It another action, nomhtally performed the award, 
mbatance was guilty of a breach. The word non- 
Bs, however, become so peculiarly appropriated, to particular idea, tliat its meaning cannot be ex- 
L But if an award be, that an action be discontinued^ Kydx4x,i, 
held to be good and final, although a discontinuance 
at* in a technical sense, bind a party from bringing 
suit. This is a case strongly bearing upon the pre- 
for, awarding that a suit shall be no further prose- 
Js eq^valent, at least, in strength and efficacy, to 
; that such suit shall be discontinued. 
aa sofsird that a suit in chancery between the parties 
w^ dismissed^ was good and final ; for, it must be Knight t. Bar- 
ilogd that it shall be dismissed and cease forever s ^"' 
k9 fnbttantjiri dismission and cesser, and not the ' s>^T3*&C. 


^JJ^lJ^JJ* So, an avard that all auiis between the partiei shd 

' is good ; for the meaning is not that the party shoid 

over and beg^n again, but- that the suit shoidd cei 

sohitely forever, so that the right itself is gone wi 

"~ remedy. The same construction was givento these 

vcii,6Mod'54,in an award, that all suits xvkich are pnatecuted I 

I.. Rm^.2[9i.^plaintiir against the defendant, shall cease. 

tefi^Mii. '^^^ ^^'J" authority I have met with, which hoU 

228. Sec aisojcontran^ interpretation, is that of Tipping v. Smith 

1024. There it was held, that an award that all ni 

of proceedings, if any, depending at law, should 

further prosecuted, was not good, because not final; 

is a very short and imperfectly reported case, at 

against the general current of authorities I have a 

to. Considering, therefore, the benignity with 

awards are of late expounded, and the sense and*;; 

of the one construction, in preference to the other, 

not permit it to have any influence upon the Othel 

sions. The cases appear to me, therefore, to be 

incidence with the reason of the thing, and to rttfjH 

interpretation I have given to the award ; that, aco 

to a common intent, the design and operation of 

final cesser of the controversy submitted. Then 

ground for a distinction, that an award which shal 

suit shall be discontinued^ or dlsmissedy or skattCi 

good, and an award which shall say a suit shatttalVi 

ther prosecuted is not good. The force and effett 

expressions are the same. 

But it was objected at the argument, thatthd awii 
not of the matter submitted. This, however; \M 
take. Both the bond and award state, that a suit ha 
instituted' for burning the bam, and the bohd'iitClb 
for putting an end to all questions s£lid contrS^r^MI 
ccrning that charge, the submission was niftdc.'''T 
an end finally to the suit concerning the bam^ #)uf f 
an end to the controversy. The award Irasi'ttiMi 
I understand it, strictly concerning the premiseik'^ 
1 l^lod. l^%, of the cases already referred to, the partiles sdMilC 
controversies between them to arbitraMi|''it|ift'tlttf' 


i,diaC altsuiU which were prosecuted b}'' the one party ^^.?^^* 
ihst the other, should cease, and it was held good. "^^^gr^^-^^ 
I nay not be unnecessary to notice anotlicr rule appli- ^^^ 
ife to awards, wtiich is, tluic they must be mutual^ ur DeUvan. 
give an advantage to one party, without an equivalent — — — 
lid other. .3ut this mutuality is notliing more, than 
t the thing awarded to be done, should be a iinul dis- ^^^^ ^^^ 
ige of all future claim by tlie party in whose favur tlie 
Bd is made, against the other, for the causes submitted, 
a other words, tliat it shall be final. Thus in Baspole's * ^' 97- ^ 
i the submission was general, of all.matters and dcmunds; 
the am-ard was, that one party should pay to the otlier 
srtain sum in consideration of a debt long due, and for 
OQSts, and said no more. The award wiis held good ; 
Ijlie one party received the money, and the otiier was 
ihaiged from tl\c debt, which was a su&cicot rccipro- 
'i So where a certain alledged trespass was subautted o « . 
iTQitrators, to arbitrate concenung the said trespass, and 
sn suits concerning the same, pending between the par- 
P^Mud the award was, tliat ttie defendants should pay a 
tain sum and certain costs in and about the suit arising • 
ns objected, that the awanl was on one side only, for it 
sctql nothing as to the other part^^ there being no relea- 
iwardedy nor words of satisfaction used : but the award 
iy apon demurrer, held good, and therefore it may now 
Mj laid down in the words of Mr. Kyd, titat an award p 
dnot contain any equivalent terms ; for a discharge to 
other party must necessarily be presumed from die pay- 
it of the sum, or the performance of tlie act. As I hold 
ivard to be good, it goes to the determination of tliis 
1^ and it will be unnecessary for me to consider the 
BT-point that was raised at the argument. I according- 
Wtclndgj, that the evidence ofliercd ought to have been 
ri^Bdj and considered as a full and eHectual bar to thie 
1^ S|pt, and that the verdict ought to be set aside for 
Kl^C^on^ and a new trial awarded, witli costs to abide 


ffvjm C, J* This is, substantially, an action by the 

Otiflflilgunsttbe defendants for consuming by fire, bis 


A^Sfxto' ^a**^* together with its contents. Tlie dedaratioD cont 

v^i^v-Tw^ ueven counts. The first, charging that the iilainti£F. b 

^^ seized and possessed of a certain close and bam, contsix 

^'*^**' certain quantities of hay, grain, &c. the defeodantsi 

— -^— ^ conspiring, did cause and procure the said bam, &c. ti 

set on fire, consumed, and destroyed. The second y 
ant from tlie first, ii^ charging, that the defieodants did i 
spire and agree to set fire to, and did cause and frea 
&c. and that the said barn, with its contents, was set oa 
and consumed in consequence thereof. The 3d, 4th,.^ 
and €th counts do not vary essentially firom the first . 
second. The seventh and last count, chafes ^Ac d^ 
ants with a conspiracy and j^ri^mcnt to f^t ou fir^ &c. i 
an actual burning and destroj'ing by tAem, iacoosequ^ 

To this declaration, the defendants pleaded the gen 
issue, and gave notice, that on the trial, they would fJLya 
evidence. Id their discharge, a certain arbitremeot, i 
award between them and the plaintiff, on the subject b 
tcr of the present suit, and a performance on tlie part of. 

On the trial, at nisi prius, the submission and award w 
read in evidence, but the judge, not supposing it suffiq 
to bar the pUintiff*s action, so directed the jury, wd d 
found a verdict for hun. 

To avoid the eflSsct of this verdict, two motions are a 
before the court. The one for a new trial, the other ill 
rest of judgment. 

In support of the first, it is contsnded,thatdie «nn!4;| 
conclusive between tlie parties, and ^that the jury ■ aaiA 
have been so instructed. 

The bond of submission states, that the fdaiiiti^. j 
conunenced a suit in trespass against the « aJd ^nthWT I 
lavan, Samuel, his son (who appears to be aniafiuil^ f^ 
Hannah, the wife of the said Mathew^ for IvWiMpSif 
entering his close, bumbg his barn, &c tha^ - Ae^M^ 
viz. the plaintifi'and Mathew, had mutually agm^tod 
continue the said sait| and to submit all questic^, dini 
and controversies, touchiw the destruction ^f .tibPHWUM 



iind the contents thereof, and the damages the said Eben- ALBANY, 
czer had sustained, to the judgment anft award of three y^^^J^^J^ 

These arbitrators in their award, after reciting the pen- 
ileiicc of the said suit, and the submission of the parties ' 
forpaetmg an-lend tliereto, award that « the said suit shall 
'• ke no further prosecuted, and tliat the plaintiff shall pay 
'•* tfaetfefendarit Mathew, Sl4, 68 cents in full for costs and 

Awards are, at the present day, construed with much 
tfjWer liberality than formerly ; and from a current of au- 1 Siik. 74, 75. 
*oAies, it appears to be now held that an award thai a f^^^^^y^ 
tmithall cease f oc betio further prosecuted, not only ar- 
loti lach suit, but also takes away the right of action on 
vlucb such suit was founded. 

" But though this be the effect, it is necessary that such 
- "^vvid have the essentials to a good one. It must, in some 
cuies, be mutual, in every case certain, and final between 
die parties. It must be also on the matter submitted . Tlie 
**«rd before us, appears to me to want many of these es- 
■ctitiak. It is one in which mutuality is essentia], and Iiath 
.^been regarded. It is not final, nor on tlie matter sul>« 
^^i^. Nothing is awarded to be performed on the part 
^ Ibthew Delavan. . Not even to give a receipt in full on 
Payment of the Si 4, 68 cents. Nor are hb hands, nor 
^'^^ of his son, tied up from bringing a suit; or suits 
'^S^inst Purdy for any injury sustained, by the charge made 
.fSaiut them, or for the suit brought against them beyond 
.^^'iti and actual expences. The liien pending suit was no 
jJ^Jtf tlie submission. It is expressly stated in the bond^ 
l^^tttf/ was, by previous s^recment between the parties, 

r* 1 A^nfdre think, the direction to the jury was right, 
l^ll tUiit die motion for a new trial must be denied. 

%fefliii}ltx>rt of tlie motion in arrest of judgment, two po» 
^^i^UilikliuAe advanced. 

1. Tiiitf the finding of the jury is repugnant and contra- 
^ttiili^; This was also made a ground on which the mo« 


A^M^^. 2. That the plaintiff has misconceived his action, an« 
^»^^v-^»-^ perhaps, blended actions of different species. 

^^^ I fall the counts in a declaration, are to be considei — 

^^^^^'" ' as constituent paits of one cause of action, there wouj 
be some foundation for the first position ; though, ev*« 
in that case, I should doubt iis vitiating^ the verdict. Bar 
the meaning of the jury is, that the defendants did cause 
the barn to be burnt by conspiracy, but did not do it with 
their own hands ; and it is not to be expected of them, 
that they shall be acquainted with principles or mazimiof 
law. But a conclusive answer is, that the counts of adck 
claration are wholly unconnected, each being considend 
Bt.296L 8. ^^ ^ distinct declaration, and if a jury give a verdict ons 
single count, where there are several, without noticing 
the others, it will be good, provided they find all tliat.ii 
in issue on that count. 

The only remaining questions are, whether the plaintiff 
has misconceived his action, or has blended distinct ^ 
cits of actions. 

0:i the argument, the counsel for the plaintiff were un^ 
willing to say whether they considered their suit in tre*- 
pi3s or in case. The last count is in trespass befoui 
doubt ; and I think there is not much doubt that the other 
six are equally so, and that the conspiracy is mere mntKf 
of inducement, or perhaps surplussage. They have two 
of the characteristics of trespass. The charges areifr 
rect without recital, and the injury complained of isil** 
ted with a contra pacein. It only remains then, to enqiuit - 
whether this action will lie, or whether case is the appiO* » 
priate remedy. Where the action is founded ontort,AiB' 
boundary between case and trespass is faintly delinfitrij ■. 
and not easily discerned. The most marked distinctio* 
is, where the injury is immediate^ and where it is cM^"-^ 
quential. There are also others (which will not, howev^ 
er, apply to all cases) as where it is accompanied irilb' 
force, and where it is not ; where it is done on the iatf^ ' 
diate possesion of the pluntiff, and where done di^' 
where, though it damage such possession* In thectf^''^ 
before us, the injury, if any, was accompanied widi ftl^ ^' 


ne on the possession of the plaintiff, and mast j^^^^* 

accompanied with an unlawful entry. It was 

; ; for whether done by the defendants, 6r by ■ 

arement, they are equally principals, and the 

qui facit per alium, facit per se, will apply to -"—""— 

or will it, in my opinion, vary the case, though 

•aofy and not the burnings should be considered 

he action. For, in that case, the burning must 

red as introduced under a per quod, which, the 

A of the six counts will warrant- 

lOt been able to meet with any authority which 

I, that trespass will not lie for a conspiracy to 

Tespass, where an actual trespass is the conse- 

; differs materially from the case of a conspira- 

t a person to be indicted or arrested ; for there 

:ntion of an intermediate agent, who cannot be 

in the guilt, is essential to the injur}\ Here 

ediate agent, if any is resorted to, is the mere 

; in the hand of the principal, and the injury is 

ly his own. ' 

t puts this question at rest, in my Opinion, is, 

rerdict, the court never will, in a case where 

so nicely drawn, enquire whether the facts will 

ispass or case. Such was the decision in Sla- aWib 35^. 

T and Stapleton, recognized in Scott v. Shep- 

[ustice Blackstone, who, while he differed in 

- Black. Re^. 
»m his brethren, declared, that after verdict, 897. 

rill not look with eagle-pyes, to spy out a va- 

trefore of opinion, the plaintiff* ought to have 
Kcording to his verdict. 

yle against Isaac Clason, and Isaac Cla- 
m agaimt Robert and John Lyle. if cros« suits be 

i were cross suits, brought under the following «m7refcrert * 
ices t •"'* J**i^ ""^** 

iw«i« • ^p ^Yifixr report 

ivst of September, 1793, Robert Lyle «nff^d {^^"i^^^at "* 
B to go to Europe as his agents and transact one shau be • 
Hat Auhiy of •£'150 per annuni, New-York SLcr.tiTcLLv. 


A^^iSoj' *^"""C"^y? besides his expences. In consequence of th 
^^^\^^^my arrangement, Robert Lyle embarked on board a vessei i 
*'^*^JjJ''~"»Claaon's, called the Hare, destined to Hamburgh, vitb i 
P*^Lyi^ * cargo of sugar and coffee. In an account made out by 
Robert Lyle against Clason, he charges his salary for six 

br for dcmamis, appeared that Clasoh either then, or at any after time, dis« 

which cannot * ■ * i • 

legally he srt^ charged Lyle from his service; and m an accomtrett* 
SgrccnTcm tt»^ * dered by him to Robert Lyle, he gives Lyle crcditferooe 
fn,fif.'Silg' year's salary' at the above rate- 

SzITcITt^rto^cT '" iVIarch 1794, at which time John Lyle was cmplw- 
to him. in ordered in the Loan-Office of the United States, Robert WM 

to icii wnacrdic , -, , * » .* « i. 'j-Ak- 

contrjct of a- in Pans, and while there, entered into a contract Wits iH 
is obligator)' oil French government, ostensibly in his own name, butll 
principal. ^^^^ £^^ ^j^^ house, and through the influence of Dd«Jf 
Swan & Co. of Paris, for ihe delivery of from ten tilt 
teen hundred tons of pot and pearl-ashes, in any p9rt y 
France^ at ^53 sterling per ton, (payable as s«onti(fc* 
livered) two-fifths in bills on Hamburgh, and AreeJiM* 
in Louis d'ors, with a licence of exportation Ibr th 

On the nineteenth of the same month, Robert lyb 
wrote to Clason an account of the contract, uiTginghhl 
to embark in it, and inclosing a more particular Wtf 
from Swan, offering Clason an interest in the contr8Ct,Bf 
the terms of which the profits were to be thus diviW* 
onc'third to Dclard, Swan & Co. and two-thirds lO'Cfc^ 
son, giving to Lyle for the use of his name, a fiftli af 4* 
whole ; one-third of which, was to be paid by Dcilft 
Swan & Co. the remaining two-thirds by Clason. R<il>6rt 
Lyle, in his letter, cautions Clason against being tt»S>» 
plicit in what he may write, for fear of capture, a«di|f 
vises him to let the language he might use, accord wV 
the appearance the business might be obliged to 988119^ 
In consequence of this letter, and without any tidMr 
information of the contract, than what the letter' if t** 
bert Lyle contained, Clason, in July 1794, dispafdiMt^ 
France, under the command of tone Gideon ^atdttiH ^ 
vessel named the Joseph, laden with pot and peail^M 


{to Gardner at the same time, the following letter of albamy, 

' ^ August itoj. 

ictions : K^^^^^j 

lapt. Gideon Gardner, ^y'*^ lid***" 

"New-York, 26th July, 1794^ duonv r.* 
Dear Sir, '^^' 

bu will pleaae to take charge of the ship Joseph, 
proceed as fast as possible to France. I shall not 
ine jou to any one porty but by all means endeavor 
^ into any porty the Jint that you can maicy which, 
m are fortunate enough in arriving safe, you will 
cdiately apply to one of our American Consuls for 
uctjions, respecting the customs of the place, and 
: make sale of your cargo to the best advantage for 
Kcount ; perhaps you will be able to mate a sale of 
}fhole to the Hepublic of France^ at a good profit, by 
kg part in brandy ; which, if so, and the brandy 
Id appear to you of a good quality, and at such a 
* as you might judge would answer to bring here, 
^iU do it ; if not, you will endeavour to sell for 
.and if times should appear favorable in England, 
irill remit the greater part of your avails to Messrs* 
f Savage & Bird, merchants in London ; and if you 
; find freight from France, or any other article that 
inswer, you may run to any port in England, and 
r load there with salt, or get freight, whichsoever 
aay jndge will be most to jny interest* However, 
impossible ^r me to give you any positive instruc* 
I from the precariousness of the times ; much will 
sd on your good judgment on your arrival. I 
liiely you may see or hear from Robert Lyle^ ifsOp 
'It give you very essential assistance in your negocia» 
four business in that country, 
*« I am. Sir, &c. 

** (Signed) ISAAC CLASON.'^ 
[ner set sail with the Joseph, and, on the 4th Sep. 
I 1794, arrived at Cherbourg. From thence, he 
ltd himself to Delard, Swan, and Co. and on the 
[>Ctober, 1794^ wrote them thus : 

326 -Cases in the supreme court 

A^tlteT. " Cherfjourg, 9th October, tt 

v^^v^^^ " Messrs. Delard, Swan, and Co. 
LykT-^CUKio, „ Gentlemen, 

^^**?"l]yft^" * " ' received yours this morning, of the 15th V 
- " maire. I wrote you yesterday, and inclosed yoi 

*^ ceipt from the garde Magazin for my cargo. Th 
^^ of my cargo I sent you in my letter, yours now 
<^ tions of receiving ; but, agreeable to your request 
^^ have it here inclosed. The pot and pearl ashes, s 
<* invoice, co8t<£l2,013 3 O <£12,0H 

*' One barrel ashes delivered more than 
^ the invoice, which I received as a bar- 
** rel of beef, average 350 wt. at 46s. i 

•* New- York currency, j£l2flSii 
" Charges herc«^paid chartqrage, 1000 
** Do. weighing, 25 


" I know of no other charges here ; if any to be p 
'^ the commission of commerce, you will please to c 
^^ them in the account. If you recollect, you to( 
*^ the foots of the^ invoice, when I was at Paris, o 
*' letter I left with you. The letter I wrote you abo 
*^ owner you mention of having found it, and say ; 
^^ inclosed in yours I received this morning, but 
*^ pect you omitted it, as it has not come to hand. 1 
^^ to forward it as soon as possible, as it nugr 
*< some alteration in my aifairs. You mention of d 
" certainty of receiving cash or bills for any article 
" America. I would thank you, in your last to i 
^^ mention whether we may place full confiden<;e ill 
** paying me in good bills, or c(ish, agreeable T< 


" You have once mentioned it, but your two ^t i 
*^ leave it doubtful in my mind. I would thai^ y 
^^ acquaint Mr. Lyle of my proceedings as nioim i 
** bills are obtained^ I am only waiting for the VSh 
" beg you to make all dispatch in your power, an 
« yours. ^Signed) GIDEON GARDNEl 


the fteventh of December following, Gnrdnrr a^!- aF-Bany, 
ed a letter to Lyle m these terms : '^^^^<-^*^ 

" Cherbourg, nh December, 1 704. ^yh^ *- ;^ iu;cm. 
* Dear Sir, cia,on v. r. & 

[ received yours of 15th Novemb«'r. I arrived here ' 

1 September, 3,nd proceeded to Paris* and ddivcrvJ thr 
rgo OK THE CONTRACT OF /»fJ ; uiid OS Mi\ C. was in 
^vancefor the whole , 1 arranged it for 1). S\ to have 
e third J agreeable to the account anpiexed-. They are 


wo-THiRDs, after delivering the cargo, and the receipt 
%icnted for payment. There was a suspension of all 
Byoients in bills or money. I returned to Paris, and, 
W a long and tedious detention, I obtaineil bills on 
laniburgh, tliough not at th€ rate agreed for. They 
eat 90 days, and the exchange 18.5 livres for 100 
arin banco ; which bills I forwardt^d by post, to Lu- 
nt and Dumas, who, I undinrstood, did your business 
ere, I was fearful you were in Knglatid by wh;it f 
id heard, or I would have sent them to you. My or- 
rs to them were, to negotiate the bills, and remit the 
Miey to B. S. & B. London, on Mr. C's. account, ex- 
pC there should l>c an appearance of war. In that ciiso 
sy are to considt you. (/ was cautioned hif Mr, C. in 
peci to that.) I presented a petition for deniuirage, ^cc. 
the amount of 0^250 sterl. which has passed 2 or 3 ofli- 
iy whicli I wish you to press hard for. I sent two bills 
diflerent posts, and wrote you. I have two-thirds of a 
jgo of prize salt on freight ; about <£'400 stcrl. freight 
8 almost half on board, and am takings in the rest ; 
U sail in a few days for New- York, and expect to rc- 
n as ftust as possible with the remainder of the contract. 
an is gone to America. Mr. C. shipped by Captain 
Armour about two hundred tons — Major Conolly is 
f supercargo. They have sold to individuals for spe- 
. I have wrote B. 8. & B. since I sent tlic bills^ aud 
o itiformed them of this Qther cargo. 



Account of my Cargo. 


Augnit 1803. 

^ _i- ^ -^^ ^ To the cost In America, 

Lfle T Cbson, as per invoice, l%fiV> 4 o 

an* ^ Iniurance, j per cent 601 o 2 

Cbsonr. R 0t ..i.^_. 

1. Lyic 
__ Interest on do- from itt 

July, to lat Decem- 
ber, at 6 per cent. 
My Commission, 
Freight, 1,200 Sterling, 

12^21 4 a 

3x5 xo 7 

2.133 * 8 

New-York Currency, 26^70 t 5 


31^00 7 'o 
1^00 3 10 

9i039 « 4 
XI 8 


jr^^ SaU9 
Of Two Hnodred and 
Sixty-one Tons and 
286 lb. at 53 poondi 
percwt. <3;84# 

The amount of BiOi I 
ccmitf«d is, M- Banco, 158 786 l« 

To thls,Ddac4 8c Co.added, « .Af^ 
proved this account ; the a wign i fs ^ 
be settled at ten, and Qason ob^ged -^ 
satisfy Lyle for two-thirds of Useai^ 
missioa, or gratification.** 

a s. ft Co." 

Paper Money ezpencea 
on the Cargo, ivaa 
2,795 Uvres, 2-3 1-3. 

In the month of March 1801, Robert LyIc airmdia 
New- York. Clason refusing to pay the two-thirds of tbe 
fifth of the emoluments arising from the contract with tk 
French Republic, in April X801, Robert brought the pie* 
sent action against him. Shortly after which, Clatfoa'tf" 
rested Robert 8c John Lyle in the cross suit, fortvctf 
considerable sum of money. 
In December 1801, both causes were, by order of eooit^ 

On the 10th March following, the attorney for Robert 
Lyle submitted the following proposition to the aUM^ 
of Clason. \ 

^^ As the suit instituted by Mr. Clason agunst tt^* 
'* Lyle, docs not include any claim for damages, aiw>| 
" from the misconduct of the latter, and moreparti^ 
'* larly, for damages like those claimed on the buainess^ 
^^ the Hare, it would be proper (lest these should be nw 
*^ the subject of a future suit, on the part of Mr. OMiih 
^^ on the ground of an objection to the report on the pit^ 
*' of Mr. Lyle) that all claims and controversies of df 
*^ nature, be included in the submission already ]Aii% 
*^ which, in a legal point of view, extends only to tho'^ 
'^ jcct matter in diflFerence, in the particular suits n^ 
^ red- (Signed) THOS. L. OGD£N, ferXjI^jJ 


thit the attorney of Clason, subjoined the follow- j^^^* 
smorandum : ^^p-v^^^y 

t is understood that the demands for damages above ^*'^5'*'*^ 
ntioncd, and all claims and demands on both sides, ^^^*f*Lyi^ * 
nded on contract, express or implied, are submits ■ 
." To this addition, the attornies of both parties 

I their signatures, and the consent of the litigants 
jclvcs were given in these words, " We agree to the 
)ve, and that all the accounts, as already exhibited^ 

II be reported on by the referees in these causes. 

" (Signed) I. CLASON, 

the 30th December, the deposition of Gardner 
aken in behalf of Clason i in which, among other 
S Gardner swore that his letter of instructions con* 
[ the only orders he had from Clason ; that Delard 
, informed him of their contract with the French go* 
lent, and he contracted with them ; that they in- 
A him the contract was in Lyle's name, he being a 
r ; that they informed him Lyle was to have a gratis 
n, but what it was, he, Gardner, never knew; think* 
od being fully assured in his own mind, that it would 
to the benefit of Clason, Lyle being his salaried 
I which consideration induced him, Gardner, to con* 
o Clason^s being accountable to Lyle for two-thirds 
said gratification, which he expected would be paid 
: salar}'' at which Lyle was retained, 
the 2Sd of June, the referees made their report in 
causes, and in each, reported in favor of the de* 

the SOth of July, the report in the cross suit by 
n, was, on motion in court, duly confirmed. Im* 
Itely after which, on the 23d of the same month, 
ft Lyle, in order to set aside the report in favor of 
Of made an affidavit, which stated, that the suit 
iitedbyhim in April 1801, was to recover money 
md received by Clason to the deponent's use ; that 
f referred, and at the meeting of the referees, the 
BCBty aa the basis of his claim, did prove, and make 


/^l^^* appear, &c. (mentioning the contract and circumstanc- 

^*— *"^^^^*^ and letters detailed in the beginning of the case) that L 
uici ' net profits on the sales made by Gardner under the ca 

^* li'yie'^' * ^''act, were £4,800 1 1 8 sterling ; that the fifth, to which t! 

■ ■ deponent was entitled, in pursuance of the engagemen 

made with him, was «£960 2 4, of which, by an Origin 
account of Delard, Swan & Co. produced to the referee 
it was proved : Delard, Swan & Co» had paid their one 
third, according ^o the agreement with Gardner ; in 
no payment was shewn, or pretended to have beenmadi 
oftlic- othertwo-thirds of the fifth, norwas there before tb 
rt ft iors, rmv set off, or counter claim established agauu' 
th(* dctfcndant ; that the deposition of Gardner (beibn 
f^liorilv stated) was shewn to the referees, andOardaei 
IiMUsdf personally examined : that he /Am testified Ac iW 
fitei*/ou.iii/ to /4/.< {it'fiurfure from America^ with the lai^ 
cargo, per the ship called the Joseph, madeacquairUedtntl 
the fx'isfcncccflhesa'uiconlract^ i\\ tjie DKrENUAirr,«M 
with the tcrmtt or price therein stipulated i that he did not 
consider himself bound by the instructions oi thei^ 
dant^ to deliver his cargo under the contract^ nor restricted 
from doing so, but at liberty to act according to his discre" 
tion ; that his motives for enquiring from Delard and Co< 
respecting the reliance to be placed on punctual paymcitj 
and also for alleging this to be done at the desire of A< 
defendant, was to hold out the idea of future shipmcilij 
and so insure the payment of what had been deliveitdj 
but not settled for \ that it was made to appear wilhiitf 
any denial, thnt the defendant had only received his tWO' 
thirds of the profit on the contract aforesaid : that the W: 
, port had, notwithstanding been made in favor of the dflioi 
d;int, under an idea that Gardner had no authority to Uai 
Clason to the pnyment of any thing to the dcpoiMBt^ 
and that Clason had altered die deposition of Gavdilll 
after it wr.s made, and before presented to the veferMtl 
without commiuncating the alteration to them. Oft-Al 
Tith of October, 1802, Clason made an affidavit to VMM 
the report in favor of the Lyles, in which he set fi»d^ Af 
iiiitituiir.g the two suits, their being referred % the v^oN 


in fevor of the respective defendants, and that they J^^^Jj^' 
duly filed, on the first day of July term last past, so V^^^v-^^^ 
udgment would, according to the usual course of the ^^^^^^'^••oh, 
, be absolute, the then term ; that the reports, ac- ^'**J^J^^j^^«* 
ig to Ills information and belief, were drawn up by - 

tncnt between the counsel in both suits, that each should 
the report in favor of his own client ; that the dcpo- 
attomey was, on the 23d of July hist, servcxl with a 
of an affidavit, accompanied with a notice of moving 
it to set aside the ropoit in favor of the deponent j 
le matters contained in the affidavit, went to the mer- 
the case, respecting which, on account of sickness 
deponent's family, and absence from New- York, tliC 
ent could not make any explanations to liis counsel ; 
! acquiesced in the report against himself, from a con- 
I nothing could be obtained from Lyic, and therefore 
»rt could o|3eratc more favorably to the interest of 
Pendant ; that tiie known inability of Lylc to pay, 
le reason why the referees were less particular in ex- 
g the deponent's claims against him, than they other- 
ould hare been, deeming it unimportant ; that tiic 
ports were made, and intended by the referees as seU 
*>€ne4igainst the other ^ and to this end, they inscruct- 
nael to prepare ttiem accordingly ; that, among otiier 
s against Lyk*, nhe deponent gave in evidence, an 
t rendered by Lyle, in which ha acknowledged liav- 
liis hands a balance of 24i',246 livres in assignats, 
ting) at the then rate of exchange, to S-l->477, and 
Ugaats were then never kept on hand, but always 
ted into property, to avoid depreciation ; that since 
ount so rendered, the deponent never liad any fur- 
oney or mercantile transactions with the Lyles, and 
r|e neither accounted for, nor made any set-off a* 
khe.said assignats, but the same were totally unac- 
1 for ; that the deponent, as soon as the sickness of 
ily permitted, consulted respecting mea&ures to bo 
ibout opposing tlie motion, to set aside tlie report in 
Vy but there was not time enough left in the term to 
KtMtiMlt.for the application of Lyle to set aside the 


ALBANY, report ill favor of the defendant, he should never Iiaveag 

v^^^^X;^ jjlied to set aside that in favor of Lylc, for the insohenc 

^y'*^„^'*""*ot' r.yie made it of no coixsequence. 

Clawn V K. & q^ho notice of motion with which this affidavit was accon 
^ panicd, wasrejwated on the 7th of January, 1803. 

To oppose this, Robert Lyle made, on the 14th of JaoL 
ary, 1S03, an affidavit, stating, that he, and liis brotl^ 
John, the other defendant, acted, in tlie year 17»5, i 
lurciits for Cliison, in which capacity they had received vi 
rious large sums of money, the whole of which had beci 
foithftilly accounted for ; that the suit against Clason wu 
for mf>ney due individually to the defendant, on another 
concern, and for damages for libellous letters and slanden 
publish(5d against him by Chtson; that he and hisbrGlber 
were arrested, as before mentioned, and the two causB 
referred ; that in the suit against the deponent and his bro- 
ther, (the declaration on which was for goods sold with tb 
tisuai money counts only) Clason produced an accooDt 
with charges, against the deponent and liis brother, fi* 
broach of onlers and neglect of duty, to a very hige 
amount; that on asking for some evidence, by which J^ 
might appear, those charges were included in the aubffl*- 
•ion, the agreement of the 10th March, 1802, wasproitt* 
ced ; thai the same was intended merely to extend thepow«l* 
of the referees to claims of the nature of those mentionedili 
and warranted by, the declarations to which the dcponOi^ 
had confined himself; that his, and his brother's faithfUt* 
gcncv,anddue accounting for all sums of money,wereW 
ly proved ; that in the cross-suit against the deponenttf 
his brother, the referees made their report on a coBtfr 
tion nothing was due to Clason, and not from any itgifl 
to the deponent's insolvency or circumstances, as he irSi 
by the referees themselves, personally informed ; thai tf^ 
deponent proved, to the satisfaction of the referees, 0* 
the value of the assignats mentioned in Clason's ^^!^ 
was, at the time he specrfed^ only JL27% 2 9, andii^ SM^I 
that they were not then usually converted into pw^^* 
l«ut held by many persons in hopes of their risii^f.j 
that ihe said assignats were not onlif not made use i 


ent^ or kept in his hands, but had, from tick time ALBANY, 


OF Bordeaux, by whom they were converted ciasonv. r.* 


^ith Gardner, when acting as Clason's agent ; 
SO far from the acquiescence of Clason in the report 
It him, for the reasons he had assig^ned, he had, after 

made, purchased protested bills, on which the do- 
it's name was as an indorsor, and had commenced 
igainst the deponent upon them, in order, as he be- 
!, to create a set-off against the verdict the deponent 
: ultimately obtain. 

er some struggle by Hamilton on the part of Lylc, 
criminate the two suits, the court was pleased to or- 
le arguments to set aside the several reports to 
on together. 

milton for Lylc. After stating the circumstances, 
^mmenting on them, and the affidavits of Chison and 
ler, observed, that it was very singular Gardner, 
ut any knowledge of the contract of Dclard, Swan 
. with the French Republic, or of Lyle*s intent, 
i deliver exactly under that contract, and write a 
acknowledging tlie very interest Lyle claimed under 
d that Clason should pay him what he was thus en- 
to. Gardner, without knowing the contract, gocfl 
t; he asks Delard & Co. if the French government 
c punctual in paying, and thisy he adds, Clason de- 
him to enquire about. Clason too, ratifies the en- 
acnt of Delard & Co. and Gardner, with Lyle, by 
dng the account with Delard & Co. and receiving 
• that account the two-thirds, by the very express 

of it, charged with the payment of the two-thirds 
tWb fifth. To argue on the assertions of Gardner, 
(be really superfluous. The referees must have 
lit Gardner had no right to bind Clason. This idea 
jrly repugnant to every principle of law. He that 
Its another with general powers, must abide the re- 
f hia agent^a «Qjidttct. Therefore^ though the re- 

as a set-on to tne otner, ana co enecc mis uujccc, 

Were desired to frame the reports in such a ma 

might best obtain the desired end. The various i 

pear in the aiEdavits before the court ; but it is ma 

state, that the party who first made the applicatioi 

turb these reports, has not presented any origins 

mcnt, on which his suit is founded. Delard, Swa 

made a contract with the French government, fc 

tain quantity of pot and pearl-ashes : as these arti 

ter into the composition of gunpowder, it was D( 

to have a neutral name in the business. It is dil 

saj', \* liat ought to be the true relative compensa 

the protection a neutral character would afford ; 1 

to be absLTved, that Delard & Co. were the real v 

ors ; Lylc a mere nominis umbra : for this, howe 

says he is to have one full fifth, one-third of i 

paid by Delard, Swan & Co. the other two-thirds 

son. These terms, it is alleged, were stipulate 

formal contract, yet this contract, which Lylc mu 

had, is never produced ; on the contrary, ins 

relying upon it, he rests on a letter receive( 

Gardner. In addition to the inference to be dran 

this fact, it appears, that at the very time when tl 

tpnfh*d ronfrarf wn« madr*. T.vle w:w in Fiimne. 


lent will induce them to do it in one of the now ALBANY. 
S will have equal force in the other ; for if the re- ^^!1S!^^^^ 
have been mistaken in their endeavors to create ^^'^ ^- ^'^^'^ 
I sct-ofFs, both reports will be set aside ; or, on the Clason v. R.& 
hand, if they have acted properly, both will be con- ^^ 

; for the court will not, unnecessarily, do away 
he referees have done. In making their determi- 

they considered that tlie power to sell, and the 
to give away profits, were two things : to this lat- 

cannot be contended, that the authority .of an 
>r a factor can extend. There is no question about 
It's rigl^t over the property passed to him, but he 
enter into collateral engagements : he may sell and 
t a title ; but not give away the property. If he 
n any degree, do thiR, he may go on indefinitely) 
ke away with the whole. He may go on making 
ts ruinous to Ms cniployer, and contrary to the 
:8 of his delegation. Under a power to sell, if he 
be allowed e\ en to exchange, can he be authorized 
I difference? The boundary of his power to bind, 
e connected with that of his authority to sell ; it 
: confined to that, and will not warrant him to give 
refits I to pay another sum of money on another 
: than that of the sale. The point turns on whether 
r had a competent authority to bind Clason, to 
Mhirds of a fifth of the profits. It m as derived 
e letter of instructions. That letter delegates only 
al power. From the exercise of such a power, the 
mnot be supported. That a factor may sell by a 

and give a commission, if customary, is no^ con- 
but it is contested, that a factor or agent, having 
leneral authority to sell, can give away a substan- 
I of the merchandize when it is sold ; that he can 
liere is not a dictum in the books. It would be, in 
liable him to dispose of a portion of the property he 
itcdto vend. It would give rise to the most se- 
iBBcquences ; a fraudulent collusion would com* 
teatroy the interests of the principal, by enabling 
a- adc regular in its form, the precise mo(U 


.^^utt itoj. ®^ which could not be easily foreseen. The intention 

■^^^-^-v-^^^ Clason's agent must be taken into consideration, and 

'^ ana "' motives on which he proceeded, permitted to explain I 

^**l "lvI^ ^ J^c meant to bind his principal. Gardner never ki 

■ — what the gratification to be paid Lylc actually was. T 

inducement he had to consent to any, was, that he decn 

the amount immaterial ; for as Lyle was in the ser\'ia 

Clason, at a fixed salary, Gardner naturally conclw 

all Lyle's labour would accrue to Clason. On the prin 

pies of natural justice, the demand cannot be substani 

ted. He lends his name to Delard, it being necessary 

make use of a neuter. The douceur must certainly 

according to the situation of the party. The letter 

Clason, containing the terms of the contract, docsi 

state the sum to be paid. It is obvious, therefore, tl 

this was never intended. It was considered as too I 

fling to specify. 

Gardner knew, when he left America, that Lylc i 
a salaried agent. This is not a case of good faith betv& 
an agent, and a person totally a stranger, and thercfo 
the principal called on to pay ; but we are called upon,' 
the strength of a little memorandum touched into the lb 
of an account. It is not to be forgotten that the refere 
were merchants, and well knew the course of trade ii 
business, when the transactions took place, as well aid 
rights of an agent at a fixed annual allowance. Thechi 
too, goes by the express name of a gratification ; and wl 
ever heard of a partnership share (which this in tuX} 
t\ er being known by the appellation of a gratificadof 
When was .i600 sterling ever considered as a gratiici 
tion for a person at a salary of <£'150 per anniun, Nei 
York currency ? The referees might, therefore, have JM 
ly ejected the claim. No inference can be diawn £kn 
Gardner's letter, speaking of a contract : he mig^h^ 
sailed on anotlier. But it was not the mere matter of 4 
contract that was refen ed ; subsequent matters were tjjhl 
ed, not included in the two causes : this was Igr a|^ 
mentof the parties, and how can the court say th^ P 
claim on (he cputra^t has not been ;^o\Ted, ifhsji k BV* 


k»cbcen counterbalanced by damages and misconduct in AI.BANY, 
Ac matter of the Hare ? This, therefore, being an appHca- W?!Uf5' 
tfon to the equitable jurisdiction of the court, they will so ^'^^^^^*'^^* 
Aould and blend the two causes as will but answer the Cbson ▼. R. & 
ends of justice ; and, if in the suit by Lylc, the report he " 

let aside, the court will do it on terms, and vacate the rc- 
|N>rt in that against him. 

Clason declares he never heard what Lyle's compensa- 
ion was, till after the suit was brought. But can tiie 
ourt say, this particular claim ought not to be disallow- 
d? After the rules to refer, other matters were added 
ad blended ; all contracts, " express or implied^^ were 
nbmittcd. It cannot be said, there were not other claims 
» extinguish this demand of two-thirds of the fifth. It 
light have been admitted, and liquidated by a counter 
Um. Referees and arbitrators may so coniiidcr the sub- 
%t matter before them, as will best answer the ends of 
istice : they may take into view matters both of law and 
Ffiict; perform the offices of judges 'and jurors, and 
re entitled to found their decision either on law, or prin- 
iples of general equity. The whole of this was delcga- 
5d to them, and they have determined, on a'view of all 
latters in controversy blended together in one mass, all 
tc objects in these two causes, even in that against both 
te Ljles, as consolidated befc^re them. Whether they 
»c been perfectly accurate in thus beholding them, is 
Unaterial, if they did so consider them, have acted 
ider that idea, and have attained the real ends of jus- 
dty though perhaps by extraordinary means. It was evi- 
ttdy the wish of the parties, to set all controversies be- 
Mn them fully at rest, and this has been accomplished, 
kc court, therefore, will never say, that one report shall 
confirmed, and the other set aside. The consideration 
die report in the suit by Clason, might have influenced 
die making up that^ in the action against him. That 
did abf is evident, because the reports were intended 
mutual aet-ofTs. Whether this could be supported on 
jet lual reasoning, had been doubted : but. the spirit of 


aI^Jl^v *^ ^^'^ in 8 D. & E.* might perhaps fally warrant 
*'"^^*v-^^ conduct of the referees. It may be a question also, h 
aiid °*f2ir (jrardner could give such an interest, as might, pi 
^* L i.yicf ' ^ '^^P^* create a partnership between Lyle and Clasom 
■ Ilarison and Hamilton in reply. If, in cases of full a 

llcwcr^&^7''^''^ '*"^^^^'8^^^^^ this court will interpos 

S D. & K 69 when a verdict has been rendered on an evident mistal 

cd. the case ni- of the Jaw, they certamlv will do so in the case of a repa 

it secmsiurUity mado bv referccs, however appointed. That this reasoi 

IIlfM^n^"* ^^-ing applies to the suit of Lyle v. Clason is manifest, and 

will, therefore, be sent for further examination. With n 

spect to the contract made between Lyle, and Gardnei 

the agent of Clason, it is for the court to determine whe 

ther it be obligatory or not. The affidavits on the partQ 

Clason, do not state that he was ignorant of the contnc 

with the French government, but of the claim of Lyle 

It appears from Lyle's deposition, and is not controvertec 

that in March, 1794, letters were written by Lyle am 

Swan, informing Clason of the contract ; ofLyle's rijM 

nnd that he (Clason) might share, if. he thought pit^ 

The leitters were produced, and that they were received 

Clason's conscience would not let him negative. Then 

was a stipulation to compensate,withashare of the acta 

profits, for the use of the neutral name of Lyle ; whendMi 

profits were ascertained, the right of Lyle attached. The» 

is, to be sure, no express recognition by Clason of the M 

tract, but in the Sept. following, the date of Lyie'a ktW 

Gardner arrives in France with exactly such a cai^ laA 

contract demanded. Are there not circumstances cnM^ 

to ^ink he went there for the purpose of acting undtfil 

But even allowing there are not, does not the letter of io 

structions substitute Gardner as owner of the pn^ietlf k 

carried, and invest him with all Clason's power oycrii 

He is to exercise his judgment ; do his best ; sdl A 

French brandy ; sell to the French government, &c» | k 

had therefore aright to make any contract under fhevolll 

of the letter. He arrives in France with a powerit A 

pose; he finds Delard possessed of a contract, ia tk 

napie of Lyle, under which, the power to dispose^asjrtie 


JCil with great advantage. He does exercise it, re- ALBANY* 
the emolument, settles with Dclard & Co. but rcfu- ^ j*^'-^'-' 
Jo so with us. The inquiry then is, had Gardner a ^>'^* Ind***""' 
, and has he evcrcised it ? That he had, and has, no Clason v.R- & 
can be entertiiined ; and as little, that it was under ' 
itract ; for the affidavit subsequently made by Gard- 
oes not deny, but admits the fact. He says, how- 
hat he kn^w not what the gratificatton was : this is * 
rdinary : lie seems to have forgotten his own letter 
verj' few months ; and though that does not specify 
let sum, the two-thirds foi" which he mentions Clason 
tie, it affords an internal evidence that he did know it, 
tronger than his own assertion to the contrary. Gard- 
itter of the 7th December^ 1794, particularizes two- 
and gives an account of the sales. Allowing, how- 
rardndr not to be apprized of the exact sum, as Lyle*s 
pras ascertained and perfected under the contract 
:h Gardner consented, acceding to the payment of 
irds b^ Clason, it follows Clason must be bound, 
lie is, that he who places confidence, shall suffer by 
ise of that confidence ; Clason, therefore, and not 
is to be the loser by Gardner's actions. It is extra- 
■y that CJason should have remained ignorant of the 
t of Lyle's claim, four years after Gardner's return 
ddering an account of his transactions. If Gardner 
laving an authority to bind Clason, did &o, and Cla- 
IS received the benefit of that transaction, Lyic's 
I perfect. The assertion of his being a salaried 
does not afiect the claim. H'ls time of service e\- 
n September. Beyond that, Clason himself, allows 
iry, and Gardner's letter is dated in December, 
sr himself acknowledges Lyle's right, by telling 
to pay one-third of it. Had it been otherwibe, 
Mr would liave said, you arc not to pay the third of 
h to Lyle, but to Clason, for whose benefit Lyic \^ 
> There is a farther proof in the letter to Lyle. 
Hf there says, " Mr. Clason is to settle witht/aii for 
•thirds." Here then is a clear established right in 
» teewe frocnTlason, two-thirds of the fifth of the 


jjjj^jj^' whole profits. If so, the arbitrators have been guiltj 
V.^-'v*^'' mistiikc, in point of law, in considering Gardner u 
^^^^IJ'^'thorized to bind Clason, and this tlie court will asuii 
Tl^^^* right. There is also another ground on nhich 
___ have clearly en-ed ; for if they have blended the rc] 
in the two causes, or made one enter into the conipoi 
of the other, they are uianifestly wrong. Tl»ere is m 
dence of any tiling against Lyie's right, but the dem 
in the cause against him and his brother. Though 
causes were referred, tlie referees have not any rigl 
blend matter extraneous to the respective suits. Rc 
Lyle*s action is for his own separate account. Th 
Clason against Robert and John Lyle, is against the | 
uership, and the one cannot lie set oiT against the ol 
being in difleretit rici^hts. This is very n'ide from the 
of a surviving partner, where die rights and duties €< 
in one person. The agreement does not alter this» I 
was merely to allow of such matters as were admii 
against the same parties, tliough not specifically proco 
ior ; to settle all disputes for which actions might he i 
tuted against the re^pecrtive defendants ; to allow ci( 
niagcs arising from breach of contracts, express or imp 
by the Lyles, to be settled under the reference of the 
against tliem, in which counts were used not applicail 
actions for damages, but never to permit one suit to h 
oil' against die odier, or make Robert Lyle give up tht 
nefit of his claim against Clason. They did not pven 
it into consideration, as they considered it not due :.« 
port, therefore, in favor of Robert and John LyJc, 
well be suficrcd to remain, and that in favor of ClifU^ 
set aside ; for the amount of the profits claimed froft 
not being taken into consideration in the accouptjigj 
i-cferees, now remain unsettled. If, thcreforcj wit| 
eluding this demand, Clason has not any dem^od 
Robert and John Lyle, the report does not prevent j[ 
from having a demand against Clason. Besi(lc5| itv 
dent die contract must have been known to C^spn^ 
Gardner, by the lattcr's expressing an intentioQ oTM 
ing wiUi the residue. The not mentioning ^ in"t&e 1b 


tractions, was to avoid the risk of capture and con- aI.baK^\ 
ation ; fates that were sure to attend a cargo ot a con- ^ ^-~-m^' 
id natune, going n»der an avowed contract with the ^^*^;^J***^ 
h government. The receipt by Clason, of the pro-Q**^^*** 
rftlie cargo, is a ratification of every contract under ^ 

it was made, and no disavowal of Grardner's authori- 
be permitted. Clason enjoys the benefit, and if any 
!s du accompany the agreement, it is to be taken 
»nere. The allowance of tlie account by Delardj 
k Co. is conclusive on the terms, 
fis, C.J. delivered the judgment of the court. 
»e actions were referred under rules of court to 
referees, who have reported in each against the re« 
7t plaintifis, declaring nothing due on either side, 
•ns are now made to set aside the several awards, 
he first cause, in which Lyle is plaintiff, the appli- 
is founded on a presumption that the referees have 
aittaken in point of law. That they have either 
id a contract entered into by the defendant's ship* 
r and x:onsignee, as not obligatory on his principal^ 
e set off the balances found for the plaintiffs^ in the 
tive causes against each other, 
this the defendant answers, that he was not bound 
engagement of his ship-master, who was sdso his 
nee^ and that if the referees have made such off- 
key were justified on principles of law, and by an 
nent entered into between the respective attomies* 
far as the facts can be collected from affidavits and 
lents furnished the court, they are these : That the 
being engaged in bvsines in France, were charged 
Dme commercial concerns of Clason, on which he 
m balance of account, and on which they deny any 
o be due. That Robert Lyle, while in France, was 
ftd by the house of Delard, Swan & Co. there es- 
led in business to negotiate a contract, for the sup« 
' certain quantities of pot and pearl-ashes to the 
li government, which he effected, and for which they 
o allow Jiim one-fifth of the profits. That the Com- 
as wdl tt Robert Lyle, wrote to Mr. Clason ia 


^^J*^*^»^ March 1794, acquainting him with their contract, ^ 

V-i^-v'^fe^ proposing to hioi to maice shipments thereon. Thsu 

^ aod ' September, a vessel called the Joseph, belonging to Ci 

^^*^|^y'^* plaintiff, arrived in France loaded with ashes, consigni 

■■■ . t . , to Gideon' Gardner, the master, who had general instroi 

tions to sell to the government, or to individuals, at li 

election. That Gardner, after making enquiries as tod 

governments punctuality, agrees with Delard, Swaa I 

Co, to turn in his cargo under their contract, which issi 

cordingly done, and neats a profit of .i'GfSOO 118 steriisg 

whereof Clason received two-thirds in consideration ( 

his having made the advances, and the house of Dehn 

Swan & Co. one-third. On the adjustment of this 4C 

count, it appears that the Company and Clason were t 

account to Robert Lyle for his one-fiftb, according to th 

proportions of profits by them respectively received. 

Captain Gardner's powers being discretionary, hevs 

perfectly justifiable in making the disposition he did of dv 

cargo entrusted to him, and even if he was not, it doe 

not appear that Mr. Clason ever denied that transactioi 

his sanction, but th'at on the contrary, he has received fa) 

remittances to Bird, Savage & Bird, of London, thcpo 

ceeds of the cargo, including his proportion of theprO' 

fits. • Under these circumstances, there can be no d^ 

that Captain Gardner, having turned in his cargo vi4V 

the contract, bound Mr« Clason to the fulfilmentjof dV 

t«rms of that contract ; and the latter, having recehe^ 

the full two-thirds of the profits of the advepture, mdci 

. the stipuhition made by his agent, that he should afngMPd 

to Lyle for two-thirds of his douceur, or whgtevcf iqjfM 

may be called, (for names will not alter the csseiAti^ f/k 

lily of the thing) he is bound to perform such stiputaijiM 

If, therefore, the referees have not admitted tl^sdtt| 

thoy have erred as to the law, and the award Oug^t<)||| 

set aside. . .nfcta 

If, on the contrary, they hav« admitted i%t llWiM 

must have allowed a balance fouhd due to ClMOp r wAl 

other suit, as a set-off against it. ThiSidlsOi i» lApfPVM 

ior the suits are not between the svne partiea> aniAt 


ahip funds should have been first appropriated to ALBANY, 
:liarge of the partnership debts. The agreement ^^ --^^ 
1 the attomies, does not authorize such set-oft'. ^^'^ l['ua***°"* 

object, is the admission of certain demands which Ciason v. a. & 
lot lall within any of the founts m the respective ^«____^ 
ions, in order to avoid further litigation, 
award therefore, in each suit, ought, in my opi- 
> be set aside. The one against Clason, for the 

above-mentioned, and the one in which he is 
i because there is a probability that the referees 
balance there due' to him, which he would othcr- 
« the benefit of. The judgment of the court is, 
h awards be set aside* 

M. Brett and Jolm Bunii against Matliew 


, plaintiffs had in the last term recovered a verdict ^^^ laintiff 

the defendant, who on making a case, had obtain- ^vc notice of 

, .- ,. . , motion to set 

isual certificate to stay proceedings ; to set aside ari^ « judge's 

the plaintiffs gave notice of a motion, but not at- stayproccecU 

♦^ n..».i4i. ;♦ injji s,i»nd do not 

to argue it, atiendtoai^c, 

18 for tlie defendant, on the last day of term, ap- J^^ut^^^^ow^ 
r costs, which the court was pleased to order. costs, in no 

C2SC will tlw 

. It was during this term intimated by the bcjich, court hear an 
;y would not hear any argument to set aside a ^faSk a* 
certificate to stay proceedings on a case made. jatf Jo"^^" 

proceedings on 

Rathbonc agaiust Blackford. :emb. "^ "' 

\ service of a notice in this cause, was stated in 
avit to have been on a person in the office of the service on a 

pcr^on, in an 
^m attorney*!* of- 

uriam. It is not sufficient. There does not ap-^«;";i;*;^^»*»^^ 
be any relation between the party served and the relation be- 

•^ / * * ' , twven liim and 

^. The notice might have been given to a mere the person sen. 

'.' A conne2^ion ought therefore to have been 

ao that the court migh be convinced of a privity 

i the party to whom the notice is deKvered, and 

mcy qh wkom it is meant to take effect.* • sec Ante 73. 


Aucuit 1803'^ Parkman against Sherman. 

IN this cause the court determined, that when bod) 
tice and affidavit are wrong titled by reversing the par 

and putting the defendant in the place of the plaintiff 

telidSlS!^ error is fatal ; and this case was distinguished from t 

^^J^^ 'I;;, ^f Ky«" against Hillyer,* because there, though the \ 

Kcad of ju^si-c- ties were reversed in the title of the notice, yet in t 

' ^'** 'of the affidavit they were rightly named : so that, in 

^wltC XI2 • ** • 

pendent of the object of t}ic notice in that suit, there 1 
a proper tide to rectify the mbtake, but in this, when 
ever)' paper the action was,* as if by the defendant agai 
the plaintiff, there was not any thing by which the a 
take could be cleared up, and the notice might therefi 
be in a cross-suit, where the parties actually were . 

John Milward against Richard S. Halbtt. 

to"7afc'^cie THE plaintiff had recovered a' verdict against dice 

Slued Sf the"" ^^'"^'"^t, on whose part a case had been made, and aco 

cafe: •crved, or served on the attorney of the plaintiff. Many inaccui 

and page in cies being Observed m it, a full statement was drawn 

posed to a- ^"^ on the part of the plaintiff, and served on the defendaa 

^irty lerv^ attorney, who, on receipt of it, objected to the infomudi 

^awwMac. ^^ ^^^^ making a new case. The usual.tim€ for object! 

to the amendments having elapsed, the attorney of. I 

plaintiff gave notice of argument, set the cause dowai 

hearing, and served copies of the cases he had drami 

Caincs on an affidavit, to which was annexed a co|f 

the altered case, made on the part of the plaintiff| airfl! 

a copy of the service of notice, moved to bring on Aflif 

giiment, or that the plaintiff have leave to enter upj 


Benson contra resisted the application, contendiQg.(^ 
the case now before the court was a new, and not Mi 
mended case. That the rule allowing amendmoBli ^\ 
proposed, ^d not authorize making an entire 80VJMI 
like that on which it was wished to proceed 


inca in rcpiv, hoped the court would not hearken to a ^ALBANY, 

. . ' . Auguit i8oi« 

action which really did not seem to have any solidity. ' 
T case differing from that first senred, was in fact an 
idj or athended case* The objection resolved itself 
his, that every amendment must be written on the — ^— — 
piece of paper which held the case ser\'ed« If so^ 
lines, narrow margins, and great omissions, would 
r every case superior to amendment, and totally ex* 
all, that the party who made it, might please to re-' 
It was however conceived, every variation noticed, 
h on a separate piece of paper, was as much an 
Iment, as if the diversity had been marked on the 
containing the case originally made, 
curiam. Every amendment must be on the case 
or refer to the line and page in which it is proposed 
inserted. This, not because it is less an amend* 
irhen written en a separate piece of paper, but in 
to inform the judge before "iv horn the cause was tried, 
to direct his attention, in case the facts should bo 
ed, and not rtcUit c him to the necessity of reading 
nd comparing: two cases : the plaintiff can take no- 
}y his motion. 

1 and Thomson, ^£^a/w5'Mhc Columbian Insiir-?*^^"'"' 
ance Company of ^ew-iork. sion diicio« a 

mot moved for a second commission in this cause, to which Ithe 
xamine the same wimesses to a particular fact dis- SS? diXctS* & 
, md from which, as the answers then stood, it ^^^^ ^o*"- 

' ^ ' ' muiion may 

be supposed, a deviation had been made, to which ^*"« ^^ ^^'*' 

. ^ • . . ,. , miiie M to dm 

he former investigation was not directed. fact, 

ion contra. It is now too late ; there was never 
ance of a second commission to examme the same 
les. The answer shows the defence that arises on 
iim, ^d this is an attempt to do it away. 
not in reply. The application may be novel, but it 
DMreatonable, Suppose the witness had been ex* 
I m court, and had testified to a certain &ct, which, 
rithout soy explanation, would have one effect, if 
led, another, might not a question be asked to ex- 



Thoniion v. 

a^^uS^Sm* P'^^"* ^ especially when it cornea out collaterally. He: 
' the deviation was not the object of enquiry. The que 
tion M^as simply to and frem what places were you bourn 

wmce CoBH '^^^^^ ™*y ^^ ^" apparent, though not a real deviatiot 
pany. for there might be a custom to go that rout. 

' Percurianu Take your commission. The aits wesb 

ing directed to another point, may be explained by an ii 
terrogatory to the one which it discloses ; for it may m 
sigif very sufficient reasons for the iter adopted. Th 
commission, however, must be at the peril of the part^ 

£x parte Caskaden. 
No interwt ai- ^he court determined, that a prisoner will be entided to 
ISS^^^li'^ri- relief under the insolvent law, if the amount with whicli 
•oner in cxecu- he Stands charc^ed be under that limited by the acttthoadi 

tion, to impede . , , , , ** _ . /. . . ^ , . 

his disrhar;:e it would be above the sum specined, if the mtercstwal 
a^v^tiaw/"' ^ded; for in the computation, interest on judgmcati 
against him, is not to be computed. | 












Jonah Hopkins against Thomas Beedle. 

X HIS was an action for words spoken of the plain- kew-Vork 
ff in the discharge of his duty as an overseer of highways ^Nov. 1803. 
^ the county of Cayuga. 

Xn the 1st count, the charge was for saying, ^^ You have 
sworn to a lie, and I will prove it*" 
In the 2d, " You have sworn to a lie." ^4^^?" ^ 

^ ' , maintainable 

In the 3d, *^ You have perjured yourself aa one of the ^^^ raying one 
orerseers of the town of Washington, and I can prove ter.that he i« * 

5^ » pcrinrcd. In an 

**• action for 

"Xhe jury having found for the phuntiff, a motion was JJ*^mc*couou 
'^ made by the defendsnt, for an arrest of judgment, on *^/JJ*^*}^*^' 

ft fbllowing grounds : then not, and 

lit. For that the words in the first and second counts in be ^TentTu^ 
fe said declaration, in the above cause aUegcd to have J^'JSjBuVhSd 
^cnspokenby the defendant, of the plaintiff, are not in ^^j'^^JjJJff 
^astlves actionable, and no jBpeci:^ damages arc al- «»n pAyment ^ 

3 A 


^ Nw.^te^*^ Icged in the said counts to have been sustained hy t : 
V.**^^;^^ plaintiff. 

% "" 2d. For that It is not alleged, in the said first and st 

cond counts in the said declaration, that the lie, declare c 

coMs, hare had ^Y the defendant to have been sworn to by the plaintl^ 
• ▼enirtdcno-j^jjj been sworn to, or any oaih had been taken by the 
plaintiff, touching the same, in any court of justice, or 
before any person having competent authorit}" to adminis- 
ter an oath or oaths by the laws of this State. 

Sd. That the charge of pcrjun', alleged in the third 
count, to have been imputed by the defendant to the 
plaintiff, cannot, by the laws of this state, amount to a 
charge of perjury, the same necessarily being a charge of 
violating the promissory oath taken by the plaintiff, as one 
of the overseers of highways of the town of Washington, 
in the county of Cayuga aforesaid. 

4th. For that the verdict in the above cause is generali 
and that the said first and second counts being obviously 
vltious, judgment cannot be rendered for the said plain- 
tiff, and for these causes, and for others apparent on the 
said declaration, the defendant insists the judgmtn' 
ought to ho arrested. 

The case being submitted without argument, theopto- 
ion of the court was now delivered by 

Kent, J. This is a motion in arrest of judgment T^ 
declaration states, that the plaintiff Mas an overseer » 
liicrhwfiys in Cayuga county, and that the defendant ^ 
to him in tlic hearing of divers people, 

1st. You have sworn to a lie, and I will prove it. 

2d. You have sworn to a lie. 

sd. You have periurod yourself, as one of tlie commiarfoo* 
crs of higliwavs of the town of VVasliington, in the coun^ 
aforesaid, and I can prove it. 

The verdict was a 'general one for the plaintiff. It is ur- 
ged, on the part of the defendant, that the words in tl» 
first and second counts are not actionable, and that kiBtf^ 
alleged that any oath was taken, by the planitiff, befiaroanjr 
I^crson competent to administer it. It is further urged, iW 
ilie cliarge in the thinl count robte* only to the prowi»<'V 


ath of office, for which au indictment for pcriurv will NEW-YORK, 

We are of opinion, that the objection to the first and se- Hopkim 
Olid counts, is well taken, Swearinir to a lie does not Bcedic. 

vtctssariljf imply that the party has, in judgment of Jaw, "" 

leijnred himself. It amy mean, that he has sworn to a 

Silshood, without being conscious at the time that it was 

ifalshood. Actionable words, are those that con vcv the 

charge of perjury in a clear unequivocal manncry and 

which admit of no uncertainty. The cliargo is dei'ective 

in not stating any court, or competent otlicer, before whom 

the plaintift' swore. It may mean extrajudicial swearing, Com. Di. tie. 

and therefore it is held that a ciiarjre that one is foresworn. *^^*°? °" ^^ 

, • ' case for dcfiu 

IS not actionable ; because it shall not be intended in a case mation, F. j. 
w^here perjury maj' be committed. On the other hand, a 
charge that one is perjuredy is actionable, for that implies x RoU. Abr. 
the direct legal crime. ^^ °' ^* 

With resjiect to the third count, we are of opinion, that 
t is sufficient to sustain an action ; but as the verdict is gc- 
lerti, tlie judgment must be arrested ; the plaintilV, how- 
Jver, on application, might have beea entitled to a venire 
fe novo, on jiaymcnt of costs.* 

Christoplier Miller against John R. Livingston. 

THIS was an action of assumpsit brought by the plain- ^iSSS^ar**"! 
it as the factor of the defendant, for tlie amount of his lowed toacap- 

. . ... . r 1 1 tain on his sales 

ommissions on sellmg a quantity of leather. and invest- 

Thc cause was tried before his Honor Justice Kent, not entiti"to 
tthe New- York Circuit in March 1801, when the foUow- hc'"ca^esr^o 
ig facts were given in evidence. fn^^^to^ t^'^^r 

That in January 1795, the plaintiff sailed, in the cha- */ac\ *»'^*^ 
tcter of master and supercargo of the ship Somerset, his enviov.;, 
donging to the defendant, on a voyage from Ncw-Yorii he do^notVc- 
> Bordeaux, in France. The vessel was laden with a c^pj^f^j: ,;;;:■' " 
»y valuable cargo, consisting of a variety of articles, ^•'^•?^" ;^;^ 
sides a quantity of leather, which the defendant had, r^^ 7 - •- <*r 
aa engagement entered mto between him and the mi- du:y ui.:L.ncH 

cutf.I uriJrr 
' Anger T. Wilkins, Barnes 47^- Smith v. Haward, ib. 480. S. P. Sopr.Bul- the -:jA of i\\fi 
r J. in £ddowti» t. ilopkini, Uou^. j 7 7. jkx alio Gnnt t. A«Uc, Dflug. 72^ courts wbcu « c- 


^w'.TSS** ""^^'' of the French Republic in the United States, agreed 

v^^^v^^^ to deliver to the French government. By the terms of 

V. the contract, the leather was to be pud for on deliveiy, 

Unngfton. ^^^ jf ^^^^ ^j^^ minister bound himself that it should be 

turn, d to a paid for at the Treasury of the United States, out of the 

wcd'lrolTihii ^^^^ ^"* ^° *^ French Republic. la March foUowiagi 

court, mav be the plaintiff arrived at Bordeaux, and after encountering 

deuce. some difficulties, delivered the leather, which, not beiig 

then paid for, the plaintiff according to his orders, made 

a regular protest against the French Republic, completed 

the sale of the residue of his cai^, and invested thepro* 

ceeds in another, with which he set sail for Ncw-Yoik£ 

but in th^ course of his voyage, was captured and carried 

into BSt^iiuda, where vessel and cargo were condemaed 

by the Vice-Admiralty Court of that Island. Ail d» 

papers, relating to the outward cargo being on boards 

were, according to the custom of the admiralty in matters 

of prize, lodged in the registry of the cpwru To prone 

therefore his letters of instructions, and authorities aider 

which he acted in the disposal of the leather, the plaimiC 

offered in evidence the deposition of the Registrar of tli» 

Vice-Admiralty Court, annexing, under its seal, ontheti 

ticated copies of all the original letters and papers foond 

on board the Somerset, together with a full copy of ths 

proceedings against her and her cargo. 

To the reading of these, the defendant's counsel i 
objections, which were overruled, and they were 
dingly received. 

From these, it appeared that the defendant, inhufiM 
letter of instructions, dated the 3d of January, 1795, mflff 
** You have the invoice and other papers that reqMsd the 
" cargo now on board the ship Somerset, and whieh goeif 
^^ consigned to your address. The commissions opOfi tW"^ 
** ^^aics and investment f will be 2 1-3 per cent.*' Hd the* ' 
proceeds tO direct the conduct the plaintiff was to pta0 ' 
in delivering the leather, and how he was to mtmii^'H' ' 
order to obtain payment, but no authority whatao«««rir * 
given to sell. • • "' 

In a subsequent letter, dated the 3d of MarUi, 'IfW^y' ' 


defendant says, " If you find that you can not getNEW-YORK, 
■our money for the leather, agreeable to contract, and Vs!l^]l;^J^!^ 
^u can sell at near the price, it will be best so to do." Miller 
a die transaction of the ship's business at Bordeaux, Uvingitnn. 

plaintiff employed under him the house of Barton, ■ 

Mn & Barton, at a commission of 2 1-2 per cent, out 
lie commission of 5 per cent allowed him by the de- 
lint ,* but they charged no commission on the leather. 
[appeared also in evidence, that the whole amount on 
ch a commission was charged, was 859,415 ; that the 
ain's wages were only S30 per month, though mas* 
for such voyages, usually then received B 50 a month ; 
that the plaintiff had signed a receipt in full, at tho* 
of an account in which commissions for the leather 
been charged, for the balance claimed by him from 
Idendant, after deducting the commit»sions now d«« 
led ; but the words *^ in full,'* were written, with a 
drawn through them. 

nder these circumstances, the jury found for the 
tiff the amount of the commissions claimed by him, 
f 2 1-S per cent on the invoice cost of the ieatlicr de- 
ed^, subject to tlie opinion of the court, whether he 
mtided to any commissions, and at what rate i ac- 
ing to which, die verdict was either to stand or be 
dished, but if the court should determine that no com- 
ions were due, then judgment to be entered for the 

unilton for the plaintiff. The principal question U^ 
her the plaintiff is entitled to a commission on the. 
sr? There is another supplementary point» as to the 
Hibility of the evidence of the admiralty proceed- 
finom whence we derive the testimony of the dcfen- 
I letter. The right to the commission, will depeud 
e coostniction of the defendant's letter. By that, 
9Cfp ia consigned to him. There is a litde apparent 
piity relating to the two and a half per. cent, whether 
taken cm the sales and investments distributively or 
atively. But on this, there is no actual difference of 
OBi {or die counsel 9a the qther'side agreed to the 


NEW-YORK, distributive acceptation of the words, with this only cx- 
v^^.^^^' cpption, oF bills and money. The dispute now, is as to 
Miller ^j^^ leather. On the latter there can be no doubt. The 
LiringAton. c I rcutn Stances of the case, shew there can not be a diiTer- 
" ent construction. The plaintiff was consignee of the 

whole cargo. Thc.mere being a consignee, according to .. 
mercantile law, entitles to commissions : for commissioa 
is incident to consignment. He was to have a commii* 
•ion on the sales. The leather was only contracted fcr 
here. That contract, and the sale in consequence of it^ 
%r;is both consummated by the delivery, which the plaintif 
had to perform. All writers distinguish contracts from | 
.sales. The latter are perfected only by payment, o^d^ j 
livery ; and this last the plaintiff had to perform, under a 
load of discretionary power, which he had to ezercisei 
in weighing or delivering, as circumstances might re* 
quire : besides, he had an alternative power to sell, w 
deliver : he was therefore agent and consignee. The de- 
fendant, it is understood, relics on the contract and sale 
of the leather being here ; therefore, being the effect of lui 
own labor and exertions, that the plaintiff, in this respect, 
was a mere captain, and can not claim any commisuoiu 
This hiLs been already confuted ; the trouble the plainiil 
was to have, is stated in the letter of the defendant, anditii , 
not presumable t!iat he was to have it for nothing ; «pe*^ 
daily as his situation cliargcd him with a responsibili^i 
which the court can never suppose to be gratuitously QA^,- 
dertaken, as !»eneral consignee of the whole cargo, com- , 
niis5>io!i on all must be implied. On the aduiissibility of.tb9 < 
proceedings, Uie court will observe, that papers ofam %^ 
respect in consequence of the situation where found* 0)4 
pa|)ers with wills, &c. are not accredited merely fKM| ; 
their antiquity. There can be no doubt th^t senteQCCl^ 
in the Admiralty, for the purpose of establishing any Ac^«< 
they contain, and all the proceedings incident, arepris^^/' 
focie evidence. The question now is, whether prooeei^ ., 
xn^'s relating to the subject of controversy, shall be receif*, '^ 
ed, when that subject was not the matter before the ^^^fy 
there : If decided tgainst the plaintiff, it will only tvn 


round to a court of equity, which the court certainly ^^w'Tto^"^ 
not do. The objection to the admission is the want ^^p^. -w^ 
roof of the hand-v/riting of the defendant — The court y. " 
remember there has been a notice to produce the ori- i-^viugitofc 
\\ : that the letter in question has every circumstanoe 
nake it believed a fair and regular document, it W5is 
guide of the plaintiff's conduct, and has been forcibly 
en from him ; it was against his consent, and without 
concurrence that it was placed in the archives of the 
irt of Admiralty, where it is irrevocably fixed, from 
enco it can never he removed : It is adduced only as 
ma fac?e evidence, therefore the defendant was atlib- 
y to rebut its contents. In our own courts a copy thun 
henticat^'d, would be good evidence, and the almost 
jossibility of sending a person to authenticate by in^ 
ction, is an argument, from the excessive inconveni- 
e, whv the evidence should be received. No one can 
believe -the fact. The only difficultv is the technical one, 
^tablishing the hand-writing ; but in the present case, 
document ought, abstracted from the rule of law, to 
'C its weight- 

ToflFman and E. Livingston, contra. First, as to the 
nissibility of the testimony — the court must depart 
m every rule, befori; they can be inclined to admit it. 
>pose the Ictteritself had come into court, and been pro- 
:ed, wonid that have been enough, to have it read before 
iTV? Must not the hand-writing, the execution as it 
Jjht be called, have been first established ? Waving, 
rcfore, technical reasoning, shall a letter read in the 
irt of Admiralty, and made an exhibit there, become 
ins circuitous mode, evidence here, where the letter 
elf, the very exhibit would not be testimony ? A plain- 
'cannot, by merely producing a paper, make it evidence 
•him. But the argument is, that if he will first exhi- 
it, in a foreign court of Admiralty, the copy shall be 
ttcr than the original. The difficulties and inconvenien« 
Si, arise, as they ever will, in consequence of departing 
n&cttablished rules, and is not an admissible arguAient. 
behw points out a mode, a bill in equity — In the admi- 


^^Kw'^SJ^f ' ralty, no proof is made of the getiuineness oft 

V^p^v^^^M^ nothing but a mere naked possession. But evi 

v.^*^ ing it, the case itself, when plainly stated* so! 

'^^g*^^"- difficulty. The leather was only to be delivered 

* A copy of a not sold — that business was done here : the pla: 

rcfifscd to* b^ ^^^ characters, and each consistent ; he was to 

read, there bs- leather as master, in this capacity he was a mc 

inp no proof . ' * ' 

that the origi-the residuc of the cargo he was to sell ; and he 

nal note wa« , . , .... 

fcnuinc. Good- consignee, to receive the commission of 2 1-2 p 

Att 446^ N.R sales and investments, distributivcly. The q 

2|5^™J^i?(^;wn3 the leather sold by him? If so, he is to 

iame hi equity, commission ; if not so sold, he is not entitled to 
as at law. ' 

must, according to the counsel's own position 
and deliver to make a sale. The plaintiff delii 
only on the principles relied on ; he did not sel 
for in France^ 2 1-2 per cent, commission was t 
ed. It is not now paid for, and the plaintiff cai 
leather, claim a commission : it can be put in 
shape. The delivery, therefore, was all the pi 
formed, as to the leather; that was in the line of 
captain, and for that he has his wages. These 
missions were charged and relinquished* In th 
which makes a part of the case, they were claim 
being objected to were stricken out, and a rec 
for the balance without them. 

Commissions are claimed by the words of th 
directions; if then they are not plain, explicit, ai 
the fullest proof, they are not to be allowed, 
be ignorant of the English language if they oi 
words are ^^ the commissions upon the sales a 
fneyits.^^ AVas there a sale, was there a receipt 
or bills, was there an investment? In these thi 
commissions were to be allowed, not otherwise* 
qualification of consignee confers, it ia saidi ' 
rights. That the mere character, implies a tid 
missions. Consignment alone gives no commisi 
complying with that consignment, and the coiid 
which made. Commission is the child of tabu, 
jiult of benefit to the gartiefiy api]L)ie msre plits 


Is of another, wh^n nothing is done : »tiU less when ^'^^"^^u^ 

1 18 done, is contrary to orders. The instructions are, \^**v«^y 

> be delivered, their paying you on delivery. ^^ Non« y. 

lience of tfais positive order, is an answer to the claim ^''^*°''"°°* 

ommission* The contract being in the alternative, 

Mijrtnent here, or in France, is nothing to the purpose* 

'defendant was to decide on the place, and he chose 

be at that of delivery, and on delivery only. That 

irages were less than ordinarily given, was the natu- 

nd reasonable consequence of circumstances. The 

itiff was made consignee of the cargo, and had ho 

'ed his instructions, by receiving payment on delivery 

lie leather, and investing the proceeds for an India 

ige, as was contemplated, his emoluments would havo 

k excessive. He has acted in contradiction to his or* 

, and therefore instead of commissions, is liable to 

onaibilities. As to the evidence, it may be procured 

Mther way. 

Ikmilton in reply. It will be necessary to add only 

tit two observations to the reasons for admitting this 

mony. It is not asked to be received as conclusive, 

taly as prima facie evidence, subject to be rebutted. 

lerefore, is not put on the same footing as a letter with 

nnd-writing, or execution as it has been termed, fully 

blitfhed : in this last case, it would be final. The de- 

unation of the court is of immense importance ; but 

^will'recollect, that the original letter was not vohin^ 

)/ brought into a court, to forward the interests of tho 

^ adducing it. The question is, whether an agent on 

lea, in the prosecution of his business, in possession 

in die papers and documents necessaiy to establish hi» 

sey and claims, shall not, when despoiled of them^ 

Fa copy from a court of admiralty, where they are de- 

ited, in testimony, as prima facit evidence ? for it is 

iaed to that. The circumstances with which the pro* 

idem is qualified, the court will please to observe, take 

PfaDidea of fabricating papers to make use of them 

Mtimony. Then will the court turn us round to a bill 

#tf^l W« deny that the pbdntiff was to deliver only x 


^^"^,^* he was to exercise discretion, and that takes him out 
the line of a mere carrier. The bill of lading is filled ' 
to him as consignee ; he had even a power to sell the k 
' ther on certain events, and his character of captain d 
not necessarily destroy or merge that of consignee. T 
prospects and hopes of a secondary voyage, we contie: 
the court cannot infer as a consideration. It doesi 
appear ; a mere chance cannot, by intendment of law, 1 
come a consideration for meritorious services, when the 
Is a written contract. The captain could not be a me 
carrier; for if he had been so, delivery to him would hi 
been delivery to the French Republic, and he could ba 
no power to withhold. On the receipt, it is necem 
only to state, that it was first written *' in full i^ 99 
stood when the balance was struck, induding the coi 
missions on the leather. When those were objected i 
and deducted, the words ^* in fulP' were struck onCi I 
drawing a pen through them. Why i Because, M A 
commissions were not paid on the leather, the recMpt va 
not in full, and those commissions are the object <)f tb 
present suit; 

Thompson, J. now delivered the opinion of the ooirtt 
Tlie two questions presented for the opinion of the 900 
in this case are, 

1st. As to the admissibility of the evidence takes IP 
der the commission. 

2d. Whether the plaintiff was entitled to any covpM 
sions on the leather delivered to the French govcmMt 
and if to any, what rate was to be allowed i 

I shall pass over the first point, as to the admissilfflj 
of the proof, the other being the principal qncidim 
and going to the merits of the action. Admitting tiMf)^ 
ters to have been sufiiciently proved, I think they irAM 
warrant a construction, that the plaintiflF was to have^i^ 
missions upon the leather. By the contract made IhjMMI 
the defendant and the French minister, mptrHUi^ 
leather, as appears from the plaintiiTs witneia, m'iMnI 
tion was annexed, or option left with the defeadeot IRN^ 
in case payment wu not made. The stipulBttM^jlIf 


dttit*8 part, was absolute to deliver it ; and in case ^^^^^ 
rat was not made on delivery, the French minister ^^^^^.^^^ 
I himself to pay for it at the Treasury of the United ^^ 
I, out of the debt due to the French Republic This Liviiig>ton. 
the contract with respect to the leather, it is hardly — ^— ~* 
nable that it could be the intention of the parties, 
le captain was to receive a commission of 2 1-2 per 
or such delivery, especially as he was master of the 
and received pay as such, though S20 a month unv 
le usual allowance. But he was always $o receive 
issions on a very valuable cargo, (amounting tp 
15, exclusive of the leather,) and this was probably 
ason why his wages, as master, were reduced* 
: circumstances are mentioned as aiding, in some 
.rS) the explanation of the letters, which may, per* 
appear doubtful. In mercantile language, I be# 
it is well understood, that commissions mean an 
ince or compensation made upon the sale or pur- 
of goods ; and in conformity to this understanding*, 
i the defendant's letter, which is made the founda^ 
fthis action. He says, ^^ The commissions upon the 
nd investments^ will be 2 1^ per cent.*^ Has there 
. sale or investment of this leather i certainly not ; 
r was there, by the first letter, any authority or di* 
1 given the plaintiff on any event to sell the leather ; 
18 to deliver it to the agents of the French govern- 

I confine myself now entirely to the first letter, 
le that is the only one that speaks of any commis- 

We do not find the plaintiff, when the French go- 
lent declined receiving the leather, offering it for 
mt he repeated his eftbrts to deliver it, until he suc- 
l. This serves to shew what his conceptions were, 
•^)ect to his directions for disposing of tliis Icatlier. 
ad also, that Messrs. Barton, Capon and Barton^ 
gents widi the plaintiff in the sale of tlie cargo, made 
iige 6[ commissions upon this part of the cargo. It 
, the defendant, by a letter dated the 3d March, 
two months after the vessel sailed, directed the piain- 
bc could not get the money for the leather, agreeable 



^^Vaf7i9^ to contract, to sell it, if he could get nearljrdiesaiMpricnR 
v^v"^^ This letter, however, could not alter the plaintiflTs r^ 
^^^ to commissions under the former contract, which wsi coo- 
i^'^ot^ien. summated prenoiis to the sailing of the vessd. If tUs let- 
ter gave directions to make a difierent dispositiott oftb 
cai^ than his former instructions would warrant, and be 
had accordingly done so, it might, perhaps, have aSaid- 
ed grounds for a claim of commissions, or an actioooas 
quantum meruit for such services ; or if he had leoeived 
the money from tlie French government, and invested it., 
according to his first instructions, he might have heeo sa- 
titled to his commissions on suclninvestments. But all ihii . 
is completely answered, by shewing that lie made nosshg 
or other disposition of the leather* but barely deliverad itio 
the French government, pursuant to the first directioosif : 
the defendant. The opinion of the court, therefcue, i^ ■> 
the plaiiitiif was only entitled to commissions on tbeasfal 
nnd investments of the cargo; that here has been namkat - 
investment of the leather, but only a delivery of it:tplbe 
French government, according to the defendant's eootaot 
with their minister, and, of course, no commissioni dos- 
faim ; and that judgment ought to be £«r the defendant. 

James Jackson ex dem. of Francis I. Putnam a||li( 
others, against William Bowcn, - 

Parol tcidmo- THIS was an action of ejectment for lands situated ifl 

ny cumot be ** 

recehredto Johnstown, in thc county of Montgomer}*, tried dicrej 
deed, sutins a ^he last circuit before his Honor, Mr. Justice Thompion. 
chS'iit^^in- T^e lessors of the plaintiff, and the defendant d^, ih 
tended to M- rived their titles under the will of Victor Putnam, 

preis %q. An ... 

advene pedis grandfather* He had devised in severahy, 100 acres 
ycu^d u^ undivided land to each of his children, and the overplus to 
cbixn'ofuucin'^^^^^^^^ ^"^^"g'^^ four SOUS. Johannes, the father 
rJghTJflSt^^'^*^ lessors of the plaintiff, was one of the children^ andl 
di» pjMcstto, ry Bowen, the mother of the defendant, v^ another. 

which luids . 

are part of the. By a deed of partition, reciting the will, tlie 100 
the°p^ MM. devised to Mary, were set out, and the residue of itie ps^ 
u^SaMoaS*^"^ apportion^ among the four sons, 
coveryin ejecu The north and south lines of Mary and Johannes, 

the same i the dispute was respecting the east and «e 


^ondariei. If the lines and courses irere run acconling NEW-york, 
Uitiiedeed of partition, the lands in controversy would fall \^!^!!!i^I^ 
vilhin the limits of the plaintiff's division, but Mary Bow« J^kfon 
nvoold not then have her lOO acres. If, on the otlier hand, Bowen. 
(he acknowledgments of the ancestor of the lesson and 
, together with a claim of right, but not a pedis 
(io of the whole, were to prevail, the defendant 
be entitled. 
On the trial, it was attempted to prove, by parol testi- 
ly, that the partition deed, in giving a north course on 
theeast side of the lot of the lessors for 36 chains from the 
tottherii line, was a mistake, and that it ought to have been 
•Itoaliil only 29 chains ; in which case, by running the 
Easwflst to the common north and south boundary, the 
Wlf^ of the defendant would be established, in conformity 
tathe several quantities of laud, tlie willaud partition det^d 
IMrported to be the right of the various ciuiniauts under 
thai, and also in strict coincidence with known land- 

'Thejudge, however, overruled the testimony, as con- 
tadictory, and not explaining the deed. 

Upon tliis, and the testimony adduced, which is set forth 
^iilUy m the decision of the court, timt it is unnecessary 
Im to relate it, the jury found for the plaintiff. A mo- 
%i was now made to set aside tlie verdict, as contrary to 
^ridtace and law, and also on account of the misdirection 
^die judge to grant a new trial. 

Gvley for the defendant, to shew the mistake in the par- 
tiliQildeed, ingeniously located the ]00 acres devised to 
iVtty Bowen, and the quantity to which die lessors of the 
rtjiltiff would, under that, and the will of Victor Putnam, 
^iMitlod ; and as tliis could not be done, but by running 
Hipgrth and south lines on the eastern boundary of the 
VtihtVy ^ instead of 36 chains, tlio deed was felo de se, 
^■Im 10 explained. Idle contended also, that the action 
wtaaat na^ntainablc, as there bad been an adverse claim 
9Vm whole lot, accompanied with an actual possession of 
in right of the title to the whole, and adverse to all 


^frOT'TS?*^ Van Vecten contra, insisted on the inadmissibility of th 
' parol efidence to do away the words of the deed, and tha 
a purchase might be presumed of any extra quantity. He 
strongly urged the impropriety and danger of extendti^ 
" the effect of adverse possession beyond the land actoalij 

Per curiam, delivered by Thompson J. This wm it 
action of ejectment for lands in Montgomery county^ttii 
ed at the Circuit in that county, in June 1802. A ver- 
dict was found for the plaintiff, and application is iwv 
made for a new trial, on two grounds* 

1st. That the verdict was against evidence, and 

2d. That the court improperly precluded the deicoihil 
from shewing that there was a mistake in the partitifla 
deed, under which, the parties respectively claimed, % 
which the lessors of the plaintiff had more land, thaaini 
intended to have been conveyed. 

From the testimony, as stated in the case, it appenvtkd 
Johannes Putnam, the father of the lessors of the*plain« 
tiflf, and Mary Bowen, the mother of the defendant^wcK 
brother and sister, and children to Victor Putnam; mid 
whose will, bearing date the 5th of July 1755, they dfri- 
ved title. That on the 19th day of September, 1765, Af 
children of Victor Putnam, executed a partitioD 6tdi* 
whereby lot No. 1, was conveyed to Johannes PutnaBi fea- 
ther to the lessors of the plaintiff, and lot No. S, to Vbtf' 
Bowen, mother to the defendant ; and the quei 
tween the parties is, where is the line of division 
the two lots i The plaintiff having made out a ttdf^'H^ 
lot No. 1, and the defendant to lot No. 8, Jamas lMtil$f 
a surveyor, and witness on the part of the plaintifft' wA*' 
lied that he had run the western and northern linei af^lp 
No. 1, according to the partition deed ; and that 
the premises in question, according to auch aunreyv 
included in that lot. * t^W 

Jacob Rees, a witness on the part of the ^, _ 

swore he was S5 years old, and that as bBgagO-iHp 
could remember, Mary Bowen was hi 
land now held by the defendant, and that she 


m ; she had some land inclosed in fence down as far ^'^^-^J^^ 

uth as the road ; she used to live 4 or 500 paces south 

■the road, but that just before the war^ she moved down 

lose to the north side of the highway. That about 14 

rl5 years ajjo, Johannes Putnam shewed him his west' 

ise, and told him he be^n at the Mohawk-river and run 

Kfftherly nearly to the highway, to a pine tree, and that 

he land north of that was his sister's, Mary Bowen* 

rhat when Johannes shewed him this line, Mary was in 

xncssion of the land north of the road. That about 7 

sr 8 years ago, Francis I. Putnam, put up a stone near 

lie pine tree shewn him by Johannes, and said that was 

ikcomer, and that at this time the defendant was in pos* 

Riiion of most of the land on the north side of the road, 

ilSch he now holds. That the whole of the land now 

Ud by the defendant, was not cleared or in fence, at the 

ame of Mary Bowen's death. 

"^coh Hall, another witness on the part of the defend- 

M^ swore that about 36 years ago, Johannes Putnam 

sUhim his land went no further north than the road, and 

lutMary Bowen owned the land north of the road. That 

itdustime, or shortly after, Mary Bowen lived near the 

md ; she had before lived farther north. Johannes Put- 

fm called the witness particularly to shew him where his 

m was. It appeai-ed also, by the testimony of Abraham 

Sooyne, that about ten years ago, he applied to Francis I. 

tenam, to rent him part of a house that stood near thp 

lid, on the north side ; that the said Francis declined 

Mng it to him, but referred him to the defendant, of 

horn the witness leased the house for one year; the 

itiPin understood that Putnam did not claim north of 

Sfkmim Lewis Clement also testified, that about seven 

*^4g|bt years ago, he assisted Francis I. Putnam in mak- 

g!«'ftace between these lots on the south side of the 

•d ; that the defendant came to them, and enquired of 

Moia if he was making the fence on the line, to which 

rhMweredthathe was, as it had been shewn by Jacob 

ifBii*«Dd ibe defendant. It appeared also, that Mary 

inftdbd about 15 years ago; 


NRW-YOkiK, On the part of the plaintiff it appeared, that part a 
j''-^/ premises in question, adjoining the road, were onini 
vcd at the expiration of the war. It also appeared, 
about 6 or 7 years ago, the lessors of the plauntiff dac 
' the premises, by threatening to dispossess one Peter I 
rencc, who afterwards took a lease under them. 
Lawrence had the possession from Jacob Rees, whol 
under Abraham Conyne, who it appears had hired it f 
the defendant. 

The partition deed between the ancestors of the pa 
bears date, in the year 1765 , wherein lot No. 1, dn 
by the lessors of the plaintiff, is described as begiamof 
the Mohawk river, and running a northerly course 36 da 
dcscribinpr no monument at the termination of this linft 
appears from the tej»timony of the surveyor, that toeit 
tliis line northerly the number of chains given in the d( 
and then pursue the other given courses, woukl indode] 
of the premises in question. But the testimony on the] 
of the defendant appears to me to be strong aad irm 
ible, with respect to the actual possession for ahagM 
of years j and that in fact, no possession was em-bM 
the premises by tlic lessors of the plaintiff, or their U 
under that deed. And that admitting the deed to OOMT 
Jand, stiil the plaintiffs, and tliosc under whom tfaejitll 
have abandoned it, for such a length of time as to pMl 
tScni from a recovery, at least in this form of aclkii. 
is true, a man may be mistaken with respect to hu ^ititfi 
perhaps ought not to be concluded by his coiif«pHl| 
mode under circumstances inducing a suspicion oLim! 
tion or ignorance, neither of which appears in thiatC|H|i 
stance^ and when acquiesced in for tlie length of tio^ifl 
the present case, he ought to be concluded. • i'^Hfli 
that the premises lay north of, and adjoining to the! 
which is the division line between the parties, i 
their present possessions : the lands of tlua 
to the south, and those of the defendant to thos 
road* Two witnesses on the part of the i 
that as much as 36 years ago, which ^^.^l>4A(Nitt|| 
shortly after tlic partition^ Mary Bowcn was ^JHM 


«t^ premises ; tlie possession of Johannes Putnam going ^^^^^^^* 
BO farther north than the highway ; and it appears by tlie v.^>,A^y 
t^fUmony of one ^vitness, that as far back as the i^eriod J^^^ 
ibore mentioned, Johannes Putnam shewed him the line be- ^°^^- 
tveen him and his sister Mary, and declared to him that 
Us land went no farther north, than to the road ; that the 
had north of the road was his sister Mary's : the same 
4tdaration was made to another witness about 14 or 15 
years ago, and since the death of Johannes Putnam, the 
knors of the plaintiff have repeatedly recognized the 
lime line, both by their declarations and acts, and never 
liiewed any dissatisfaction until about 6 or 7 years ago. 
lAus, I think it is clear and conclusive from the testimo- 
Wf^ that the defendant, and Mary Bowen his mother, un« 
IfT whom he claims, have been in possession of the pre- 
njbcs for at least 36 years, claiming them and using them 
Hdieir ovm, adversely to any other claim, and with such 
ipptated recognitions by the lessors of the plaintiff, and 
inir father, of the right of Mary Bowen, as to shew 
JMdosivcly that they disclaimed having any right or title 
M Ae premises, which is sufficient to rebut every pred- 
ion that Mary Bowen held under them. The pre- 
being held under such circumstances, for such a 
lipglh of time, is, I think, sufficient to protect the propo* 
iJtioQ against this action. 

I am of opinion therefore, that the verdict is against 
fvidence, and that a new trial ought to be granted. Being 
i^finrpr of a new trial, it would be unnecessary for me to 
gibe an opinion on the other question, did I entertain the 
loMt doubt on the subject. The plaintiff's deed gives 56 
tfcaint cm the first line ; the defendant contended it ought 
an^ to have been 29 chains, aiid the testimony offered 
mi,<nrerruled, was to prove that fact : this was not to 
mhtn- any ambiguity, but was directly contradictory to 
l^.dccdt and manifestly inadmissible. 

llaBiy Peyton against Richard S. Hallett. The 
same against John DelafieJd. 
T&E8E were actions on two policies of insurance, one A warranty of 
SniEKebody, the other on the cargo of th^; sloop Ruby^^^^^t'l'X 



^'IS^.Tto^^ on a vcymgt from Charleston to the Mantanzaa, in Cuh 

' warranted the property of an American citizen. On tfa 

Toyage, the vessel was carried into New-PrOvideno 

where she, on the 9th of December, 1801, was acquittec 

but her cargo condemned as lawful prize. The abandaa 

ments were made the Tth of January, 1802. The defiB«l< 
metican citi- 

cmploTt and 

don^. inte- was objected to by the defendant's counsel 

restinaTcsael, ^ j^ • - « i> i_ 

byapcraon tent, on account of an interest in the event of the 
ISSn^lI^t^ It appeared that White, who was sworn on his voir diici 
the^S^*°^ had received, for a debt due to him from the plaintHJ^ U 

when she wa» order on his airent, to be paid out of the sums to bem 

about to sail on o ^ r 

the voyage in- covered in these actions, but the agent had not accepn 

In a cargo, by the order, though lie promised the debt should be fM 

^fe^^^ants having no defence, put the plaintiff to his proo&i^ 
' rqwtatioo, To shew his interest, one George White was called, vta 


^d«\ou|ht out of them, and the witness expected to be paid 
SJd^^^cSj^^' ingly. White, however, further swore, that as his rij^ 
diem go on did not depend on the event of the suit, he should koklt 
nets who has Peyton for payment, whether he recovered or aci» Oa 
paid out oAhe^ this, his testimony was admitted, and the plaintiff well 
SS^taVIS",^^*^ prove his interest in the t;<r*^f /, by the evidcaccrf 
SSwnt^hi White, which was again opposed, but overruled, 
is to receive Whitet hen testified that he had seen a register of thew* 

such sum, is not -.- -, •..«. ii *••, jl-^ 

a competent sel, m the name of the plaintift, and that she sailed imln 

the w-der is not o^ the voyage insured. In corroboration of this, diepl# 

•ccepted. cecdings in the vice-admiralty, under seal of the ^ifttili 

were produced, setting forth a copy of the register lil'di 

form. It also recited a bill of lading, in which tUjji 

was mentioned to be payable in the following mmUfi 

•* as customary no. primage and average accustomed*^ ^ 

The interest in the cargo was established by the Uti 

witness, who swore to having attended the plaintiff UI0 

lect the articles purchased, some of which he saWdiHM 

wharf where the vessel lay, and going on board. *1R| 

counsel for the plaintiff, as additional proof, ndddciX9 

of parcels of the articles specified in the invoke, afllw 

* That is, when an underwriter does not know why he AoM pitMlJi 
^^ the Insured to evineiagkiaUTwiiy hedioold. If ontheCi^ ftljB* 
sot nude out according to the precision of law. the amxtfittB tk^oMtF 
cawc the plaintiffdidnotmakeoitthii case '-■-«»s?« iww v mw » 


J the vendors, whose hand-writing he offered to ^^J^'Y^*^.** 
! ; but this latter testimony was rejected.^ 
other reason than the capture was offered for the 
roduction of the vessel's register and bill of lading, 
substantiate the citizenship of Peyton, a copy of a 
1 of his naturalization was offered, which being ob* . 
to as informal, was withdrawn ; and the counsel for * See Rimcl 
lintiff dien relied on the testimony of White, whostnuzitTi'con- 
that he had known Peyton to havereaidedin Charles- ^^' 
•ur or five years, but how much longer he could 
1 : that he had known him to command vessels re« 
ed as American, sailing under the American Hag, 
arrying ten or twelve guns ; but that he had heard 
aintiff say, he was bom in Ireland ; though he liad 
eard him say, he was naturalized in 1787, and that 
s reputed an American citizen* 
establish the abandonment, the agent of tlie plaintiff 
Iduced, who deposed, that on tlie 7th of January, 
he left letters of abandonment, (a copy of which 
the same time oficred) at tlic office of the broker who 
d the insurance, to be delivered to ail the uuderwri- 
1 the vessel and cargo, but whether they were deli- 
or not, he could not say. The clerk however of the 
r, certified, that if tiie letters were left, they niust^ 
he regular course of business in the office, have been 
red, though he himself remembered nothing of tlie 

ice to produce die letter of abandonment, Iiad never 
riven CO the defendants. 

this a nonsuit was moved for, it being contended tliat 
lintiff had not shewn enough to entitle him to reco- 
The judge who tried the cause, seemed to think the 
ohip not sutficieiitly established, but that a verdiot 
be taken, and this, together with the other points^ 
pd by the defendant. 

jury accordingly found for the plaintiff, in both suits ; 
t, on a case to be made by the defendant, to the opi- 
ttlie court, whether a nonsuit should be entered^ or 
I granted. 



Nor. 1803. 


Pendleton in behalf of the defendant, made the I 
lowing pointB : 

1st. That George White was not a competent wi 
2d. That the vessel being AmericaH, parol proof c 
ershjp was not admissible. 

3d. That parol proof of the abandonment was i 
'' mJssibley the abandonment having been mado in n 

and notice to produce it not having been given. 

4 th. That there is no proof of the property beii 
of a citizen of the United States. 

5th. That admitting these points to be against hii 

plaintiff cannot recover on the vessel^ as she was aci 

at New-Providence the 9th of December, 1801, a 

abandonment not made till the 7th day of January folli 

On the first point, it is only necessary to read the 

by this it will appear, that White's interest was direo 

was to be paid out of the fund. Can any man doubi 

he who is to be paid out of a fund, is interested iaqs 

that fund ? In Powel v. Gordon, 2 £sp. 735, hfn 

a power of attorney to receive the money for which t( 

was brought, excluded the holder of it, from be 

witness. It is true^ the order was not obligatoiy \ 

agent, but still it was a lien on the fund. A mortgage ii 

•Thatwata Collateral security for a debt ; the mortgagee, hqwe 

catebetwwn not, in an eiectnient, a witness for his mortgairor. I 

a bankrupt and auswcr to this to Say, that iierc the matter was but 99 

wd!l-'drawn by i" action, for, of tliat chose in action, the Qri%^ 

on^ monc"'5uc ^^'^*'^ *" assignee pro tan to, which a court of equi^ 

him on an ex- notice. Row V. Dawson, 1 Vez. Sen. 331.* So iff 

chequer war- _, *r , i i i i «• '■• 

ant, and that V. Orovcs, 1 Vez. J. 280. the hoJdcr of an ora^ji 
witTthcuiicr. cepted, but verbally promised to be paid out of jtl|g 

w JlX^meit ^'^^ '"^'^ ^" ^^""^^ ^ '^*^" "" ^^^ fund.t He thecdbi^ 
against the a3- dxrcct interes*. 

rrprc!icntc:d On the next point, there can be no doubt. Mi) 

x-m.-.^l-^!?-! record can be proved only by record. By the nil 

t That aUo was '.-.r^ 

a case against of the register act of the 31st December, 1798. kl 

asiigncesjto dc- , , r,., . • ' • •• T M 

Clare a lien on actpd, that '^ The seveml matters herein beforefMl 

the money in i* i • . i- j * • i • i '• '^.'i* 

tiicir hands haymg been complied with, in order to d^ej^m||| 

J' of any ship or vessel^ the collector qf the. il^tOSfk 



rehending the port to which she shall belongs shall new-Tork* 
lake and keep in some proper book, a record or re- . Nov. jSoj. 
istry thereof, and shall grant an abstract or certificate 
'such RECORD of the registry, as nearly as may be, in 
form following," &c« We see thus, that by an act of 
general government, the register of a vessel is made a 
ter of record, and therefore, its contents should be ' 
'ed by an exemplified copy, and not by parol, 
arol proof is equally iiKidiiiissibie incases of ab«indoi)- 
t, where that abandonment Jias be^n made in writing, 
lUse the winting is to speak for itself, and therefore no- 
te produce is always given. JVlany of the first prac- 
ners at this bar, have suffered nonsuits on this very 
it, merely on account of notice not having been given, 
to the proof of citizenship, there is none. The \try 
lence called, establishes that the plaintiff was born in 
md, and the English courts of admiralty have deci- 
, that an English subject cannot trade with an enemy, 
te port of whom the vessel in question was bound, 
ensible was the plaintiff's counsel of the inadequacy 
iidmony on this point, that he almost abandoned it by 
idniwing what was called a certificate of naturaliza* 

be hat argument on which we mean to rely, is, that 
abandonment was clearly out of season. The sen- 
t was on the 9th of December, and the abandon- 
tnot till the 7th of Januar}'- The usual passage from 
iau to New- York, is 8 or 10 days ; here nearly 30 
led ; and at least as to the vessel, it was too late ; for 
was acquitted ; and it may well be supposed, the 
r of her liberation arrived with the account of the cap- 

lines contra. Against retaining 
: b^en given in our favor, a long 
befcn urged. First, that White 
jNk, and for this, the reason assi 
^rest m the event of the suits. 
bso or not, it will be necessary 
of Interest which he possessed. 

the verdicts, which 
list of five objections 
was not a competent 
Igned is, that he had 

To judge whether 
to advert to the spe- 

A recurrence to the 


^£^~Tfc>^' ^^^ ^'^^ evince it to be no more than an order to be pud 
^ out of the money that might be recovered under the pdi# 
cies on which we now proceed. This order was notcfci 
acctfpted, and so little did White rely upon it, so little did 
p^^ ^j he feel himself concluded by the result of these action«i 
»^«>^ he swore his right to look to the plaintff did not dci 
pend on the suit, and whether a recovery was had oriMl( 
he looked to Peyton for payment of his demand. Wv^ 
respect to witnesses, the courts have, especially of hK 
days, confined the objections to their credibility, 

Hu^iyi. than to their competence. Notwithstanding Watt's 

this has long been established. It is not a decisioaaf 
modem times ; we can trace it back to the earliest poiodi 
of law. In Gunston v. Downs, 2 Roll. Abr. 68if. pL Si 
it is laid down, ^^ That if three persons join in oiwdft> 
^ position, and three separate indictments are prefani 
'^ against them, each is a competent witness, the oae te 
" the other." 

Livingston, J. Shew how the interest here, does not 

Caincs. Every interest to render a witness incoaprllH^ 
must be direct, and not circuitous. Bent v. Bakefi 3 ft 
& E. 27. Your Honors have already decided this ivtf 
point. In Baker and Rowlston against Richard and HlMf 

• Ante %i^ Arnold,'*^ an indorsor of a note was held to be a goodliM 

Kent j^sayt,^ ne:is to prove the indorsement made after the note 
^^^' though by his testimony he might let himself into 

equities subsisting between him and the maker. ThldMl 
soil of this is obvious : a possible advantage cannot dcUpi 
to render incompetent, the benefit must be hiiiijUlWi 
Wlien it is not su, it afiects only tlie credit of the vi^fl^ 
and on that, like all other matters of credit, it is fpr aJA 
to determine. If they think the witness worthy aCji)lilf 
they receive ; if not, they rcjuct his testimony. 0i|^|p|| ' 
principles, therefore, it has been ruled, that whemftW 
has laid a bet on the event of a suit, iic is still a 9oqM|il| 
witness. Barlow v. Vowel, Skin. 686. Geocger,^jMH||||^ 
cited by Grosse J. in Baker v. Bent, 3 D. &.^.A7^|]B 
if the wager be that he will convict the defenJay|f^ 

DF the state of NEW-YORK. 369 

indictment^ the law is the same. Rex v. Fox, 1 Str. 652. NRW-york, 
ndper Lord Mansfiehl in Da Costa v. Jones, Cowp. 736. k^^^^iJ^ 
So a creditor was allowed to prove, that his debtor did not 
Mae within a species of insolvent law, called the mint act. 
Noreolt ▼. Orcott, 1 Str. 650. Surely in this last case, 
kre was as great an interest as in the present ; for, if the ^*»fi«M. 
DKditor established his debtor to be out of the provisions """"""""* 
rfthe act, he had an immediate recourse against the person 
tf the insolvent, and so came directly within the event of 
■k. But, as it was only possible that the result might 
Bmiiiate to the advantage of the witness, he was adjudged 
tt be competent. It is expressly laid down in Bull. N. 
f. flB9j 89, 290, that a remote interest can never exclude. 
i is not in one or two places alone, that this doctrine is 
obe found ; it is scattered and diffused through every 
ioition of the law. A surety for an administrator, not«* 
ridtttanding he may become liable on his bond for the 
■itfaful discharge of the administration, is a good witness 
D ptive a tender in a suit to recover a debt due from the 
iitestate. Carter v. Pearce, 1 D. & £. 163. It is from 
hat authorities, evident therefore, that a possibiliUj of 
vferetf, goes not to the competence, but to the ver« 
lictof a witness. Even this, to men of liberal minds, 
I vould hardly touch. The objection, however, comes 
IMI the parties who now make it, in a manner pe- 
Ndiariy ungracious. They first create the necessity of 
ivmwing, and then use that necessity as a means to 
■void paying. From whom is a man kept out of his 
i||kt to borrow, if not from him who is connusant of 
hitijght ? There is not, to be sure, any express deci- 
i0B exactly in point, but so far as a dictum of the whole 
t of King's Bench can operate in our favor, we have 

kWW to advance. In the case last cited,* their Lord- •Cirtcrv, 
m^ unft voce said, ^^ if a creditor of the admmistrator 
^'tel been offered as a witness, there could have been no 
* diction to his being received.'' This then goes the 
tele length of our positions. Every creditor has an in- 
Btett in the event of his debtor's suit ; but as it is such a 
Ic aa ia remotei and merely possible, it cannot affect his 


KEW.T6RK, competence. Were the law to be otherwise, it would, i: 

a mercantile country, be hardly possible to substantiati 

by oral testimony, any species of debt whatsoever. An 

Hiiictt. ure find, that in proportion as commerce has extended^lh 

T. rigour of ancient rules respecting interest in witnessesYki 

^ been constantly relaxed. Against us some maxima an 

some decisions have been relied on, which, however,-] 
is conceived, do not in the least invalidate the force a 
our arguments. It is said that the order in favor of WUtt 
created a lien on the property in the hands of the agHfe 
Allowing this to be so, that lien was but a postibiliqri 
There might have been five hundred previous orders, esd 
to be preferred to this ; or the agent himself might havi 
had claims, more than enough to absorb the whole of di 
funds when in his possession. That equitable liens shooU 
work /rfff/ incompetence, is perfectly new inlaw: ifitta 
so ruled, the court may perhaps see the doctrine of ia» 
competence pervade cases, as yet but little supposed to to 
within its influence. The case of a mortgagee beioginad- 
missible in an ejectment to testify for his mortgagor, u 
widely different from this. There the mortgagee hill 
direct legal interest, by the operation of a legal iMW* 
mcnt. His mortgage gives him an interest at law. I# 
aware, that after receipt of the sums in demand, Aif 
inay perhaps be a remedy at common law for recowif' 
the amount of the order ; that an action for monff IP 
and received, may be maintained. But let it be 1900 
bcred, this species of proceeding is, in its nature, Sl9^ 
bill in chancer}'. It admits of every equitable pbiM^- 
defence : set-offs, prior liens, and the whole trafairof^' 
currcnccs which would give the defendant a title tifli^ 
fer others to the plaintiff. The cases from Veze7Sfli|P^ 
and Vezcy Junior, arc nothing more than chanteif id^ 
sions respecting funds in possession, and Powel 1^*0^ 
'2£9p,7jj. don,^ is an authority directly in our favor. TIlM^ 
witness had a power of attorney to receive duUVMw 
when recovered, so that the fund out of which V/f^^ 
was to be pud, would have come into his oomi 
your honors will please to observe that Lord ] 



bB him, if he was willing to permit any other person to ^^^".^803^ 

receive the money, and it was not till he refused this, 

!hat he was deemed incompetent. The reasoning then 

if this decision is, that had the money gone into the hands 

if another, the witness would have been admissible, 

limigh it is certain, his letter of attorney would have war- . 

uted him in demanding it from the receiver. The pos- 

ibility of intervening claims, did away the objection. 

with us, as the money was not to go into White's 

ttids, but into those of another, he stands precisely in 

ke situation of the witness in Powel v. Gordon, had he 

bnsented to another's receiving the sum in litigation. 

It has therefore, it is presumed, been shewn, 

1st. That objections run more to the credit than to the 
Inpetence of witnesses. 

id. That to affect the competence, the interest must be 

3d. That White's interest was not immediate, but con* 

4th. That admitting a lien to have been created by the 
ider, that does not vary the matter. 

5di. That the very case of a creditor witness, was put 
fthe whole court of King's Bench, and allowed not to 
Mcifttcitate ; and 

Wi. That the inferences, unavoidably resulting from 
^ttwel V. Gordon, fully establish the competence of 

*The reasoning antecedently used on this point, cannot, 
ifrthbught, be better concluded than in the words of 
Ir. Fonblanque,^ when speaking of the rule respecting • ar^b.457. 
tt interest of witnesses in causes, on the trials of which 
tefarc brought to give evidence, it is, he says, *^ the 
'"'ttost flexible in its application of any." 
'THe next objection to which it is necessary to advert is, 
Tintt parol testimony of ownership was inadmissible." 
br-'tfais it has been relied on, that the register act has 
ide it certificate of registry a legal record. It surely 
9 neVer be imposed on me to demonstrate that such an 
isCramenty or the book in which it is kept, is not a letrai 
3 D 

ara cases in the supreme court 

N|W-YORK, record, in the technical sense of the word, importing a vie 

' rity, which admits not of being controverted or substao 

tiated by oral proof. I shall only observe, that in a case ii 

Espinasse^ Lord Kenyon ruled, exercising acts of owner 

ship, paying of men, directing the loading, &c. were suf- 

_ iicient testimony of interest in a vessel. For, in com- 

*Amcryv.Ro-merciaI contracts, the highest degree of evidence is not 
always required, i he purpose ot the register act was not 
to make the proceedings under it of record, but merely 
lor stated reasons, to enable to collect the duties on toi^ 
nage, by ascertaining what ships belong to foreigners, and 
what are our own. 

It is thirdly insisted by the defendanU, that as the aban- 
donment was made in writing, and notice to produce it 
not given, parol proof of the abandonment ought not t^ 
have been received. 

It is worthy of observation, that the abandonment is ao( 
denied ; it is only asked that we should not be permitted 
to shew it. It cannot be argued that it is indispenaabit 
to make the abandonment in writing. We admit it to be 
usually so done : that however is nothing more thanmal* 
ter of caution. It was, on that account, done here. Bat 
t^^ere is no case to shew we were obliged to do it- If ^ 
we may prove the contents, or effect of the letter of abai^ 
donmcnt, without notice to produce it, because it.!*** 
becomes a fact, like every other, to be established byfi^ 
rol testimony. In order to decide on the neceaaitf Jl 
giving a notice to produce any written paper aerfw 
on the opposite party, we have only to call to inp4» 
the reasons why it is in any case required. They aiC|ki$ 
a misrepresentation should be made, of any fact, w^A 
constitutes ihefoundation of the actioji, and which, thoOK 
in possession of the opposite side, yet being unaeccaaHf , 
to his case, might not be brought by hinu When, tbt^ 
fore, the contents of the paper in question arc 90^;^ 
foundation of the action, a notice to produce it is Mk ^ 
superfluous. Therefore, in cases of notices to quim^ ' 
tices ta a magistrate previous to commencing m 9iff^ 



Mat him ; the demand in writing of a warrant before 
xeeding an officer ; orany similar case, notice to produce 
! notice, need not be given. Jory v. Orchard, 2 Bos. & 
1. 39. So an attorney's bill, on which an action has 
m brought may be proved without notice to produce 
one delivered under the statute. Anderson v. May, 
los. and Pul. 237. So, payment of rent by a tenant in 
session can be established, without notice to produce 

receipt. Run. Eject. 289. Because, wherever the 
tter is collateral, parol evidence is adequate to every 
pose. The idea of this necessity of giving notice, has 
sen from a confounding of cases. From mistaking that 
le the foundation of the suit, which is only used in proof 
the demand. It is but a mere formality, on which the 
bt of action by no means depends. 
Another reason may also be offered to evince the nu- 
loriness of a notice to produce the letter of abandon- 
nt. It was sufficient to establish it by the copy offered 
ihc trial. Wherever, a number of copies are simultane- 
ij madje, they are in law, all originals. Because, be- 
created uno flatu, one is considered the same as the 
w, and may equally be read in evidence without notice, 
tlicb V. Danvers, 1 Esp. 456. So the counterpart of 
cntures, Burleigh v. Stibbs, 5 D. & E. 465.* 
Saving, it is hoped, obviated the three first difficulties 
DDF retaining our verdicts, the fourth which presents 
tf, 18, " That there is no proof of the property being 
be property of a citizen of the United States ;" or in 
tr words, that the warranty of American citizenship, 
I not been complied with. 

b combatting this objection, we beg leave to state,that 
ddi country there are three different kinds of citizens. 
St Those who became so at the declaration of inde« 

^ Those who, since that period, have become so, by 

4 Those who are so by domicil and employment, 
llnis much being premised, it will be necessary to call 

Ittentipo of the court to those doctrines, on whick 


Nov. 1803. 





* In that ease 
the counterpart 
signed by the 
defendant only, 
was allowed to 
be given in eri- 
dcnce to prove 
an apprentice- 
5luD to him bf 
a third person, 
merely because 
it recited such 
an indenture. 


^^SSr ^^?^ the law of warranties has been held to rest. Accon 

^'^^^^'^^' to those, it suffices if the warranty be complied wit 

^^ conformity to its letter j without any regard being ht 

pjjlj^j^ its spirit. In consequence of this principle^ an opjx 

jj/[^ maxim has been sanctioned, that no virtual fulfilling 

' warranty can be allowed. What then, in the present i 

can be deemed to fulfil the warranty of American citi 

ship ? Will it be pretended, that the person warrai 

must be a citizen, such as those who became so at th 

claration of independence i This will hardly be said i 

should it be, there is no case to warrant the assertion 

there any decision, which declares he must be a cit 

by naturalization i none ; for this would exclude all 

ginal citizens. Neither can it be insisted, that he i 

be a citizen, with all tlie rights and privileges of asi 

rican. Because, a naturalized American, one who 

not become a citizen by the declaration, is not eligiU 

the office of President of the United States, or that ofX 

emor, to any individual state. Both positions arecqu 

untenable. Of what species of citizens, then autf 

♦ Ramsay ▼. IT- be ? One by domicil* and employ. Why ? Because, 

Term" 799. u'.* embraces every class of citizens, and answers eveiy ; 

w^M^ofA-P^^^ °^ ^^^ warranty. Let us for an instant recurto 

■***'jf *" pro- reasons on which a warranty is given. It is to asuof 

complied With Underwriter, that the subject matter of the policy is 4 

Iromthcawir- . i-i»i .• ri» o. 

ed'B domicil be- "can, and withm the protection of the law of natMM 
K counl!^;, has been long ago settled, that personalties foUow thf 
*!;'*"?** , u ^^** son* On this account domicil for ever resrulates diltl 

aamtteu ne was , ^ 

in American tion of effects. That the principle is peculiarlr idip 

citizen. Mu. ^ . ^^ r - • • rJt / ml. 

Kent J. to m matters ot prize is notorious. The merdmiol 

a friend, resident in the country of an enemy, is IttU 
confiscation ; for it is the domicil that stamps the ntA 
character. So the employ of a master of a slup invaiil 
fixes the nation to which he belongs* The EssbdB 
Rob. Ad R. 16. The Vigilantia, and cases then fi 
ibid 1, The Harmony, 2 Rob* Ad R. 3S2, Mr,JM 
meyer's case, ibid, 41. Mr. Johnson's, ibid IT^thfl 
of the sloop Chester, ▼• Owners of the EaqperimM^ I 
41 f The case states Peyton aresidenty 



' American vessels, naturalized from residence and em- NEW-YORK, 
o\\ In this view he is beheld by the admiralty court in K^'^y-^L/ 
Tassaui and the property they acknowledge as his, they *'»:y|oa 
cquit as neutral. Every protection then lias been aflford- -Ih*^' 
i which the warranty was meant to confer, and Peyton, 
I the eyes of a foreign tribunal, and according to the law 
r nations, stands confessed an American citizen. In 
.'CiT part of insurance law, the same principle is to b« 
nod. If within the letter of the clause it is enough. 
. ship was warranted well, on such a day, she was well 
6, but lost at 8 o'clock, and held a compliance. ^ So ' Biacklntric 
art warranted the property of an American citizen. Not & E. 300. 
cidzen with all the rights and privileges of an American 
tizen ; not even a naturalized citizen; but a citizen ade- all the purposes of protection, intended by the 
nrant}', a citizen de facto, though not de jure. I am 
rare the ground now taken is, in cases like the present, 
iffecdy new. It is not, however, a ground on which this 
Hirt has never trodden. We but follow their footsteps 
I other causes. In Goold and another v. Gracie, June 
'• 1798, under a clause in a policy, that if an assurance 
tt effected in Europe, the premium was to be returned, 
educting one half per cent, it was held, unanimotisly^ that 
policy de facto was within the meaning of the words, and 
leinsurer exonerated, though the policy was void ab in- 
10, and, therefore, a recovery could never be had. So, 
J Buller, J. in Wilkinson v. Payne, 4, D. & E. 568, a 
ttTiage de facto, was said to be sufficient to entitle to re- 
>TiBr on a promissory note. 

Ify however, the court shall be against us on this princi- 
l^iStiU we shall contend that the citizenship of Peyton is 
ktantiated by evidence in the cause. 
ft is an acknowledged action, that every .man's ti^timoiiy 
io be received or rejected in toto. You cannot cut and 
Mde it. Take one line, if it suits your purpose, and then 
]iBct the next ; his alienage is before the court, from his 
niconfeMsionf and so is his naturalization. If you believe 
Hi on his word that he was an alien born, you must believe 
Ql on his word that he has been naturalized since. As a, 



llie same 


NEW.YORK, man is charged , so he sliall be discharged. If his own fi 

Nov. 1803. , . , J - . • II- J 1 *• 

V^p^V'-^i''' clanition is to determine hnn an alien, his own declarati « 

Peyton shall shew hhn an alien naturalized. His acknowlecfj 

niciit of his foreign birth is nothing more than presumpti 

r.vVfemr of his being now an alien. He might have bee 

one by birth, and yet have become a citizen at the Dccla 

ration of Independence. General Gates, Governor Clin 

ton, Washington, himself, were all aliens by birth : bcin| 

therefore born an alien, is no more than presumption of hi 

being so now, and presumption may always be rebutted bi 

presumption. Tysen v. Clark, 3 Wils. 541,Run.Epjl 

^()2. Allowing, then, for argument's sake, tlie dcclarati« 

of having been naturalized to be laid aside, what presump 

tion docs the case aflbrd to counteract this presumptive efi 

dcncc of alienage. First, there is a general reputation 

the plaintiflTs l>eing a citizen. It will not be denied, thatu 

many instances, reputation is, of itself good testimony. I 

is adequate to establishing* a pedigree or a marriage, pel 

Iloh, C. J. in Dr. Harcourt's case. Yet in each of those; 

certilicates may be adduced, and the doctrine of Hoh v 

now allowed in Kngland, tho' registers in both those caM 

«ii*e ordained by statute law, and certificates of each ma; 

hi", and are every day adduced. So to ascenain whovi 

the pa(ron of a living in the Bishop of Mcuith, r. Lon 

l>liss;ird, 1 Wils 21 j ; presumption was allowed. Ifew 

tliure was a country in which presumption of citizeofllij 

nnglit to be conclusive, it is this. I may again inttfttB 

General Washington ; nay, your honors who now A Oi 

the bench, liave nothing else to offer ; you have no natd 

ralization, no document to shew, but the places yoail 

and general reputation would give to you the charadfl 

and to your children a title to the estates you may kvn 

No with Peyton, were he to die to-morrow, bis issue wod 

take his real estate, in right of his citizen father. Sli 

then, his reputation of citizensliip be good to support' 

claim to land, and yet be inadequate to one against aoM 

derwriter r Are Ihree thirds of the community tobecfll^ 

from the only mode l>y which they ever had, or tan Uk 

a possihility of substuntiatbig their right to dw AmeilkiSt 


? If more proof be required of the plaintiff's citizen- NEW-vork, 

it is afforded, and that by the case itself. v^^I^I^ 

fore it is attempted to evince this^ I shall beg leave to 

wn tliree maxims. 

. That all things done, are presumed to be rightly 

Griffin T. 

That situations occupied, shall be supposed to be 
y filled. § SfjuiiMip^ro.' 

That fraud and misconduct shall be imputed to no v. Morris, 2 * 
: If neeessary, I shall first substantiate, and then ap- v?S. 2V5. " ^ 
«se principles. fax^'^at'sS: 

ris, C. J. The principles will not, I fancy, be dis- ^Pj^9^; ^"**^ 

• cited, Cowp. 

DCS. In order to apply them, it \vill be incumbent to ^t'chaftic t. 

: to the testimony in the case. f^f**' ^ ^' *^ 

nn evidence, that the plaintiff comnvamlcd an Amc' 

oesiel carrying guns : in order to capacitate him for 

)mmand, he must have been antece<iently proved, to 

itisfaction of tiie oiliccrs in the Cnstom-House, an 

can citizen ; for none, but an American citizen could 

Y such a station. If so, then, we are fully within two 

maxims, we h.ive complied with tliair letter and 

pirit ; it is therefore to be presumed that what h;tn 

.one, was rightly done, and that the situation whicli 

n did fill, was legally occupied. The inference con- 

itly, becomes clear as day, that the plaintiff is an 

can citizen. If we hesitate for a moment in pro- 

ing him so, we violate every one of those three max- 

'hich have already been conceded. First, we must 

ne, that what was done, was not rightly done : sc« 

', that the station filled by the plaintiff was not Ic- 

xx:upied. We cannot even stop here ; we must go 

J not only presume fraud and misconduct, but take 

tnted, perjury upon perjury : all the penalties of the 

sr act incurred, and a long connected system of 

ireairing, as if by vocation. These are the mild in- 

ea auggested on the part of the defendants : they 

ich as your Honors will surely never make ; we 

rc.are peculiarly justified, on asking for those for 


^*Not ^ST!^' which we contend, because when reputation is acoo 

V-i-s--*^^ nied with facts, it is good evidence. Per Grosae 

*'T° Roe V. Parker, 5 D. &. E. 32. Here then was re 

•fie^sMne ^^°" accompanied with the fact of Pejton's having 

Dcuitid *^^"^^*^l ^^ American armed vessel. His citizensl 

- therefore established — 

1st. By his domiciland employ. 

2d. By the evidence of White. 

3d. By reputation. 

4th. By reputation accompanied with facta.' 

5th. By necessary and unavoidable presumption. 

The last point is confined to the vessel, and resolvt 
self into the abandonmeuts having been made too late 
after an acquittal. It will be sufficient on this, to rem 
that whenever a legal right, becomes once vested, n 
exercised, subsequent occurrences do not affect it. 
the capture, the plaintiff had a right to abandon, the 
quittal pf the vessel, as it does not appear to havt b 
Inown, when the abandonment was made, cannot inv 
date the right. The only question then is, whether it^ 
In due season. On looking at the dates of the diffei 
circumstances, it will be found that there was an in 
vention of only 29 days, from one period to the od 
This, it is presumed, cannot be deemed too greatalci 
of time, considering that the news of the captnitf I 
have travelled from the Bahama Islands to Charlestiq% 
from thence to New- York. Upon every ground, dicffff 
it is trusted the verdicts that have been rendercdBlriB 
confirmed. . . ., . 

Pendleton in reply. The cases of Barlow v»lKff 

George v. Pearce,and Rex v. Fox, proceed on thisgim 

that a person who is a witness, shall not, by a sqiwvf 

act of his own, deprive others of the benefit of ^|| 

•Thititthc^^^^y** The principles of admissibility are lM|;lA 

J™|;^|^^*^ft*^« better laid down than in Omichund v. Bark^^t ISW 

I That case in no instance of a person, not a citizen by birth: 1^1 

admndbiUty of ralization, being held an American citizen : aiiAifiif 

Kcvi^g"^ thei^crence from his employ, he may qualify himidlMll 

Christian rdi- niastcr of a vessel by his own oath. None of gnat-^. 



have been answered. In peculiar, that against parol ^N^fYS* '^ 
nee of the register, for, if congress chooses to make ' 
cord, this court cannot deny it all the privileges of 

'ingston, J. now delivered the opinion. of the court, 
ese are motions for new trials on the part of the de- 
atSy and among the objections to the verdict, it is al- 
1 that George White, who was examined for the 
iffs was an incompetent witness. This objection ap- 
to me to be well taken. He was a creditor of the 
iffs, who had given him an order on his agent, Tho- 
^apier, for the amount of his debt, to be paid out of 
onies to be recovered on the policies, on which those 
nrere brought, and had promised him the debt should 
id out of the same. This order was not accepted, 
e witness said ^^ he expected to be paid according- 
He added that, whether the plaintiff recovered or 
le should look to him for payment, as his right did 
^pend on the event of the suit. Here was an intent, 
opinion, sufficiently direct, and dependent on the 
of the cause in favor of the witness, to render him 
ipetent. The order he had obtained, amounted to 
iignment of this property, to the extent of his de- 
; and the agent, after its exhibition to him would, 
peril, have parted with it to the plaintiffs, or to any 
person. It is not a satisfactory answer to this dif&- 
to say that White still retained his remedy against 
lintifr, if this fund failed. If land be assigned, with 
ant on the part of the obligee or assignor, that he will 
ramount, in case it be not recovered from the obligor, 
the court permit the assignee to be a witness in a 
k the land. I think not, and yet I percieve no great 
QCc in the cases. Nor will it answer to say, that Na- 
ajr have had aright to appropriate this money in ano- 
«y. This might have been shewn on his examination ; 
I was not done, we are not now to presume it contra- 
beezpcctations of the witness himself, which no doubt 
Compromises made to him by the agent, for with- 
mt tsimnce of the kind, he would have abandoned 
3 E 



^NoT Tto^ every hope from that quarter. No doubt can be eati 
^ — — ^ tained of Napier's being the plaintiff's agent to recovc 
this money. The bill was drawn on him, to pay outo 
this fund, which implies, an auihority to receive it. He 
had the policies, for he made the abandonment, and the 
. case itself gives him that appellation. It was also said on 
the argument, that it was not certain the agent would ever 
receive those funds, and until that was the case, ^Vhitt 
could have no claim on them. For this very reason, te 
had an interest to place them in the agent's hands, thathii 
debt might be satisfied out of them. It is certainly dan- 
gerous to permit a person, who has an interest, or who,oa 
good grounds, thinks he has an interest in a particular iimd, 
to testify concerning it. In case of the insolvency of Pey- 
ton, there can be butlitde doubt, that he might havcGO» 
pelled the agent, in a court of equity, to pay his whole d^ 
mand out of this money. 1. Vez. 332. 

If a man promise a witness, that if he recover lands, he 
shall have a lease of them, this excludes his tCBtimony. i 
Keb. 576. So, if a person be promised payment out of 
the sum in controversy, which is the case here, he ouj^ 
to be excluded, unless he will release such interest. As 
that was not done here, I think a new trial ought to be had 
with costs to abide the event of the suit. 

Lewis, C. J. There is no difference of opinion tmoQpt 
us in this cause, but on the point on which the court Ime 
act aside the verdict : viz. the competency of Mr. Wltei 
the witness produced on the part of the plaintiff. I * 
not concur in the opinion that he was incompetent. 1^ 
bill drawn in his favor, on Napier the agent, has ncvcrfce* 
accepted, nor has the fund out of which it was to be pd^i 
ever come to his hands. White, then in my coiicqitk% 
had no interest in this fund : the doctrine of lien has 'flC* 
ver, that I know of, been extended so far as to veal ift^^ 
tcrcst in one man, in a fund, which may or maynotooi^ 
into the hands of another. Neither of the cases rdSni^ 
go to such extent. In Row v. Dawson, Swinbum wvl^ 
possession of the fund, and Lord ChanceQQr Haidflft 
considered the bill of Gibson, as an assignment to ^ 


nt of the draft. In Powel and Gordon, the witness NEW-TORK, 

iimself the agent who was to receive the fund, by vir- 

f a special power for the purpose, and refused to let 

into the hands of another, which had he assented to, 

1, we are to infer, have established his competence. 

r case the power was in the hands of a third person 

[y ; and therefore, within the spirit of the decision in 

I and Gordon, White was a competent witness. 

President, Directors aii(l Company of the Uni- 
i Turnpike Road against Tlionuis Jenkins. 
amo against the same, in tliree other actions, 
an act of the ;3d of April, 1801,* certain persons * ^•^^*- 
ncorporated, for the purpose of improving the road and Directors 
!4^ew-Lcbanon to Hudson, under the name of " The whcn^^^J^aUy' 
lent, Directors, and Company of the Union Turn- ^J^Pp^,"^|;; 

fnnrl *' ^o execute acu 

^^^"- ordered to be 

the second section of the act, it is ordered " that done by the 

President, Di- 

crt Jenkins, and Elisha Williams be, and they are rectors, and 
by appointed commissioners, to do and perform the a promfJe' toT 
ral duties hereafter mentioned : that is to say, they tc*r^,^y*o«ie*rr 
I, on or before the first day of May next, procure ^V'^"^ ^wrd-' 
books, and in each of them enter as follows: JFi, mg to the order 

, ., - , y» of the Prcsi- 

ic flames are hereunto subscrtbcd^ do^ for ourselves^ dicnt;mA\y\Tcc' 

II. .. ^ ' . ^ **iD tors The inter- 

our legal representatives^ promise to paij^ to tne jrre» est ac<juircd by 
IT, Directors, and Company of the Union Turnpike, '^^^^^^^f^,^' 
/, twenty-five dollars^ for every share of stock in ^i^^^^^^^^^^ ^" 
company^ set opposite to our respective names, in such company, is a 

f • w II t t -III . f S'xxi consider- 

ler and proportion as shaii be determined by the said ationto support 
ident^ Directors, and Company ; and every subscri- gai„^ ulc sub- 
ihall at the time of subscribing, pay unto either of ^^/jjj^'^*^ J^* 
aid commissioners, the sum often dollars, for each >" «"ch «;«• m 

, . • . 1 11 ^^* President, 

i SO subscribed ; and the said commissioners, shall, L>irectoiA and 
on as one thousand shares have been subscribed, order,^ is n(H 
B an advertisement to be inserted in the public a"''^*! ^uppon 
ft^pqier, printed in Hudson, giving at least ten days ^proS^s^ry"*' 
C ofthe time and place the said subscribers shall i'>te Where 

- . r I ' r %' 1 1 II tDcrcarc some 

4or tne purpose ot choosing nve directors, who shall good counts 
ock-halderS| for thjc purpose of managing the coj^ wd a° gaierai 


^ Nov^g?*^ " cems of the said Company, for one year ; and the d^ 

Kt^^^^i^y *'*' of choosing the said directors, shall thereafter be the aii- 

pike^a«ip!mf " niversary day of choosing directors ; and .the directon 

Tenkins ^^ elected by the votes of the stockholders, shall immcdi- 

The aau:e « atcly proceed to the choice of one of their members fcr 

The lamc. ^^ President ; and the said President and Directors shall 

^ *^ and may meet from time to time, at such time and {dice 

whole, if the c- " as they may by their byeJaws direct, and shall hive 

bcai \m the '* powcr to make such bye-laws, rules, orders and reguli- 

iy?!hcv"r^^^^^^^ w^^^ the constitution of thiior 

iniy hrr.Tirnd- ** th;i United States, as shall be necessary for the wello^ 

judge's notes* ^^ dering of the aifairs of the said corporation : ProvidH}, 

million in'ar- " that, at the election of the directors, every person sbK 

rnen^* ^" **" "havea number of votes equal to the number of sham 

^^ owned by such person, if such number shall not exceed 

" fifty, and one vote for every three shares owned by suck 

" person exceeding fifty." 

By the last section it is enacted, ^^ That it shall be lav- 
** ful for the said directors, to call for, and demand, of, and 
^^ from the stockholders respectively, all such sums of nun 
^* ney by them subscribed, or to be subscribed, at sndi 
^^ times and in such proportions as they shall ace fit| under 
<' pain of forfeiture of their shares, and of all preri- 
^* ous payments made thereon, to the said PresideBti IB' 
*' rectors and Company." 

The defendant had subscribed for 280 shares, but| atd0 - 
period of writing his name in the book, as directed kf Ae ; 
first section, the SlO therein ordained to be, at that iW'l 
paid, were neither so paid, nor were demanded* b*! 
orders for paying in 85 on each share subscribed^ 
made, with which the defendant refused to complyf-v^ 
for their amount the present actions were brought. 
first count in the declaration stated the passing ofdisiK 
and incorporating the company. It also set forth Ac*^ 
cond section, omitting, however, that part reqiiirfa|f^^ 
payment of the SlO on each share at the time of 
tion ; it went on averring the compliance with ifaetif^] 
sites of that section, the subscription of the dehndttt^^i 
of 2900 shares ; it stated the election of a 


!Ctor8, and two orders made by them for payment ^'^^'Sot^S,'* 
instalments, of S5 cash, on each share subscribed, no- \^^^y^^L/ 
and by reason whereof, &c. J/k1 C^^V 

he second count was in these words« ^^ And whereas, , XTz 

' ' Jenkins. 

o, the said Thomas Jenkins, on the seventh day of i he Mni« 
iril, 1801, at thecity of Albany, in the county of Alba- The same. 
', madehis certain promissory note in writing, by him, — — — — 
his own proper hand-writing subscribed, the date 
lereof is on the same day and year aforesaid ; whcre- 
' the said Thomas, promised for himself, and his legal 
iresentatives^ to pay to the President, Directors and 
impany of the Union Turnpike Road, the sum of 
5 for every share of stock set opposite to his name, in 
:h manner and proportion, and at such time and place, 
should be determined by the said President, Direc- 
ts, and Company, and the said Thomas did then and 
;re set opposite to his name, fifty shares," with an 
rnent of their determining tliat he should pay S5 on 
I on the 10th of September, then next, with notice^ 
iity, and assumption* 

lie third count was in the same form on a promissory 
I for 230 shares. 

he causes were tried at the Albany circuit, in January 
and general verdicts found for the plaintiifs. 
fter this, the defendant gave notice of moving in ar- 
of judgment, and assigned the following reasons : 
t. That the first counts in the declarations in the said 
ea, being founded upon the statute, do not set forth 
the said defendant at the time of subscribing the said 
aription, paid to the said commissioners, the SlO on 
. share, by him subscribed, according to the regulati- 
)f the said act, and that it appears by the said counts, 
die commissioners therein niamed, did not, as soon as 
thousand shares were subscribed, in the manner di- 
ad by the aud act, proceed to give the notice by the 
Jttt required, for the purpose of chosing Directors, 
chat no order and determination of the President, Di- 
watjVnA Company ^\n the said declarations mentioned, 
md in the said first counts, for the payment of any 


Nov" 1803. ™oncy, upon the shares of stock, therein mentioned tv 
have been subscribed ; so that the defendant never be- 

Union Turn* i* 1 1 

^e Cunipuiy camc liable to pay any such money, and that the promisa 
Tcnkini. '^^ ^he said first counts stated, arc void for want of ccnsi- 
Ihcamc deration. 


''^""*^- 2dly. That the second and third counts, in the dedan- 
tions in the said causes, arc founded on agreements or pro* 
mises in writing between the parties, as on a note of hanli 
which is not within the statute, &c. ; and that the saidcooM 
do not set forth any good or valid consideration, upoi 
which the said agreements in writing were made and givesi 
Immediately after service of notice of the above resi 
sons, in arrest of judgment, on an affidavit stating, tint 
the evidence offered at the trial, was under the first couBtl 
in the declarations, and calculated to support them inpv^ 
ticular (the second and third counts not being read tock 
jur>% nor referred to by the counsel) the plaintifis gave bo» 
xice, of a motion, to amend the verdicts in the scveial 
suits, from the judge's notes, so as to make them apply OO" 
ly to the first counts in the several declarations, tad to en- 
ter verdicts on the second and third counts for the defead* 
;mt, and to amend the postea and rules for judgmental 
tcred thereon, in conformity to such order as the coBt 
might make. ' ' 

Champlin for the defendant. The first objectiOB i% ^ 
that the ten dollars, ordered by the act to be paid, ini:iil^' 
done. The contract then, on which the action is fsQli^ , 
ed, is not according to the order of the statute. ■I»»ll''^ 
next place, the orders stated by the declaration to haveb*'^ 
made for payment of the sums demanded, arc notin^iil^*' 
suance of the law. By that, the order is to be by thfrA^ 
sident, directors, and company ; the declaration letn Ut^ 
one, by the president and directors only. This h'ftHikv 
for as the plaintiffs have a particular authority, tbi/ll^lP'! 
to shew a strict Lteral compliance with the law, by IAW^] 
ihey are authorized. If they have aright taf^onilf^ir j 
company in their orders, they may the directiifi,''iJltf4i^ , 
the president alone may govern the aflfairs of dteuNplrilr j 
tion. The two last counts are plainly bad : 'thcgr'^i^^^W 


»romis8ory notes, under the statute, where those notes ^nov'TSj.*^* 
ippear to depend on a contingency. The declarations, ^^"^"v";**^ 
herefore, on them cannot be maintained. Carlos v. Fan- pike Companf 
ourt, 5 D. & £. 482. For a note on a contingency is not jcnWnR. 
. note within the statute. Not that such a note can- li»«^»»J*«n« 
ot be declared on, but then it must be as a special agree- The same. 
Bent, and the consideration set out. As to the notice to "^ 

JMnd, it is before the court ; they, perhaps will not be dis- 
osed to allow it. We object, however, that the ap- 
lication is too Jate, because a term has intervened, and 
be evidence which was given in one count, would equally 
ipply to all. Yet, if we are wrong in this, if the court 
ikmld give leave to amend, they will not do it, without 
ndering at the same time a new trial. Tomlinson v. 
Blacksmith, 7 D. & E. 132.* • in that cue^ 

_ -^ , , the amendment 

i^llliams and Van Ness contra. The application on wa» by aiicrinf 
the part of the defendant, is to amend the verdict from^asmaUi© 
liom the notes of the judge, so as to apply. the evi- ^J^^^*^^*^"^ 
dence to the first count only, and to enter verdicts forn'*^"^^**"^^^- 

•^ ' ^ _ ^ cd for, on the 

the defendant on the second and third. It is evident face of the de- 
tkitthe testimony could have gone only to the first, for court said, in 
the two last are stated simply as contracts, though the haVthc^t^cn* 
fcrm be somewhat like that on a note of hand. They fiJ^^"^ j^,';^^^?;^ 
were engagements to an organized company, and it wjis his country ha« 
nly in relation to that company, that were taken; they without send- 
Kost, therefore, comport with the defendant's liability to!^othcrjiiry, 
Att' company, under the first count. When a general 
^ict is given, it is almost, of course, to amend, if that 
Yttdictdoes not correspond with the judge's notes. 3 D. i^ L^y!" TiurcT 
£.6594: So in Edduwcs v. Hopkinsjl, it was ruled, that if ^^"^'i^hat" 
diBevidcnce be onlv on a good or consistent count, and cii»c. the vcr- 

-« * . diet wai OD 

webe otiiers bad in point of law, a general verdict given ore, and no no^ 
Cmhe whole declaration, shall bo amended according to the other! thd 
tlb judge's notes. Even in a criminal case it has bcH:n done, ^"{{owS 
*id the criminal executed accordlnc: to tlio auienduient. r*^*^*" V^*"*^ ^ 

^ ^ brought, and 

Wint Y. Astle, Doug. 370. thuas&IgncdM 

..Inlander, it is true, where some counts are for words payment of 
^actionable, and others for words actionable, on a gene- ^°f Doujr 376, 
^Tcrdict, judgment will be arrested, but even then thc^Yj^»,^^|j;'^ 


^N^'^to^^' court will order a vcniro tie novo to a>sess damages on 

V^p-v^^h^ gootl count. All .'ippliciition like; the present, is never 

|S? CoSjSTy '^^- '»» I D. & E.* it is said an amendment will be or 

- J: ed even after error brought, and the record sent back J 

Tbeiame the Exchequer Chamber. Tiie same principle is four 

The nme. Taj'lor V. Whitehead, Doug. 746 -t H we arc successfi 

* the point of an amendment, all objections taken to th 

iict/78"7pcr"" cond and tliird counts arc at an end. But even sh 
S^\*aiKd^^ these be objected to, we contend they arc good. Tb 
not apply to a- strnment declared on, is* an eneaorcment in writinj 
verdicts. It re- which the defendant promised to pay. The being a 

fates to amend- . •^' • i j ^ • i ^' l 

ing mistakes by 1" Avriting IS cnough, and purports a consideration tnt 
deX'X^e none be Stated. 2 Black. Conim. 446. PiUausv. Van! 
there i, somc-rop. 3 Burr, 1670.§ 

thing to amend * » j 

by. A» if he Kent, J. That doctrine has been completely overlr 

enter agamst * ,. . "^ 

an executor, in a casc whcrc Skynner Baron delivered in the Houi 
Wi» Dropriia, Lords the unaiiimous opinion of the twelve judges 
bcmL^te^toris Caincs. Amicus curia-. Rann v. Hughes, 7. D. & 

t The decision referred to, is very difTerent. A verdict had been femi 
the dcfondant, a motion for a new trial on account of the verdict's I 
against evidence had been denied, after which the plaintiff obtained am 
shew cause why he should not be allowed to enter up judgment on that i 
because, notwithstanding; the finding of the jury, the jpoint of law wai.i 
vor of the defendant. The court said this being a motion in the vaan4 
for an of judgment, was never too late before judgment entered q 

5 I'he two books cited, will certainly warrant the position of thcki 
counsel, but the parts referred to are not taw. In Sharingtoa ▼. StraMflfl* ^ 
3,8 it is said, «* By the law of this land, there are two vrays of naoM 
•* tracts, or agreements for lands and chatties : the one It by wortaimm 
« the inferior method ; the other is by writing, which is the fopcfitei * 
* because words are oftentimes spoken by men unavoidably HidwHIitf 
** bcTatioD, the law has provided that a contract by words shall not bfildi 
'* nut consideration. But where the agreement is by deed, there fa Mff* 
« for deliberation ; for which reason they are rcceivt^ at a Ucq fioal M 
** party, and are adjudged to bind the party vvitlinut eTamitiiii^ ^^^P^'^ 
« cause or consideration they were made. ' 'Ihc rc^dtr will ohaej-vcr ^^1 
Plowdeu speaks of contracts by writing, he means by deed under sol ' 
is more explicitly declared in the ca^e of Rann v. Huj^fa^. Baroo 6kjKB^ 
says, " All contracts are by the law of England dUtingutshcd Inia i^tetm 
■* by SPECIALTY, and agreements by parol: nori^ there any vueh^M^I 
** a.s ftomc of the counsel have endeavored to nuii^Uin, as contracti in w^ 
•* If they are merely written, and not sPtcMLLy, tBty are rA»ot,l| 
" consideration must be proved " In FilUnav. Van Mirttjpi WiUvfHJ.^ 
ed, that if a stipulation, which was only by words, was, accor' ' « ' i« 

law, binding without consideration, a fortiori, so mudt Jbe an j>£r . : i i% 

ing. Bat the civil law itself will not warrant thlji rt^aionmf . j ho otil^ 
force of a stipulation arose from the words Wmg spoken in ^ prtiiln i 
before a public officer ; i»r, if that form was not adhered in, the sdpgktl^ 
vmd : therefore if to the questioo rAoMinTs^tb^ patty «tipiiUtirvg hiiJiif 
cd SroNnro, the stipnbtion was a nnlUty. 1 am th^tforc dkpotcd (^ 1 
that the itipnlation was taken in the manner «f qut recogni^anccii umI 
acknowledged became a species of record. I airi pccullaj 1>- iu^ttced lo tU 
nlon, from the manner in which they are now ento^cd amang the vti i 
oouit, in those of the English tribunalsy which follow the cltrU eod^ | ^ 


Van Neas. A written contract without conaldersuioli new-york, 
ty be declared on as it is, vJI^IJ^ 

Lewis, C, J. This court has decided that a contract M"**'" 'r«>ni-. 

1 • • « , pike CoopiUiv* 

erely in writing, does not supersede the necessity of a v. 

nsideradon. '/^?JllSc 

Williams. That the contract was not consummated by n,elime. 
yment of the g 10 required by the act, is also urged as a » 

ason why the action cannot be maintained, but surely 
e commissioners might have dispensed with this. As 
the objection that the promise wan given to pay such 
tm as the President, Directors and Company should or* 
sr; and that the order was only by the President and 
irectors, it can hardly bethought the defendant ever 
iped to rely upon it. The President and Directors are 
K agents. of the company, duly chosen by them to physi* 
Hy and legally express their will. The order made by. 
le President and Directors, is an order made by the Com- 
loy. This follows necessarily, for the President and 
Sicetora are by the words of the law, to manage the con- 
ns of the company to act : when they were chosen, the 
Mtrs of the company to act, were transferred to them, 
id Aia being under the letter of the statute, they were 
eai^y persons to make the order. Had it been com- 
U widi, the defendant would never again have been 
Dedupon for any thing paid under it. 
ftariaon in reply* In support of the notice in arrest of 
Hment, nothing can be more clear, than, that where en- 
Vdannagea are given, and one count is bad, the judgment 
B#t be arrested. But in this declaration, there is not 
t^ood count, and this apparent on the £ace of the re- 
nlwicfaout any aid aliunde. On the first count, the 
Ikdoti, as to the order, is certainly fatal. The act ope- 
i%iUke a charter, specifies a particular manner in which 

', thit the reduction of a contract into writing did not, even 

_^ ofthe Roman Jur^nidcnce, preclude fnim entering into the co:i- 

001 which it was made. By that xyiitem the ubligatio litcmriun ari- 

~ I contracts ex Hterii was invariably contestible hi the three fttl- 

_^^ lit* .When the consideration was not expressed id. Kvcu then 

A^ffeirt* ' 3d. In all cases of loans of money, by the exc<^ptio dc non 

^'' which threw the onus of proving a consideration upon the 

ex too Is express that no form of words or writing}- out a** 

the contract. Cod. Uh. a tit 3 I. i?* 

3 F 

~ uy wiiicn iiic cuuipany ib iiii;urporaitru* ai ui 
those by whom a specific act is ordered to be d 
dispensed with, another may, and there is no 
far this principle is to be carried ; no power cai 
ed under the statute, but what is created by it 
cuted in the- manner it prescribes. On the poi 
deration, the authority from 5. D. and £• is d 
consideration appears by the declaration, the 
asked must be denied, because it is evident wh 
to support tbe first count, must have been a 
the second and third counts, which were on th 
as that mentioned in the first : if so, £ddow« 
kins relied on by the plaintiffs, shew the ame 
not be granted. 

Per curiam delivered by RadcIifF, J. In thi 

is a motion in arrest of the judgment, foundc 

tions made to all the counts in the declaration. 

The counts are three in number, and tlie obja 

apply to all are, 

1st. That tbe promise or contract set forth in 
lion is void for want of consideration, and con 
this is another objection, which was distinctly 
the first instalment of SlO not being paid, the c 
incomplete, and not obligatory on the company 


4Kh. To the second and third counts there is a further ob- NEW-YORIC, 
jcction, that the plaintiflfs have declared on the promise or Nov. 1^3. 
Mibscriptioa in writing, as upon a promissory note Avithin the Union Tnrn^ 
totttte. P^^ ^^P^ 

As to the first, the form of the subscription which con- i^^j^ 
laios the promibc, is prescribed by the act in the following ▼. 

WUM : " We whose nanaes are hereunto subscribed, do for ^ 

' ourselves and our k-piil representatives, promise to pay 
' to Uie President, Directors and Company of the Union 
' Turnpike Koad, the sum of S25 for every share or stock 
' in said company, set opposite to our respective names ia 
'nch manner and proportion, and at such time and place 
* u shall be determined by the said president, directors 
'and company/' The declaration states the plaintiff's 
Bhcription in these terms, but does not aver that the gio 
ftcach share were paid, and which the act required the der 
Uaot to pay at the time of subscription. 

I cannot discover any ground on which this promise 
Bigiit to be considered as void« The subscription was 
'ikea by commissipners who were authorised to receive it. 
Mid ID the form prescribed by the act. That form contains 
■ ibaolute promise to pay die money to the president, di- 
ittton and company. On the one side the interest of the 
DQUpauy in selling the shares, and the public advantage to 
^derived from the success of the institution, and on the 
oAv the expected profits to accrue from the stock, were 
itfcient considerations to unhold the promise. By force of 
ii act itself also it must be considered as good. The legis- 
I^Bfeako must have intended tliat it should be obligatory, 
bcbe the formal manner in which it was prescribed to be 
likeil would be senseless and nugatory. I cannot imagine 
ht a contract in terms so express and complete should be 
iMplsd to mean nothing. 

The lait section of the act by which the company was 
iMUedy cannot in my opinion destroy its eHect. It is thereby 
irther enacted, that the directors may call for and demand 
IliliQOis so subscribed, at such times and in such propor- 
MM tttbey shall see fit, under pain of the forfeiture of the 
tem ud all previous payments. This provision was 


•'^-Y^Kt designed as an additional security for the proportion of tlie 

v^tfp^^^^.^^ shares which should remain unpaid, and to enable tbeonm- 

^uCmmvV^^y ^y a decisive measure to compel die prompt p&j- 

▼; ments which tlie objects of tlie institution required. Vkj 

The Mine had an election to adopt this expedient, and exact the for- 

The ^me feiture, or to enforce paynieiit iu the ordinary course bf i 

• suit on the original contract. Not having insisted ou tb 

forfeiture, tlicy of course have a right to maintain tbit a& 


The objection which is founded on the idea that the coik 
tnict was not obligatory on the company, and therefore not 
mutual in its operations, I also think is not well taken. Ti» 
subscription was for the full sum originally due foreick 
share. The SlO on each share were due immediately, tod 
the engagement with respect to that sum was like a notefiT 
obligation payable on demand. Tlic contract was coinpk(% 
and the defendant had a right to tender the payment of tbe 
jSlO, and demand its performance on the part ctf the com- .1 
pany, who had an equal right to enforce it against him. i 
Neither party could revoke it without mutual consent, or a ; 
default on the adverse side. I therefore consider the con- , 
tract tis reciprocally binding,. and founded on a vafid€OiH 

The second objection is, that the commissionen l|» - 
pointed by the act did not as soon as 1000 shares vctl 
subscribed, give notice to the stockholders to chooMtfv 
rectors. This was I think properly relinquished fcjT #{ i 
of the defendant's counsel. It does not appear whiett M 
precise number of 1000 shares was subscribed. TWiS 
fcndant subscribed his shares on the 17th of April, i4ll| 
and it is averred, that on the 2 1st of the same mofltk*^ 
wards of 1000 shares, to wit, 1990 were subscribed^ m 
that the commissioners, on that day, gave noti^ii f 
choose directors. The particular time of giving dtti*^ 
tier, after 1000 shares were subscribed, could iiotbe"i|P 
tcrial. The act in this respect was merely dirti 
the commissioners, and if they did notstricdfi ^ 
their trust, it could not affect the existence of ttCli 
pany, nor any contracts made with them. 


e third objection is, that no order or determination KEW.roRKi 
! president, directors and company requiring! the pay- v^^l!l^/ 
of tliis instalment, is averred. It is averred that UnJonTnni- 
resident and directors onhj made the order. The v. 
Ise was made to the president, directors and company^ •/ |£ ^^ 
ding to the form prescribed by the act, and it is -rfce^^me. 

fore argued that this order ought to have been made ■• 

I company as well as by the president and directors, 
criticism ought not to prevail against the only prac* 
t construction that can be given to the mode of ex« 
ig the powers of this corporation. It is obvious that 
>mpany in their collective capacity, can never act* 
rresident and directors are their representatives, and 
done are authorized to manage the concerns of the 
my. The act invests them with this power, amd it 
I set forth in the declaration. They alone could 
T the payment in question, and the order was p: o« 
made by them. 

. The last objection applies to the 2d and 3d counts 
in which the plaintiflfs have declared on the defend* 
ubscription as upon a note of hand, without setting 
the act or any consideration to support the defend* 
iromise. It is not expressly declared upon as a note 
I the statute concerning promissory notes, but the 
} can be supported on that idea alone, for they do 
ite any consideration independent of the making of 
te* The shares of stock to which the defendant would 
itled, are not set foith as tlie consideration of the 
se, but merely as descriptive of its extent, and as 
lating the amount he undertook to pay. These 
\j therefore, cannot be maintained unless the note 
isidered to come within the statute, which I think it 
lot. ^ Although by the note the defendant promised 
\%2S for each share, it depended on the future ope- 
B of the company, which was not yet organized^ 
ft the whole or any part of that sum would finally 
muided or become due. The payment was there* 
ncertain and contingenti and such a note has fre« 


H^-YORX, torsy with propriety ^ have refused to consider Mr. ^enki» 

v^^p^^..^^^ as a stockholder^ on account ofhis not having made the JAj- 

^^"qI^' ™*i»t required by the act on his subscribing ? I drink AtjT 

^ ▼• could. No ttojifthe benefit then, arising from the futmfe 

tiic MUM emoluments of the company transactions, can be conndeN 

Thc^umc, cd as a consideration for the promise, and if it cooU, 

none such is stated on the record. 

Notwitlistanding the motion to amend, it was inttittd 
the suit was maintainable on the 3d and 3d counts, t 
think not. For a promise to pay on a contingency, wiftiif 
may, or may not happen, cannot be declared oa as -a Bote* 
of hand- The instrument must be payable at all evekH^ '' 
The propriety of amending, I need not consider, if P 
am of opinion, no suit can be maintained on the first codlti 
for want of a consideration. ' ' 

I am of opinion judgment ought to be arrested.* 

The People against Samuel S. Freer. 

If • defendant A RULE had, in the last term, been grantediguMtihe* 

▼c^t^by^^ defendant, to shew cause on the first day of ibe f^tent 

fiSJIh^i-ig ^^''"» why an information should not be filed «gMnstttB|i 

cause against a and no cause havinir been shewn on the day appoiatedi A» 

rule for an in- ° ^ rr -» . 

formation, and rule Was made absolute. •t'> ' ' 

been made^ Hoffman now stated to the court, that the defcodaiitliiAr 
wMt"5 ^Le ^^^ prevented by adverse winds, which detained Ium4^ 
SSt^'iiSi ,ct^°""*^' and papers, until after the rising of the eowtM 
it aside of the first day of the term, and prayed that the rule vif^ 

course, on an ; » r ^ 

immediate ap- be Overatcd. - *<'V)i4 

Per curiam. It is of course-— take your 
shew cause, on the first nor enumerated day. - :, »;lilf 


James Brandter ex Dem'. Timothy Fitch and c 
Tr.»»...^ a£[ainst Ammon Marshall. 

If • tenant <!>• o ■ > j^U; 

ten under a EJECTMENT for lands in West-Chester, mef 

lease, holduig •* , ^t . r » " • •Ui'*^^ 

oTcraftcrits ex- June, 1 801 , before his honor the Chief- Justice. Tlie 
rridence of ad- Stated, that the plaintiff produced and proved : . . .^ 

▼erseposscssion ^ • ■ «'>^*^_ 

So, ifthe te- . * After proBouncing the judgment of the court. RaddlB» Jr ctaKJJjUB 

nant's son come he thought the regular practice was to obtain the eettiflcBt^ ^'^ wffWt 

la under him. fore whom the canw was tried, that the cfidcncc appttctf 9i<ljtP JlH WKU t 

which it was meant to enter judgment. Kent, J. who'triea ue cHKrlH^E 

aflklavit of the pUindlb* attorprv waaoomBt. wA tliBrciiBR>ic MplNffr 

ficient iSot thcuncndment. In tni* the bench coocorred. 


1st. A paper signed Joseph Marshall, the father of the ^J^-yg^^^. 
fendant, dated 6th September, 1758, by which he ac- v 
Owkdged that he had, about six years before that period, 
ccn possession of the land in question, under Tho- 
la Fitch, and John Raymond, and that he then held the ~~ 
Qie under them a^ his landlords. 

2ndly. The counterpart of a lease executed by the said 
«eph Marshall, by which the said Thomas Fitch and 
hn Raymond, demised to him the premises, for three 
■ES, then next ensuing, at a reserved annual rent of on£ 
iUing, oi^any payments of which, no testimony was giv- 
: but it was given in evidence, that some time subse- 
cut to the lease, two suits for forcible entry and detainer, 
n brought against the said Joseph Marshall, relative to 
t land in question, and that, on these occasions, Joseph 
iarshall applied to Thomas Fitch, who defended him 
erein : that he was turned out of possession in one of 
Qse suits, but afterwards restored : that Joseph Mar- 
ill died intestate, in 1774, and letters of administration 
Sfc granted to his son Joseph : that Joseph Marshall, the 
dMTfdied in a house on the premises, in which he resid- 
L.witli several of his sons, who were of age, and had, 
>r some years past, worked the farm, but whether on their 
n aoccrnDt or that of their father, did not appear. It 
ilirfiirdier proved by two witnesses, that they were pre- 
M'at a sale by auction, of the effects of the intestate, 
Ihlftdiey were told by the administrator and auctioneer, 
btdie defendant had purchased the possession of the land 
Vfirition. One of the witnesses, who was a neighbour 
'die defendant, deposed, that according to his supposi- 
IHIB, die defendant held the lauds ever since by virtue of 
INirarchase ; and another proved that he was the young- 
Mfpaof the intestate, and not his heir at law. It was 
w in evidence, that the defendant had in his possession 
Klease granted to his father : that Thomas Fitch died 
^fti^ and some of the lessors of the plaintifFarc his heirs. 
|f'4Wi jijsjtt of the defendant it was established that he had 
Pfetjtt the actual and peaceable possession of the premie- 
I death of his father to the present timCi hold- 
a G 


NRW.YORK, ing and claiming them as liia own, and that no : 
' ever teen paid by, or demanded from, him. 

The judge on this evidence, charged the jtxij 
they believed the defendant held the land undc 
"thcr's title, they ought to find for the plaintiff; o 
direction the jury brought in their verdict accord: 
On these facts a motion was made for a new tr 
Hoffman for the defendant. We contend tha 
circumstances as presented by the case, the judge i 
have directed for the defendant, and not for the ] 
The facts, indeed, are but limited ; some princip] 
ever are involved, which it is of the utmost impor 
have decided. For, admitting that the defendant 
under his father, still we insist the plaintiff, as 
from the case itself, is not entitled to recover. T 
no evidence of title whatsoever from the expiratic 
lease in 1 758. That then, being only for three yes 
pired in 1761. After '61, the lease is no evidrni 
posessory right in the plaintiff to have the preliiisM 
subsequent acts of the defendant can be shewn eqi 
to an acknowledgment that his title was under th 
Without resorting to authorities, principles of ! 
bear out the position. The lessor^s right comme 
1761. It was incumbent on him then to have ent 
have exacted some acknowledgment, which ttnii 
entry unnecessary. He was out of possession for ^ 
without receipt of rent or profits f if his right did 1 
crue, and was not pursued, the defendant renili 
quiet possession, the court will not intend he hd 
the present plaintiffs. For the holding was tortiotlS| 
their right. If this be not so, where is the doctkia 
opposite side to carry us ? If it beacceded tOf t 
efUering under a lease, is forever to be suppotet ^ 
under it ; 200 years quiet possession might be alw 
yet no title acquired. To evince, that when djjie I 
termines, the plaintiff should have entered^ Riinjii 
60 is fully in point. ^' Nor is a common perMbfi 
*^ by the statute of limitations, where the poejeeiff 
.^ the huda of his tenant, who has pidd Utt limtfvl 


e of limitAtion ; for the possession of a lessee for N£W.Y0rk» 
years, is the possession of his lessor, and payment of v^ ^''_^ / 
t is an acknowledgment of the possession. So that Bnndter 
-ing the continuance of the lease, and payment of Manhali. 
t, the lessor is in no sort of default, for he can not — ^-^ 
er and take the actual possession till the lease be ez- 
ed ; but then it seems he should, because his right of 
:ry then first accrues.^' The court will find the same 
iple recognised in 4 D. & E. 682.* It was there rul- • EngLmdr. 
lat aman entering under a lease, cannot, pending the ^*^ 
t contradict his lessor's title, but after the time has ex« 
, he may prove his landlord not entitled, by produc- 
le lease ; in which case, the landlord must shew a 
r title. The lease, therefore, given in evidence, on- 
ew8 a right of possession against us till 1761, and no 
T. Even for that time, no rent was paid, and it is to 
iservsd, that die reservation is merely nominal. But 
ict really is, that none ever was paid. It is next to be 
-ved, that the jury were not warranted in finding the 
ook' under his father. There is no evidence of this 
The defendant might have taken as a stranger, and 
this lease would have been totally out of the question, 
ise he would have come in as a third person and not 
ted by it. He was also the youngest, and not the eld- 
m. The testimony that he did derive title under his 
U id hearsay throughout, and therefore the judge 
t to have charged, that it was not entitled to any cre- 
The auctioneer, and some one else, told the witness- 
fit the defendant had purchased the possession ; but 
ras not done in his presence, nor is any acknowledge 
of the fact substantiated : the declaration was made 
third person, and never assented to. This, surely 
.fannot be evidence. On the contrary, the tcstimo- 
bchalfof the defendant demands a presumption that 
Jd adversely, and so the judge ought to have charge 
t ought to have been laid down to the jury, that there 
efficient for them to presume an adverse holding. 
I^riociple of this doctrine has been recognized in this 
,ifi Van Dyck v. Van B^uren and Vosburg, That Ante 89. 


NEW-TORK, was a case of tenancy in common, and yet there the 

Not. 1X03. • J r • • • 

' said, after 40 years possession by one tenant m con 

the jury ought to have been directed to presume an 01 
If^ then, this be law, between tenants in common, a I 
ri between others* It is impossible here to pre 
otherwise, for could it be so, the doctrine would eztei 
infinitum, and a lease once shewn, would be anarga 
for hoiding under it forever. The inconvenience 
would lead to, ought tc be an argument against it. 
plaintiff, therefore, should have shewn, as his lease 
espired 40 years ago, a title paramount ; for it is pos 
neither party have a right. 

Harrison contra. It has ever been a principle of 

that where a person enters under a title from another 

person so entering never can dispute the right of -the 

gf nal holder. So where the relation of landlord and 

ant has subsisted between the parties, though there sh 

be a holding over, the tenant in an action against hiff 

not contradict the title of the lessor. If this.kai 

take, it is so in the very foundations of the law. 

the general principles thus stated, and to shew that a 

see cannot dispute the title under which he has cnti 

• Poe V. Law- ^^ court wiU find an authority in 2 Black. Rep. lii 

c-^-'thi\"ssI^c'' T^^*^ positions are not altogether denied by the 00 

v:h 1 wa$ the for the defendant, but they are qualified by sayinff.l 

d.-f.Mv^ijr.t. had . .- , .it . "*' 

paid rent to the lease expires, if the party eniitled to the poffff 
the piidutift\ docs not enter, the relation of landlord and teimt: 
an end. Surely, however, if the lessee on the eipiff 
of his term continues to possess^ by the tacit coqm 
his landlord, he is tenant at will, or at least from J^ 
year accountable for tlie value of the rent, when dii^ 
er may think proper to demand it. But he mqrhi 
right to the rent, by neglecting to apply for it^lftll 
years. On examining the doctrine in RunningCQi||;|l 
be found to apply merely to leases taken by thiad^ 
Where the lessee parts with the land, if he.fiQrii 
atill the statute does run. This is not the cm04jyi 
and lessee, but of an assignee of a lessee. -Spi^Niil 
sion in 4 D. & £. will be seen to have settMAlj^ 


lere a person enters under a landlord, it shall be com- NEW-york. 
tent to shew that the title of the landlord has ter- v_^''^^# 
inated, and that the landlord himself held by a lease Bnndtcr 
Avch has expired.^ If this had been so, then it might Marshall. 
wc been shewn that Fitch himself held only as lessee. 7" * 

dt till shewn it cannot be presumed, for in all cases the exactly so. 
resumption of law is that the party under whom the hold- 

«is, has a fee.t Therefore, unless it be shewn to the 
z Sac Stnkffl v 

SBtrary, it must be taken that Fitch had the fee, and the Berry. a&JlJ 
irtycontinuing in possession held under that fee. Should 
Us be the taw, it is asked what becomes of the statute 
f limitations ? This brings it to the question, whether 
he statute applies when the possession is not adverse i 
Rie whole of the facts stated by the case, shew no more 
bn a holding by suflferunce, and under such circumstan- 
9es the statute does not apply. For though 100 years 
nay have elapsed without payment of rent or any ac- 
tiiowledgment, it is immaterial if the first entry was by 
ht landlord's consent, as no tenancy by sufferance is ad- 
rcne, and only in adverse cases does the statute of limi- 
liftmsnin. In Bishop v. Edward3,& Bull. N. P. 102.5B.^C a,tj* 
ne dnirt will find the whole of these positions laid down. 
Alto the reservation of the rent being nominal, the \a- 
tni is immaterial, a pepper corn would be sufTicient to 
Qtite the relation between landlord and tenant. If this 
kright, the relation did subsist, provided the son entered 
ttrier the father, as holding by his title. I'his is u qucs- 
"^ of fact, aud as in all other cases, the jury were at 
ttbty to infer either for, or against. Wliat tlitn are the 
wBomstances here ? The father enters into possession 
|>Ucrthe lessors of the plaintiff, lives in the house^ cul- 
vvttes the land with his sons> who, in his old ogc do so 
Bcirise, and on his death, continue in the same course. 
^this is a disseisin to be supposed i Is it not more rea- 
•Sisble'to imagine the sons preserved tlie tenure, and 
Wd as their father had done ? It is said, however, that 
wcoold not be, because in such a case the eldest son 
^Uhave taken. True, had there been a disseisin^ 
\ then a fee would have been acquired. But as the 



MEW-YORK, title to the premises was a cliattel interest, it past to 

^' ' the personal representative, and therefore, it was 

properly left to the jury to determine, whether on the 

facts of the sale by the administrator, the defendant did 

not enter under his father's title. To say that the cDuit 

and jury ought not to presume on facts, when they ill lad 

to one point, would be an outrage to common sente ; it 

might, perhaps, be thought, that if it was so, notice toqipt 

was necessary. But when the defendant discIsumedQ 

hold under the plaintiff, notice was unnecessary, andtheni 

fore an ejectment was brought. Admitting the case of V« < 

Dyck V. Van Bcurcn and Vosburg, to be as stated, it mif^ 

9hews, there was from the circumstances enough to nfi 

pose an ouster, but here the reverse is the fact, andthcr^ ' 

fore we contend the charge and verdict were equally ri||i% 

and a new trial must be refused. 

IIoH'man in reply. That a jury may infer from circanh 
wtanccs is not disputed ; but then there mueit be l^aJ I'H* 
dence of tlioiie circumstances before the court. That tfhici 
was given, was inconclusive ; it rested on hearsajs »»4 
ought not lo have Iiad any weight with the court. TH 
sale of the premises was merely hearsay, and it is to beol> 
served, that the vendue was of personal estate^ as if J™ 
wiks total I3' out of the question : the lease is much idki , 
on, expired in J 761. Had wc tlien disavowed holding 11^ ■ 
dcr the lessor of the plaiiitifl', the statute would li 
Can there be a stronger disavowal, than taking to 
tfie rents and prolits for forty years ? After tliirty 
the law will intend an adverse possession. It is not 
able that a proprietor should permit a person to go 00 
forty years, improving, and then set up an old d 
lease, after lying by so long. The jury ouglitto Iiate 
flirccted to presume an adverse holding, for the iiistaot , 
aro called upon, v.c assert our own right, and detii that of:. 
the lessor. On the grounds contended for by the pl^i: ^'^^ 
had the lease been dated on the day of first taking 
i»f fhis country by the British, it would have beetf 
fHicacious. The interests of the comnumity require » 
fc!rcnt doctrine ; if, for no other reason, the pJatauffoiij 


w a title beyond the lease. Improvements have been kcw-tork. 
idc, andhU connected with a forty years exclusive ^ ^^- 'jf > ^ 
loyment of rents and profits, ought to have induced from 
: jadge, a charge to the jury, that an adverse possession 
IS a presumption of law, and on which they ought to find. - 
Per curiam delivered by Livingston, J. This is a mo- 
» for a new trial for misdirection of the judge, and be* 
MK of the verdict being against evidence. 

It appears that Joseph Marshall, father of the defend- 
It) in 1758) held the premises by virtue of a lease from 
lionas Fitch and John Raymond for 3 years, reserving 
le shilling annual rent. It did not appear that any rent 
id been paid or demanded. In 1774 Marshall died on 
le premises ; in 1 775 Thomas Fitch died, one of the 
iliors, and his heir at law 

Joseph Marshall died intestate, in 1774, when letters of 
dfldnistration were granted to his son. 

A witness also declared, that after Joseph MarshalPi 
eath, he was present at a vendue of the personal estate, 
^henthe auctioneer and the administrator, not in the de- 
SBdant*s hearing, told him that the former had sold the 
osscsson of the lot in question to the defendant. This 
ritaess was a brother and neighbour of the defendant, and 
Midways supposed he held the said land by virtue of this 
ik. The defendant has been in possession since 1774, 
himing the land as his own. 

On this evidence, the chief justice charged the jury, 
hatxfthey believed the defendant held under his father 
bqrshould find for the plaintilF, which thev did accord- 


Ithia direction and finding of the jury were botli cor- 

Wnen a person enters under another, and transfers the 
imession, his grantee is supposed to hold under the same 
■tie. Although the lease be expired, he will be regarded 
tloldingby.consent of the original landlord, and as his 
qpttnt at will ; unless he can shew that, since the expira^ 
^of it, )ie has acquired a new title, either from, or pi^ 
; to that of the party under whom possession was 


NEW-YORK, taken. Joseph Marshall, the father, it is admitted, heli 
.^•'j^y under Fitch. He, therefore, under this rule would not^ 
on his mere possession, be permitted to prevail againit 
the title of one acknowledg<*d \y himself. The presump- 

/ — ' tion that he continued to hold under Fitch is arcasooiUf 

one, nor would it work any hardship to him, as it wotdd 
not preclude him from shewing a better title, when he bid 
continued in so lo long after the lease had expired. Tte 
possession, therefore, in 1774, when Joseph ManhaU di* 
cd, must be considered as that of Fitch. The next qucfr 
tion relates to the proof of the present defendant bolifi^ 
under his father. The testimony was sufficient to gfti t» 
a jury, and wc think they have drawn the proper coqcIih 
sion. 4 

The defendant is not only his son, but the cotcmpcua*' 
ncous declarations of the vendue master and adminiitn- 
tor, although not in the hearing of the defendant, vers 
properly admitted, and unless the defendant product 
some other title, would satisfy any reasonable mind that 
such was the case. 

There can then be no adverse possession ; for uoui 
1774, Joseph Marshall did not set up, for aught thit «p 
pears, any title to that of Fitch, and since that time tvc^ 
ty years, deducting the period of the British war, hafl^iot^ 
elapsed. The rule, shcrefore, for a new trial most bejp 
charged with costs, and the plaintiffs have judgment. > ^ 

William Nash against Samuel Tupped. ^.* 

OnforrigTicon- THIS was an action on two promissorv notes, oiiilp 1 

tracts, our sta- . ,., ■ ^ -^ •— -r,/w 

tutcofiimititi-the State of Connecticut, and dated 2Sth November, Wk 
pica." * ^^ The plaintilfdc-chircd in the common manner, iiflfliMpI 
count for njoncy had and received. 

The defendant pleaded non assumpsit, and actio wja^jSf- 
crevit infra srx annos. 

The plaiiitiir replied specially, as follows : " i^ 
" AVilliam, by his attornies aforesaid, says that he, 
** thing by the said Samuel above secondly in pit'mlrng 
" leged, ought not to 1x5 barred from having aiid maip^!^ 
*^ ing his action thereof, against the said Samuel i bc^^ 


says, that the two several promissory notei, mention- NEW-YORK, 
in t!ie two first counts of his, the said William's declii- vj|l' ' ^^ 
ion, were made and given by the said Samuel to the Nash 
d William, and that the cause of action in the two Tuppcr. 
It counts of the same declaration mentioned, arose — — — • 
thin the limits and jurisdiction of the State of Con- 
cticut, and was contracted with reference to the laws 
d customs of the state, to wit, at Whitestown in the 
unty of Oneida ; and the said William says, that by 
act of the Legislature of the State of Connecticut^ 
titled, An act for the limitations of proseaitions in £• 
nt cases civil and criminal^ amongst other things it is 
slcted. That no suity process^ or action^ shall be brought 
any bond^ bill^ or note under hand given for the pay^ 
mt of any sum or sums of money ^ not having any other 
fuKtion^ contract^ or promise therein^ but within the 
Ke of seventeen years nexty after an action on the same 
all accrue. And the said William avers, that by the 
w of the said State of Connecticut above recited, the 
id William at the time of exhibiting his bill against 
e said Samuel, to wit, on the nineteenth day of Ja- 
Lary, in the year of our Lord one thousand eight hun* 
ed and two, had a good ^nd sufficient cause of action 
junst the said Samuel, as contained in the two first 
nmts of this said declaration, and this he is ready to 
;rify, wherefore he prays judgment if he ought to be 
irred from having and maintaining his said action 
ereof against the said Samuel ; and ihe said V/illiam 
irc freely in court confesses, that he will not further 
tMecute his action ag-ainst the said Samuel, of and up- 
1 the third count in his declaration aforesaid, but doth 
Molutely disavow and refuse to further prosecute of 
id upon the said third count of his said declaration 
punst the said Samuel." 

i'o this the defendant put in a general demurrer, on 
di it came before the court. 

Smmott for the defendant. From the pleadings it 
I appear, that this is an action of assumpsit on two 
missoiy notes, dated the 28lh November, 1791. That 

3 a 


NEW-YORK, the defendant has pleaded the sututc of limitatioiu, W 
^' - which a special plea has been filed, and on that a ge- 
neral demurrer. From the facts contained in the n* 
plication, it will be seen that the present question real- i 
'ly is, how far the laws of Connecticut shall controol j 
the operation of those of our own state. The contrKt j 
is set forth, not only to have been made in CoimeOi 
ticut, but have been there made with a reference to ik 
statutes there in force, and therefore, that the seventecii 
years limitation of the right to sue, formed a part of tin 
contract. There can be no hesitation in allowing, tlit 
the lex loci shall regulate, when we are to decide on tin 
validity of a contract. Our statute of limiution is ; •* Al 
actions upon the case,** &c. shall be commenced wid 
six years after the cause of action accrues, excepting!^ 
those cases, contained in the proviso, and to be entitled^ 
the benefit of which, the plaintiff must shew that he comd 
%vithin it : he should have gone further. In addition to 
the contract being made in Connecticut, he ought to have 
shewn, that the defendant continued to reside there till 
within the last six years. By the English statute the ab- 
sence of the plaintiff takes the case out of it, with ui itii 
only that of the defendant : and therefore a suit may ^ 
brought here, when it could not there. This greilff 
strictness, in denying the effect of the proviso, to ahia^ 
plaintiffs, will make this court less inclined than eves tte 
English, to extend the saving of the statute. 11^ tfadfr^ 
fore, the statute would be a bar in England, a fortkvili 
the State of New- York. In Robinson v. Bland, BliA 
241, it is acknowledged that the statute of limitation! nif 
be pleaded to a foreign contract. The words of Mr. BUcr 
stone, in that case are, " The statute of limitations kf 
*' been frequently allowed to operate on tranaacPt# 
« abroad," and in the same book, 257, Mr. Weddcrta* 
in his reply, admits this, but observes, that it runsMf 
when both parties are in England ; it does not affect Al 
validity of the contract, but only the mode of recovcffpl 
it : that is, it goes only to the remedy, and not tfi^w 
right. This case, therefore, is inapplicable to the nlf* 


down, respecting the lex loci. The general one, asNEW-voRK, 
n by Lord Mansfield, ibid 258, is, that the law of the vl^Ijf^l 
e where the the action is brought, is to be considered, 
qxmnding and enforcing the contract. To the same 
:t is Duplein v. De Roven, 2 Vem, 540, In 2 Kaimes, " 
. ed. 3. it is^ on this subject said, " Several questions 
isc from the different prescriptions established in dif- 
rent countries. In our decisions upon this head, the 
ise is commonly stated, as if the question were, whe- 
ler a foreign prescription, or that of our own country 
ight to be the criterion. This should never be made 
question ; for, our own prescription must be the rule in 
'ery case that falls under it, and not the prescription of 
y other country," Admitting, therefore, fully the lex 
in expounding contracts, this is not a case of exposi- 
, and does not, therefore, come within those authori- 
. Lodge V. Phelps, is a case in our favour. There 
indorsee of a Connecticut note was allowed to proceed 
is own name against the indorsor. This goes to shew 
in all cases, where the question turns on the form of 
m, the law of the country, where the defendant is 
id, and not that where the contract was made, ought to 
«il. Therefore, as it is not shewn that Tupper was out 
>e state till within six years, the suit cannot be main- 

oold contra. By the pleadings in the case, the truth 
rfaich stand confessed by the demurrer, the court will 
that the defendant entered into the contract with a re- 
ice to the laws of Connecticut alone. It must tiafe been 
ided then, that the rules of those laws should be cx« 
tvely resorted to, as the measure of justice l>ctween the 
ies. By the code, ordained as the law of Connecticut, 
rations by specialty, and simple contract demands, are 
sd on the same footing. When therefore in that state a 
of band is taken, the creditor takes, and the debtor 
! the same security as would be created here by a spc- 
f , or sealed obligation. As they are thus equal in their 
re, the statute of limitations couples them together, 
»iie UBifomi rule applies to both. If then the creditor 


KEW. YORK, regards the continuance in his debtor of the duty to pay m 
every sjiecialty which is taken, both parties inu^ne and 
agree, that there is for seventeen years a continual obliga* 
tion to satisfy the demand whenever called on. When tta 
" debtor executed these notes, he consented to be hound fcr 
payment of their several amounts, and so to continue Fat 
seventeen jXMrs ; during tliat period, it is a further part of 
his ugn onient, that no presumption of paj^ment shaU be 
niuiic. Ir is on this presumption of payment that every itft^ ' 
tute of 1 imitations is founded. Therefore a promise to psf^ 
as it rebuts the presumption, and shews the debt has nol 
been paid, is allowed on all hands to take the case out of lb ^ 
stiitute. Nothing then can be more fairly inferred, tial 
that the debtor nas consented that these securities sbodl 
create un obligation for seventeen years, and that, duikg ' 
such time, the creditor might safely repose iijxin it. Buti 
distinction is taken between the contract and the remedj^ ! 
that the former may remain when the latter is lost Tiiii ' 
is like taking from the shipwrecked Ills plaiik, with a |iro- 
fession that you do not mean to drown. When a man takes 
a security, he looks to the period for which his debtor ii ; 
obliged ; thinks it shall last till then, and with a view to rW 
it is tLikcn. In Connecticut, the state has put notes ami 
hondn on the same footing ; but when the creditor cooMStt 
New-York, ho is told, they consider the contracts of adi{> 
feront nature, and what he took as a siiecialty, shall be fl^^ 
more than a simple contract. What is this but to exponrf 
the lex loci contractus, according to the law of the lex fai 
Hiere is no decision exactly in point, no judicial dettnii^' 
aiaiion but the following authorities, may, more or leMfbetf 
on the ;iui)iect. This is a mere question of expoaitioDi ^ 
how the pdrtjes contracted; in support of the lex lociflfl* 
tractus, S Foiib. 4+2, cites from Hub. Pnel. tomii. Lli 
tit. 3, the pdSrage sit full length: there, after laying itdoii 
that the iaws ot a state are properly confined to transMSMii 
wltJiin iti) limits, Huhcrus .<hi\'s, tliatin case of ftcoofliottl 
legum, or vari.mce of the laws of diilerent couutricif Al 
lavs of tiiat where the contract is made, sliall provailvill 
the exception of cases where, in the contract, a 


am had to the laws of another state. So, a marriage con- NEW-YORK, 
act, made in France, shall be caiTicd into efiect in Kng- v_^' '-^\ 
xid, according to the laws of France, though contrary to 
M»e of England, Feaubert v. Turst. Prec. Chan. 208. So 
1 Aiyes V. Hodgson, 1 I), and E. 241, the court of King's 
iehch refused to receive in evidence a note given in Jamai- 
»! and not stamped according to the laws of tluit island. 
The same principle is acknowledged in Wriglit v. Nutt, 1 
H. Black, 148, 9, where it was ruled, that the laws of 
Georgia, on a question of confiscation, were to be regarded 
in Westminster Hail as much as in Georgia, wiiatever 
night be the opinion of the court as to their policy. To 
Ac same effect may be cited Burrows v. Jemimo, 2 Stra. 
138, 5 Vin. Abr. 511. Pi. 22, and in Jewson v. Heed LoU 
ltep« 138, Lord Mansfield said, a contract made in France, 
must be governed by the laws of France. A further author- 
ity, if the credit of the reporter will make it so, is from the 
lame book, Crawford v. Witten, 154, where to an action of 
debt on a judgment of the Mayor's Court of Calcutta, it 
Iras admitted, that the statute of limitations of the lex fori 
Iras iiot pleadable to foreign contracts. In t.iat case, Mr. 
Justice Aston observed, tliat an action must be determined 
by tlie laws of the country in which the action accrued. 
Kutthc next case which will be relied on, goes to the very 
Rnedy. It is that of Melan v. the Duke de Fitzjaines,| mis cane hu 
1 Bos. and Pul. 138, in which the court determined that aan?k w^'ob- 
»ian cannot be held to bail in England upon a contract to J!^c^*^fcarn^* 
|*jr money, made in Franco, if by the laws, his person i^^i^a^a^n*'^' 
Qoi there liable to be restrained ior the debt. And in order w*»«> " ^»« 
w.prore tliat such was the case then in dispute, Pothier on 
obligations, and an affidavit of a counsellor of Paris wt^re 
>^ved as evidence. Here the remedy alone was the 
point in question^ as the laws of the community where 
the debt arose, gave tio lien on the body, it was dis- 
•Ibired in a case where, by the English code, the de- 
^ndant was immediately liable in his person, and might 
Ite held to special bail. The English bench, against the 
Course of their own court, and against the laws of their 
IHpn'land, adopted those of Fiance, in determining the 


K^-YORK, extent to which a debtor had pledged himsdf by hU 

' gagemcnt. Ciiicf Justice i!«yre, m giving his opinion 

ly adopts the doctrine of the lex loci, and observes wl 

vcr would constitute a defence to the action in Fn 

would in Westminster hall. The reverse of this mii! 

cqunliy true, what is no defence in Paris, will be noB 

London. This, however, is now denied, and while 

lex loci ccr.tractus rs admitted to create the contractyj 

is attempted to interpose the lex fori to protect the deb 

under the idea of the laws of the jurisdiction affecting 

remedy, bat not the contract. It is with due submissi 

imagined, that the defence set up by the opposite partj 

Cached on the contract, and made a part of it. It is of t 

utmost importance, that a creditor should know, how b 

he may repose without its being presumed that he ii 

been paid. In this state by taking a bond he would htf 

intended to protect himself against this presumption fi 

twenty years. To create an equal bar to presumption, sac 

as an obligation would have inferred, must have been i 

the contemplation of the parties in Connecticut, becaus 

the law gives the security taken, the same advantages. 1 

the maker and payee had, in Connecticut, been asked t 

expound their own contract, they would have said itii t 

last and continue, firm and good against all presumptiol 

for seventeen years. This then, attaches itself to,tfdi 

an integral part of the original contract, and therefbieA 

pels the bar growing out of a foreign jurisdiction ; OBT* 

tute of liniiiations, pleaded in bar. If the act did not 0|H9^ 

ate on the contract, but merely suspended the remedfi^ 

would be matter of abatement, not bar : because bsr gD* 

to the right not to the remedy, and the statute pieivM 

payment made, therefore the judgment is in chie^w 

exhausts the debt, which becomes, as it were, dead." * 

the defendant meant to avail himself of our limitadoiki^ 

he should have stated that the notes were made widitl' 

ference to our laws, or at least should have gone on tS^M 

forth his own residence for six yeafs last past. Tlie Mil 

will refer to the pleadings, and see that they shewtteH 

loci contractus to have attached on the contract| and if At 


ridcnce ofthe defendant would affect the question, that NEW-YORk« 
rcumstance should have been specially set forth to ex- v^^ '5^'^ 
Lcrate him from the operation of the laws of Connecticut. NHb 
the case of Phelps the court guarded against the conclu* 
m that might be drawn against the lex loci contractus, and ' 
ecourtsof Connecticut have allowed cheindorsorofu New- 
ork note to prosecute in his own name ; givinp^ thereby a 
medy according to the lex loci, which would have been 
snied by the lex fori. Let us, for one moment, advert to 
MS consequences of refusing to adopt the principles for 
rUch we contend : tl!e laws of many states place sim|>ltt 
Ontract debts on very diHercnt footings. One fit'th of the 
■DDey lent out, may be advanced on securities, like those 
BD which the present action is grouiuled. These, after six 
years, are here prcsum(.*d to be paid ; supposes the maker 
sf a note removes to Connecticut, it will be in vain that he 
iriBsay, by the laws of New-York the debt is barred ; the 
cnditor will proceed and recover, when in the country 
vfairethe whole transaction took place, he coulJ never get 
^Ailling.. If this rule is to prevail, a creditor has only to 
Witchhispassingdebtor, arrest him in transitu, and attain 
pigment long after every hofie was, by law and the implied 
hisii of the contract, totally gone. The court, therefore, 
Urill be cautious in making a decision, which, by rejecting 
^Iaw8 of a foreign state, in expounding the terms of a 
oomract made there, becomes a necessary precedent to that 
ilMe, in regulating the justice it is to measure out to t!ie 
people of New- York ; which will, out of the limits of New- 
¥oik, create a seventeen, instead of a six years limitation. 
One coDtract, may, by this means, have a dozen diiferent 
blirpretations : a debt is contracted in Ne\v>llampshire ; 
fte. debtor comes here, and a six years quiescence dis- 
Airges him ; he goes to Connecticut, and the debt re- 
•iftt ; according as the limitation is long or short, he by 
Msown act settles the period of his creditor's demand. It 
■ inpossible to deny him this power, if the intention of the 
■iHties to the contract, and their resulting duties arising from 
^BBfenence to the laws of the country, where that contract 
ras made^ are to bedeparted from : for insteail of placing; tjie 


|iEW..YOlUC, agreement on tlio:^ resulting duties, and the basis conteoN 
^^^'J-^/ plated by the parties, it leaves thaty and tlie duties to which 
they bind themselves to the ^purt and eontroui of tlie niosl 
continp;ent ;ind capricious events, to the debtor's locomov 
" tive will, to the laws of any and every state or kingdom ia 
which he may from time to time elect, from among all tks 
nations of the earth, to take up his residence. In^teadof oop 
plain and uniform rule of construction, what an endkawl j 
perplexetl confusion is suggested ? A sugg«i»stion which fii^ 
nothing, but unsettles every thing; which renders emj, 
judgment insecure, and all suits every thiug, Ifnck 
must be the consequence, though it may be attempted. t|; 
shew the contrary, by refined distinctions bctweeii tins ifh 
niedy and the contract. There is another point of view i^ 
which this case may bo presented. Among tlie natiooi rf i 
Europe, a principle of comity has introduced a respect Coy 
each other's laws and constitutions. Between the iadivif 
dual states which compose the Union, it is subiQi^ad, vh^ 
ther there is not a far more cogent reason to respecti cvea 
as a bond to preser\'e the federal government. [ThcTt if 
a part of the constitution by which it is created, that ^ 91 
*^ state shall pass any law impairing the obligations of ec* 
^^ tracts." Does not this impose on the court an tdiii* 
tional obligation to respect the laws of a sister state, iAlii 
exposition of a contract made there^ than what 
from the mere comity of nations ? If the court wlk^ 
ply a principle drawn from the laws of their owa 
contrary to those of Connecticut, and not com 
by the parties to the contract when it was made, 
not impair the force of obligations ? Ucsidjcs, 
construction, full faith cannot be given to tlie. 
claims of the citizens of different states. Thia ii 
tioned merely as a feature in the constitution, !• 
with how much circumspection the court ougbtwpi^ 
ceed. Suppose the case had arisea in a court of lhiil# 
ted States ; that a Connecticut creditor on a C( 
there, had sued a New-York debtor, can it be 
that there would have been the hesitation of it 
adopting the lex loci contractus, the lawa 


: is submitted whether an act of this state, which should ^Nw'Tto>^* 
bridge the period given by a foreign contract to a crcdi- 
ir, within which he should not be obliged to demand his 
cbt ; which should deny him the right to have recourse 
i> his contract for any part of the time which was allow- 
sd by the laws of the state wliere it was made, it is sub- 
Ditted, I say, whether such an act would not, under the 
Eteatitution, in the extensive sense of the terms, impair 
ikc obligation of the contract i 

' Emmot in reply. An objection has been raised against 
deforce of our plea of the statute of limitations, from a 
dmse, or part of a clause in the constitution of the gene« 
III government ; that no act shall be passed to impair 
iKe obligations of contracts. From the use made of this 
passage,- it will follow that all statutes of limitation must 
^taiably remain as they now arc, and that no state can 
-fever lengthen or shorten the period ; because, that would 
kto impair the rights of others, in existing obligations. 
The meaning of the words arc, that no state shall pass 
lam tending to impair the validity of contracts made in 
Mier states. The argument on the part of the plaintiff 
iMcmsto suppose, that if the statute be allowed, the debt 
*ttenot be recovered, not so ; the contract remains as it 
%is ; all that is said by us is, that when attempted to be 
forced against our laws, they interpose ; but car- 
iHid back to Connecticut, then our statute, or a judgment 
'mder it, is of no avail. The security was taken, subjeoC 
tbrany variations the state in which it was given, might 
llike, and also to such as any other might adopt, where it 
VhkNild be put in suit. After the defendant has resided six 
I in this state, the statute attaches wherever the con- 
is made. For the words of the act are direct and 
I^Oritive* ^^ No action shall be commenced,'' &c. without 
ihbnnce to the citizens of this or any other state. Under 
Ihdetter and spirit of the act, the suit ought to be brought 
hritluii six years, or the plaintiff should shew himself with- 
b tl^ proviso. If the legislature choose to pass a law, the 
ecNirt cannot say they have no right to do so ; and it is to 
iie-observed, that this statute is only a continuance of « 

a I 


MEW-YORK, former act. Allowing the defence does not deny the 
' tract ; on the contrary it admits, but avoids. We say 
have brought your suit here, and all that you can daii 
the benefit of those laws to which you choose to resort 

Per curiam delivered by Lewis, C. J. This is an i 
on of assumpsit on two promissory notes made by the 
fendant to the plaintiflT. The plea is mctio nan accrmi 
fra 9ex anno8. To this the plaintiff replies, that the ca 
of action arose in the State of Connecticut ; and was c 
tracted with reference to the laws and customs of 1 
state, and also that the period of limitation in that state 
personal demands is seventen years. To which the ' 
fendant demurrs, and the plaintiff joins in demurrer. 

The question arising on this state of the pleadingi 
fthall the lex loci contractus govern, or shall it not 7 

It is a well settled rule, that contracts, with a feir < 
ceptions, are to be construed according to the laws oft! 
country, in reference to which they are made. But il 
equally well settled, that the remedy on them most 
prosecuted according to the laws of that country, ui wU 
the remedy is sought. In the case of Duplienv«Dc 
yen, the cause of action arose in France ; itwasei 
judgment obtained in that country. The defendant pifl 
edthe statute of limitations, and held a good barta' 

In Lodge v. Phelps, decided in October terra, IVH 
was held that though promissory notes, made in Qm 
ticut, were not there negociated, they might be negDl 
cd here, and a suit maintained on them in the naneff 
indorsee. For that the principle pf the lex locii fUK 
affect the form of action, but shall have referencefl|l^ 
the nature and construction of the contracts, andilvli 
effect ; not to the mode of enforcing it. ■»« 

In a much earlier case, viz. that of Page wmd <fil 
decided in this court, in April term, 1795^ thfirifNi 
' question now before us, came under conaid 
was an action of assumpsit, on a promisBOijr-i 
in Connecticut^ by George Cable, to Jon«dna(i(( 
defendant, and by him indorsed, to David P|ige,lteplt 



iflr. The whole transaction took place in Connecticut. NEW-york, 
The plaintifT declared, first, under our statutey as indorsee \.^Il!-^^ 
*4econdly, on the indorsement as a special agreement ; ^^^ 
«tting forth the contract as originating in Connecticut, Tuppcr. 

ind the defendant as guaranteeing the payment by G. Ca- • 

ble, and on his default engaging to pay for him. 

The defendant pleaded the statute of limitations of this 
Hate, and the plaintiflf demurred ; alleging for cause, 
dnt no such statute existed in Connecticut, where the 
cause of action arose* 

' The court said, that the defendant having elected, to 

fmecute his suit in this state, he must pursue his reme- 

djr agreeable to our laws, and that our courts could not 

diipense with an adherence to the requisites of time, place, 

ud manner, of commencing and prosecuting a suit, be- 

C&ise the cause of action arose in another state. They 

ttnceired, that such adherence by no means impaired the 

toUigation of the contract, and they gave judgment for the 

4efeiidant. The correctness of those decisions, I feel no ' 

Ifisposition to controvert, but conceiving the law on di€ 

"foint as settled, I am of opinion, judgment must be for tht 

Pendant, and with this opinion the Scotch and Dutch 

"Inrs accord, as will appear from Erskin's Institutes, vol. 

•^1 5S1-2 ; Kaimes' Equity, vol. 2, 358 ; Huberi Praelec- 

lioiies, vol. 2 ; book 1, Tit. 3, De ConOictu Legum, sec. f. 

Livingston, .T. To tliis action, which is brouglit on ccr- 

tlb promissory notes mode in 1791, the defendant pleads 

^'Statute of limitations, or tliat he did not asaume withiii 

^ years. 

^•■Itie plaintiff replies, tliat the notes were made in Con- 
IMeticnt^ and with reference to the laws of that state, 
^lUch sostain an action of this kind at any time within se- 
venteen years atler it shall accrue. 

* 'To this plea, the defendant demurs ; so that no other 
pMion occurs than whctiier we are bomid to enforce tiie 
lim i tat ion enacted by a statute of our own state, or allow 
the plaintiff the same time as he would have bad before a 
. in Connecticut i 


NEW*YORKt In the expo^ition of foreign contracts, courts take notior 
^ ^-'^^ ^^ ^^^ ^^^^'^ ^* ^'^*^ ^^^^ ^" which they are made, or maui- 
fest injustice would ensue. This is a dictate of comoKn 
sense, and is become a principle of general law. In suiti- 
'on contracts made aljruad, tlie parties in their pleadings 
must observe tlic forms of the country where the action b 
depending ; but in deciding on the merits, the lex lod ' 
will be the rule. Tliis distinction is found in the Koana . 
and French law, and Emerigon speaks of it as adopted i>j, . 
all eieinoiitary writers. 

*' Pour tout ce qui conccrne Y ordre judiciaire (or forfl 
" of action,") says tliat author, "on doit suivre T iisag| 
<^ du lieu ou V on plaide, mais pour cerjui est de la ieon- 
** sion du fon, (or the merits) ou doit suirrc, en rcgb . 
^< generate, les loix du lieu ou le contract a 6t6 pass^a *' 
** consuetudine ejus regionis in qua ncgotium gestum." 

Another author on the same subject, holds nearly the 
same language. In his qu;e rcspiciunt litis decisioneoiy 
servanda est consuetudo loci contractus. At ia his, que 
rcspiciunt litis ordinationcm, attenditur consuetudo loci ubi 
causa agitur. 

Emerigon also mentions an instance of a suit betwccB 
two Englishmen in France, in which the plaintiff insiittA ; 
on proving by witnesses a parol contract for aloaa cA '* 
ceeding one hundred livres. The defendant pleadcd.fl I 
ordinance resembling in some respects our ** act for^ j 
" prevention of frauds," which required contracts of tfcjl I 
amount to be in writing, and no other proof was IO.Jb| 
received of it, but the instrumt^nt itself. The PaxUa0|CSl 
of Paris, however, determined that this being a valid Mf ■ 
tract in England, when it was made, tlie ordinance didjNl 
apply, and the plaintiffs recovered. " II fut jugii| ,^ ] 
the author who reports this decision) parte parieiDcA^ \ 
Paris, que 1' ordonnance n' avoit point lieu, d'autasllfif ' 
elle va ad litis decisioneniy or to the git of the nctio^'tir 
Traite des assurances, ch. 4. sec. 8. .... ,- 10 

On a point of general law, where we have no mb lnAl 
contrary, I cannot well err in conforming to Qnt^ jkUiI 
Xft find adopted by a foreign tribunal, heretofore .| 


most distinguished in Europe, for the purity and wis- NEW-YORK, 
I of its decisions : a necessary consequence of the ^_J^' -^^ 
It learning, integrity, and independence of its judges, 
the same rule I conceive prevails here. A note bear- 
a yearly interest of more than 7 per cent, if made abroad" 
I lawful there, may be recovered here, notwithstanding 
' statute against usury. I see no reason why the same 
pect should not be paid to the limitation acts of ano- 
r state. Our statute against usury is quite as impera- 
; in avoiding the security, as that which prescribes the 
le after which a suit shall not be brought; yet courts 
re invented, or sanctioned several exceptions, not with- 
ts provisions, to prevent a failure of justice. Thus, aa 
inbwledgment of the debt has defeated its operation, or 
ested its course. Why then not regard an exception 
ated by the parties themselves, which must be presum- 
to be the case whenever they contract, with a view to a 
Ferent limitation ? No violence is done to our law, by 
rmitting them to establish for themselves, a rule differ- 
t from that which would take place in case of their si- 
ice. If the defendant had agreed in writing not to avail 
nsclf of the statute of limitations of this state, if the suit 
Te commenced in seventeeen years, a doubt can hardly 
eiCertained of our giving effect to such an agreement. 
serceive but little if any difference between a written 
Qtractof this kind, and a case in which the defendant 
ttt be presumed to have had In eye, the laws of his own 
rte, and therefore, have virtually agreed to pay these 
its, if sued within that period. To leave his state, there- 
re, prior to that time, and then set up a defence in vio« 
iimof his own engagement, and llie understanding of 
frplaintiflf, is an injustice which ought not be suffered, if, 
dmit a breach of duty, wc can prevent it. It may be 
Id, that if a paity becomes a suitor with us, he must be 
imdby our laws. This is true, as it respects the form 
action, or mode obtaining the remedy. Courts will and 
^ to adhere to their own forms, but in deciding on the 
wits of the demand, or defence, they do not derogate 
« their dignity, by enforcing the laws of a state, where 


NEW-YORK, the contract originated. The present defence is a p 
.^^' ^^v tual bar to the action, and therefore involves in it, the 
rits, and not a mere question of form. If so, the lai 
Connecticut should be our guide, and not those of our 
state. Inforo conscientis, the plaintiff's case is a clear 
The defendant by his demurrer admits, that if he hac 
come to this state, the plaintiff might and ought to 1 
recovered. It would be matter of regret, if we werec 
pellcd to listen to as unjust a defence, considering the 
understanding of those parties, as was ever oUtruded 
on a court of justice. It would not be easy to sssif 
reason why an obligation incuiTed in one state should 
cancelled by either of the parties flying to another. 
are not, in any opinion, under the necessity of estdbl 
ing a principle or practice which may so easily be abui 
and must always be followed by great injustice. Sol 
as we arc at liberty to expound contracts lege loci^it is 
duty to discountenance a defence^ which in such coue 
would not be allowed. When the defendant left Conn 
ticut, the plaintiff had a good cause of action ag^onsth 
which ought not to be defeated by his own actf in con 
among us. I think, therefore, that as this defence 
nothing to do with the form of action, but strikes al 
plaintiff's fight to recover at all, we should apply to I 
case, the limitation act of Connecticut, and that as self 
teen years have not run since these notes were made» 
plaiiltiff should have judgment. 

The People of tlie Stale of New- York against C^ 
intmMon for Browii and others. . \ ^ 

iZ^P^Zf THIS was an information filed at the direction j^l 
lie before ofli!'^'^S*s^^'^^^^i by the late attorney-general, agunst .^j 
found. iiKrari- fendants, for an intrusion on certain lands lyinK^L 

on mu«t be on ^ '^ *^ 

the acrual pos- COUnty of O tsegO. , , ^ i^^ 

r^t^?c. ^'1 he '^^c defendants claimed under letters patent, of %^ 
5S?i2VeSn^^^^^ Septen:ber, 1770, for 9200 acres, granted by his|^ 
est forbrelch ^'^^^""S^ ^^^ ^'^^^**» ^^ Great Britain, France aiyi^ ](q|f 
of condition by King, &c. at a quit rent of two shillings and 4111 JM 

matter of re- i- r i i i at* ir^'^^ 

curd oDi]r. stcding, tor every hundred acres. After ue umy M 



ations of mines and white pine trees, for masts, the grant nfw-YORk, 
ontained the following proviso. *' Providi: o, further, y^^^ ^^^j 
^ and upon condition also, neverthclcbs, and we do here- "n** ^001)16 

* by for us, our heirs and successors, direct and appoint, Brow». 
*that this our present grant shall be registered and enter- "^ ^ 
^ ed on record, within six months from the date hereof, in 

** our secretary's office, in our city of New- York, in our 
^said province, in one of the books of patents, there rc« 

♦ maining; and that a docquet thereof, shall be also emer- 
ged 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 pre- 
^ icnts contained, to the contrar)', thereof, in any wise, 
•• MOtwithstanding.'* 

' It was admitted, that no docquet of the said letters 
patent, had been entered in the office of the auditor, pur- 
Hiant to the said proviso, but the following entry made 
iiiice the year 1797, is found in a memorandum took of 
fitents in the office of the comptroller, of this state, to wit. 
^1558, patent eranted to Leonard Lispenard,* and /."^J"*"* 

' •. ° * of the trst |>». 

•■ Others, for 9200 acres of land, in Albany county, dated tcmcc 

•the 6th of September, 1770, at two shillings and six 

^pencc sterling, for every hundred acreb.'' About the 

^tlBietime, when the ai)Ove memorandum was made, Sa- 

"tMiel Jones, Esq. comptroller of this state pursuant to tho 

%W8 relative to quit rents, caused the aforesaid tract 

cf land to be advertised| for payment of the quit rents | Undn- the 

^ln^ Sth Bcccion of 

•^^* the " act con- 

** It wasfurtheradmitted,that on the 3d of April,tr99, the "™*"J^ M^t 

__ . , I ^ » rents, parsed 

'una of g3 84 cents, was paid into the treasury of this state^ the gth of A^ 
"ly George Stanton, one of the original patentees, in pur- 

MttiGe of the act, for the collection of quit rents, as the ar- 
Iwi and commutation then due, on lots no. 41, and 42 -, 
'ndthatonthe28th of October following, S3 82centswere 
^llHke manner paid, on 50 acres of the, by one Jesse 

ClaA, who had purchased under the patent, from which 
tfiedefendant. Brown, derives his title ; but neither the lots 
Waad 43, nor the 50 acres on which the said g 3 82 cents 
I paid, constitute any part of the lands in his tenure. 


Niw-YORK, On these facts it was submitted to the court, whc 
the (!cf':nd ants were or were not guilty of the intrui 
comr^Minod of. 

Spencer, Attomey-Grncral. It is admitted that tl 
was no docquet entered in the auditor's oftice, accord 
to the proviso in the letters patent. The informatioi 
grounded on this principle ; that the forms required by 
grant, created a condition, proviso, on limitation, wh 
was to make it void, on the not doing a certain act by 
patentees. If, therefore, this act hus not been perfona 
the instrument is a nullity, and the people have a righl 
consider all persons now on the land as intruders. It n 
perhaps he urged in behalf of the defendant, that the 
concerning quit-rents has done away the forfeiture : eij 
cially as the officers of government have received the qt 
rents due, and have^ therefore, considered the patent as 
existence and good. That, however, will depend oo wl 
thcr the not docketting the patent within the timelimiti 
did not canse the estate of the patentees to instandy cca 
or whether, even allowing the contrary, the payment coi 
purge the forfeiture for more than those very lands 
which mivlc, and which do not include those for wh 
the intru5:ion is brought. There can be no doubt thit^ 
ery grantor, whether a state or an ind i vidua!, may amwi 
his grant whatever conditions he pleases, provided li 
arc not repugnant to principles of law. Here the ooi 
tion is, that the grant shall ^^ be void atid of nomittJftL 
Therefore, the acceptance of rent could not restore ^1 
was gone. Sir Moyic Finch's case, Cro. Eliz. 33i|ibri 
the soundness of this position. This, it may be «aid|1 
the case of a demise for }'ears. A distribution, thawft 
may be attempted between that and the present, wUd 
of a fee. In fact, however, the diversity docs BOttfl 
amlkd'^tou''" 1'J^is the court will see in 17 Vin. 81. pi. 1. n.» it k*i 
toucr,"cvo. ^'^^^ ^" ^"^ ^^^^ ^^^ estate is void, and in the othervOl 
Car. ioo,2 Rca. w^ . b^t whether the determination be by the saiiie«il 

but uiat merely ^ , ' , ._■_. 

determined as create the interest. The proviso here waa«littuW 
ycafH reserving which ended the estate on non-performance, becailltiil 
Sc cxclcqua^was created by matter of record, so it was to be destrof 


f matter of record. It is generally Uue, that where aNEW-YORic 

reeholdis to be defeated, entry is necessary, but it is not ^^. ' .-<^ 

3 where an act that ought to appear of record is not done* '^^ People * 

t is laid down that if an estate granted by the crown de- Browib 

ermine by a condition broken, the Kinc; shall be suited. T! '^ 

. , 1. - , . 11,. " ^^^ **° "°"- 

fittioutomce found, where the breacli is apparent upon paymmt.witii- 

•conL 7 Com. Dr. SZ. (D. 70. J) It is the revesting of whiTcas*!'f"'»ic 

iM estate which we contend for here. This makes the "*;he?«lw^ 

Mcrence between the present question, and that of Van 5a?^|;n^''°"Ji,. 

lehaick in 1796. in which it was decided, by the court of s^^offi^^' 'und 

' docs rof VI- 

B, that a new grant would not be made till after of-catc ih. rra- 
he found, not that an information would not lie befort. at the cnwn '' 
Acre can be no doubt of the words used in the grant ere - by reconi,^it-^^ 
■br a condition, Lett, Sen 329. which was a limitation ^ ^"i >°>orm. 

^ * ca oiiiy by rc- 

trquaiification of the estate. For this purpose the word c(»^ ; the non- 

!•..«•« . . , /. ^ 1 1 /• . payment to the 

^fiovided" was certamly the most nt. On breach of it, recdver is a 
jia estate must be judged in the grantor, or, as here, the whenfoun^^bf 
BMplet Litt. Ser. 350.* So here as the nonperformance J^^^ ^^^^^^ 
lis a record, the right to proceed by intrusion accrued |j^"°°j[P*][["^ 
Ibbre office found, the estate of the patentees being to- ^^F^'i?"^''- ^^ 

-M *• 1 mi . , . . , , t''"- however 

ally divested. The next consideration is, whether any doubter* zRois. 
Ifing kas been done to waive the forfeiture. This may \ tiic cues 
It laid down as an established position, what is void can- ^^'^^f^^^, 
nt lie confirmed, what is voidable may. As then the in- ^1*^2*^/^ ^ 
9m of the patentees was absolutely annulled, the receipt Xf^^^^^con^ 
f the quit rents could not revive it, Jenkins v. Church, fee, on payine 
!bvpw 4S3, Doe v. Butcher, Doug. 50. Even in voida^ at the eoAot ' 
laaaaes the mere acceptance of rent, unaccompanied uvcryVfld^^. 
Miaiiy other circumstances, will not work a confirma^ JJ^*^^ '^^^ 
iMbi • No receipt can revive or confirm, unless taken \^**^ ^1 **»^ 

-2-i_ - iirti.*.. . . . plication be- 

BHl^laiowledge of the forfeiture and an intent to waive. »uae grantor 

Bi.^ ^ • • 1 . « could not enter 

M eet concemmg quit rents does not recognize any loss upon the 
ftlMeitt the defendant, or others holding under the same hu'o^"j^an^t. 
No payment therefore to an officer acting by au-{{jJ^.^iJJ^J^ 
' of a general law, with a power merely to extin-^*»f }*»<i; . 

ij *« 1 , ,, . §SccGreen*i 

I q«it rente could revest. All that he could do was to <»•«> Oo EUz. 
riiie. right of the people on them when due, and not by ^K>n,^s^'D.^ 
I if not due, to give away the land of the aute. ** *"^" 


Nrw-VORK, Emmot and Van Vccten contra. Though fron 

Nov. t8o^^. • , - . t 1 *« t 11 11 

\,^i*^^^-^/ length of time the dcfenflant, and those under who: 

The People claims have been in possession, the case is a hard 

Brown. still we are ready to exculpate both the present and 

"""■""""" attorney-general, from all imputation of rigour. 1 

have acted only ki obedience to resolutions of the leg 

hire. The case divides itself into two questions. 

Whether the grant be void, or voidable ? 2d. Whet 

if so, the present form of action is the appropriate re 

dy ? Whether, void or voidable, will depend on a nim 

of subordinate enquiries. We did not, it must be conii 

ed, expect that the proviso would have been urged au 

mitation, which goes on always to a certain expres%li 

^.1 -^.^P ^°"- of determination : it is a condition* and nothine moKi 
4itlonal liinita- . 

tioiiMcei-'c^rne which case, as the estate might contmue over, uwaa n 
«(L 9. able and not void. • But the words in question, cteai 

neither the one nor the other ; they were merely dine 
ry on the officers of government, and did not obl^ ii9 
do any thing : they are separated from the conditions 
which the grantees were bound by specific acts* T 
words are •' we direct and appoint." The clattse itsdi 
rare, this being the only grant we can find in whicb:it 
contained. The o/ncers of government ought, the diB 
being directory, to have given notice to the patentMi 
come in and docket ; for, to the patentees, themiolil 
the act was nagatory, as they had complete evideno^ 
the right by the grant itself. But, considering the jb|M 
as a condition, then wc contend it is repugmuH to th^^l 
and void. It was for an act to be done by tbe qfn 
of the crown, for the benefit of the crown aloB^. icjki 
the same as if a grantor had conveyed, on coo 
lie should himself lodge the consideration money. i 
days in the United States bank, or the co^viejMMli 
void. The result would be to put the whcrfe gr9nt«fM 
the pbwcr of the crown ; or what is the same thnigbfril 
in that of its ofiicers. But should the condiMfuMl 
proviso be deemed a valid one, and obligatory/iMltSill 
say it has been performed ; for if the intent boiWilili 
with, ii is sufficient. That the leaning of the ooMlli 


Inst forfeitures, we cite Ball. N. P. 96 ; and that the NEW-YORK, 
nt, and not the letter of the words, ought to regulate, v_^ ^ -^y 
p. Touch. 139,* 1 Aik. 375,$ Daley v. Desl>ouvcire, ThcP«>x*s 
.Ik. 261, and the cases cited in p. 1. What then was Brow«. 
intent to be answered by this docket ? Merely to in- ~ ~7T 

r . . r , 1 r' 1 * That is if ihc 

m the court of the existence of the grant, and the value act done be ia 

he reser%'ed rent, that no interfering patents might is- mount to the 

, and the amount of its revenue be known. The entry, prei^idt as""to 

rcforc, in the comptroller's office, taken from the old j^JJ^^^^*^^^^ 

autes there, was fully adequate to every purpose. For executed. Sa 
. , . , . , , in the case put 

•Ugh two acts are mentioned in the proviso, to be done, iJtt. Scc. 3.S1 

Ices not follow that both arc necessary to be performed, of cy^pres."* 

iDg V. Denni6,§ 4 Burr. 2052. In the present case, aJo? thcToi 

irever, after a lapse, of 30 years, in a country circura- <i^^^" ^«^«^ 

, ' was marrying 

Bced as this was, durinor a revolutionary war, and when with consent. 

11 J I. J_ i_ The other au- 

! very record may be supposed to have been taken away thority from 

the officers of the crown, to presume a docket regularly aiso"o*condi" 

:eiicd, is no more than what the law will warrant. Be- Jj°?* *V""^ 
^ tramt ox mar- 

l's Case, 12 Rep. 5. Should It nevertheless be held that rw^^ 

i forfeiture was incurred, we still contend that it has was a decisioa 
en waived. The argument urged against this position, traint of mar- 
it there is a distinction between the acts of individuals, ^/^'^JUiJ^^^ 
i those of officers of government, is contrary to the im- ^"j ^j^di^ 
cation arisincr from the case of sir Moylc Finch, relied junctive, pcr- 

. -,» ° ,^1 1 • i_ ILL formancc there 

on by Mr. Attorney, ror the people is bound by the foreof oneiuf- 

tsof its agent, in the same manner as any common per- ^^^^^ ' 

D. What then are those acts I First, the permitting 30 

ars, to elapse in silence ; next, the comptroller has 

i3e a record or docket, by entering the memorandum 

aed in the case, to have been written in 1797 ; it fully 

ti forth the dates, parties, and rents : this too, is an act 

a- public officer. I'hirdly, by • advertising these very 

ids for the quit rents due, under the authority of the act 

mtioned in the case. For the language of the adver- 

kmentis, we claim not the lands, but the quit rent due. 

lirdly, the comptroller has received, from one of the 

benteet, and from a person holding under the grant to 

sm, quit rents for some of those lands, and though they 

re been paid but upon portions of the tract, yet they will 

crue to die benefit of the whole grants Ooodn^Va^. 


KEW-TORK, Davids, Cowp. 803.^ Pennants case, 3 Rep. 6 

V _^' '^ » Greens case, Cro. Eliz. 3§, 3 Salk. 3,1f Independe 

The People ever, of what has been before advanced, we conte 

Brown. an information for an intrusion cannot be supportei 

■"^ office found. This is absolutely necessary to en 

there %Tas that people to proceed. In the case of common personi 
ren?aftc"con. intended to destroy an estate for a condition brok 
wS^oSVSf ^"dispensable that an entry should first be made 
the breach, !• Touch. 153. Whenever an entry is required of at 
the forfeiture, dual, an office must be found for thc^ King, Rep. 
t^ut^nl^'' 16 Vin. abr. 84, pi. 24. p. Ibid. 83, pi. 19, 20. 
Siudcdto^^i ^ ^''^®^® ^® whole estate has become void by the nonp 
know not; po*.ancc of the condition, still an office must be found 

sibly the third, , . , ,, . i ..• «^ . ^. i 

but that goes the tenant can be held an mtruoer, bur Moyle Fincfa 

SSo^*Sn''"2 Leon. 143. Payne's Case, ibid, 206. Thepn 

bSScMM^^*^*" vhich the attorney-general relies, being a conditii 

5 Determined the estate uuder the patent taking effect immediatd 

that receipt of • , . i i ^ . ' 

rent due, does plam tiiat the grant was voidable only, and not abi 
cntryy^ut S?' void. This being so, and nothing done to avoid the 
^th?mle^t ^°^^ P^^ ^^ people into possession, intrusion cannot 
caiung the ics- jt is essential to intrusion that it be on the actual paw 

ice, his firmer t*"— ^ 

or tenant, it of the crown, 3 Black. Com. 261, Moor, 375« Tl 
i i hat was an in all cases of forfeiture, &c. intrusion will not lie ti 
rcn?from the found, this being the legal substitute for entry by a 
a?5^gTi«^of V" ^^^^^o*** *"^^ ^^c o"'y ™*ians for the crown to regain \ 
it;asc krowin. ^essiou, for thc injurv to which the intrusion is b 

liim to be the ^ . ' . . * , 

exccutor4iciaaLitt. Abr. p. 97. (L.) Moor, 296, 7. That this k 
iwrdture for bc done by office found, Parstow v. Corn, Cro. £1: 
"ii^^^ir George ** ^^ authority fully in point. Besides, tlie title cie 
Fevnt 1*8 case, the patent was matter of record, and of courasi 
j ioor arc, ;< an avoided by that which is of equal solenmityy Flo 
" for i!itrusion aud the cascs there cited. I'he only method thea t 
" ^u't^lsr^onai' ^^^'^ pursucd, was, by an office finding thefocfeiUi 
« rc^mbks'irf i"'*'"^^" w^oii thai. This will appear still mora «i 
" all points, a wc coubider the eflect of the difierent proccedinc& 

«* trctpass a- . r r.- *• • i • 

" cainst a cub- inqucst of ofticc, pcrlormance ot the coDdiUon, or: 

«suppo^^hc ^) ^i>^ creditor which is tantamount,*^ might Jw 

" ^cliicllion- ^'^cwn? but this could not be done under an infrnw 

•• lo Ktp. 67. intrusion, which merely states the possesaion of iIk 

and tUc dcfendaxA? % vuxxxmN^ ^fvu^ ^ Case qf iiuaa^ 


I Hep. 28, ViovTj 479. The necessity therefore of these NEW-TORK, 
Beusures must appear, that the parties might have notice v^''^# 
•f tiic grounds of the claioi against them. This cannot be The People 
done by the information now brought, wliich is not hke a Brown. 
writ of escheat that sets forth the whole claim on the part of 
lltt crown. If what has been laid down already for us be 
Irae, that the docketing was a duty to be performed by the 
rfker, then it is for the honor of tlie crown, as the old books 
117, to be presumed that it has been done. Case of tlie 
Churchwardens of Su Saviour, Southwark, 10 Rep. 66. 
for it can never be imagined, that the crown would make a 
gimt, dependent for its validity on acts to be performed by 
Mfy and omit those acts. Let it t>c observed too, that no 
fim of docketing is prescribed by the grant; and as the 
leroIutioDaiy war has intervened, it may well be intended 
Att the entry made in the comptroller's office in 1797 was 
\jl way of docket, wluch would be no more tiian a memo* 
Modum for the guidance of tlie officers of tlie crown. If^ 
kwever, the proviso he a voidable condition, then the 
4octriiie of waiver will apply. For government can never 
ie iU|q>osed to do so great a wrong as to permit men 
i»oiake improvements, then offer to receive a commuta- 
tioQ in discbarge of quit rents due on those very lands which 
ih^daiiii as forfeited, receive the amount, and then at- 
Inpt to defeat their grant. Because, having dispensed 
^tkb tbe condition in part, by a partial receipt of quit rents, 
^ condition is dispensed with in the whole. Cro. Eliz. 
^M.^ This species of construction is due to the liberality • Dogmer v. 
I we are to suppose, constantly actuate the^*^- 
\ of government, and is a principle universally 
^rinwledged. 9 Rep. 131. I>enley 's Case. Rolyn's Case, 
C&p. 5. 10 Rep. 67. In a more ^^eculiar uianner is this 
Hjhe adhered to after a lapse of iO years, when the rigiitA 
if lUrd persons, boni £de purchasers, and others, are ini- 
Ifcufed. In Van Schaick's case, it was settled, that where 
ftfisrfeiture was apparent by matter of record, then a scire 
Imm should go; when it arose on matter in pais, an o&ce 
MOBl be found. The information therefore must fall. 

r in reply. The words ofthe proviso are sufficient 
: the dodtctipg was not directory to the oiSicct^ q& 


NEW- YORK, the crown. The grant was to be valid on doii 

K_^l'^^^/ acts, some in pais, some in record. If not peric 

The People certain time, the letters patent were to be void. ' 

Brown, direct and aiipoint, are declaratory to the jkifcnte 

estate i^ranteil should be subject to the conditioi 

rei;istcrin«r and docketing;. This must always 
re:]uest of tiie parties, who must do an act towar 
lie, accordinprto the colonial system, had to{>ay 
ing done, and therefore was clearly a duty in th 
is coupled with a stipulation, that ii' it be not p 
the letters patent shall be voiJ. This luakes the 
limitation; and when so, it is not necessary that 
should be found, because the crown would be iui 
rcseized. l*oph. 53. Whether, however, itbcc 
as a limitation, or a condition, is iui material; foi 
M-as necessary. It is riMjuia'd only to make the 
known by matter ot recoril. Here the docket for 
of record, and whether the grant was dockelec 
1^'ould api)ear by inspection of the records. The \ 
therefore being thus by matter of record, needed 
found by office. I'hc authorities cited by tlie odK 
in conformity to this position. 2 Roll. Abr, 215. 
100. Stephens v. Hotter. On tlie not docketing a 
to the terms of the proviso, the estate of the iMte 
gone, and this being by matter of record, the {M 
reseized. No act, inerefore, of their officer m tal 
not due, could revive an interest absdiitely mvi 
null. The cases from Croper and Douglas win 
into, will sJiew this, though tliey are quoted as m 
against the people. The principle they settle ii 
acei!ptance will waive a forleiture, without kiiowJe 
the circumstances by which that forfeiture was 
The jMMiple had acfjuireil fee on breaich of tbac 
'J he <juit rents thervlore were merged, and a tortio 
by their olhccr ol' wJiat was not due, not knowing 
be iiuoy can never waive tlieir rights. 

Van Vecten. We say, oy the act he waa ee 

juilgc:, whether quit rents were ciuc or not. . . : i 

Spencer. We say he was not; that be was*. 

ceivcr, de\e«v\\jcd vo xtcdwi oittvtfi. The aa Qf^d 


n making the entry in 1797, was allowinir his acts to ensue new-york, 

• , ■',,-' ? Nov. 1K03. 

to Uie advantage of the defencUint, yet it was not ni tnnc. v^.^^^^^-^^ 
b arguing from the presumption the 30 years lapse h;is TiiePopic 
ifforded, the counsel seem to forget, that there is a law* Brown. 
by which the limitation of suits by tlie people for land, is .^^^f^^j-J 
Ktded at 40 years. It is an absurdiiv to settle a limitation mitution of 

. .^ 1 . . " 'k^ criminal profc- 

ti40 years, and presume against it at 30. Nor can anvcmion8,cuidof 
tiling be presumed from the ivvoltition , because the court j^Rcv^Lawi^" 
iiiows all the papers in the various offices were preserved. ■^^** 
Inoneof tlie cases referred to, the presumption arosti from 
this; that as the deetls were delivered in to be cancelled,! the- 
officer should be presumed to Iiaye eanoelled them ; but 
ynxe the deeds here delivered to be docketed ? On every + lo Rep.67. 
groaad, therefore, we consider the people entitled ; espe- ^*^' 
dally as the want of docketing is proved by the records, 
ttid an office found would be only surplusage* 
• Per curiam delivered by Lewis, C. J. This is an Infor- 
mation of intrusion, filed by the late attorney-general, and 
VOW prosecuted by his successor in office. It comes be- 
ibit tlie court on a case, which sets forth, that a royal 
|^t,by letters patent issued, in 1770, to J-conard Lis- 
peoard and others, for 9,200 acres of land, now^ in the 
county of Otsego, but then in the county of Albany, on the 
«|inaal quit-rent of 2s. (kl. sterling per hundred acres. The 
.gnuit contains sundry conditions, on the nonperfomance 
•Ofany* of which it is declared to be void and of none ef- 
ifcct- Among the number, are the following, that the 
#lBt shall be registered and entered on record, within six 
AUtths from the date, in the secretary's office ; and that 
JIfbckct thereof shall be also entered in the auditor's of- 
Sau Jx is admitted, that though, the letters patent were 
^ioty recorded, no docket was found in the auditor's of- 
tm ) but that a note of them is found, entered in a memo- 
«lltihiai book of patents, kept in the office of the compt- 
-loBer of the state, bearing date in 1797, and that die quit- 
ttata, on parts of the tract, have been paid to the existing 

The defendant claims title under the said patent, and 
thftciacstion for the court is, GuiUy or not Guilty. 


W^-YORK, May 1799, caufed a writ of capias ad refpondendnm to be 

Kt^^^C-"^^^ iflued againft him, which was returned not found ; wheny 

^taiSdwf ®" *^y> on the 10th of Auguft 1799, caufed an alias Gh 

o A B Th- P*^* ^^ refpondendum to be fued out, which was alfo ft» 

bitt. turned not found, and that they had not been able, hf t&e 

•J means aforefaid, to compel payment of the feveral fuim of 

the aifiniee of 1000 dollars due on the 1ft of May 1799, nor of the fim 

JicdSSdfr^SSI of 1000 dollars due on the 1ft of May 1800; bynafal 

min^ihe af- ^^^^^^f ^he Defendants became liable to pay lint bms 

flgnor bccauie Neverthelefs they had not paid the fame, &c. and fedi 

he hat not ' ^ 

irroved the a- faid Abraham and Conradt fay, thefaid George and Beifi^ 

the debtov'a min have not kept their covenant fo made as afopefiul, Aa 

*^^ To this the Defendants (after demandingoyer of thekulj 

condition, aflignment, and covenant) pleaded in bai^ 

1ft. That the Plaintiffs «< did not ufe all due Oiiipm^ 
^ and take all legal meafures by profecutton at kw tor0^ 
<« cover the faid bond, immediately after the firid ■ femd 
«< fums mentioned in the condition thereof, refpeStiftif he* ; 
•♦came due,** and this they »e ready, &c. wl iewfet e Aef 
pray, Sec. 

2d, By proteftation denying that Rennington was, at thrf 
feveral times after mentioned, infolvent, or was, asd Jet i 
\mable to pay and fatisfy the faid bond ^ they iufdierpM^ 
ed, that when the firft inftalment of 1000 dollars, wkhit^ 
tereft, became due, on the firft of May 1796> Renniflglo^ 
did not, nor hath fince paid the fame ; fo that the bondfkel 
became forfeited, immediately after which the ptaintiAdU 
not, nor imtil long afterwards, to wit, on the firft af Mif ; 
1799, take any legal meafures oh the bond againft ibftdl^ 
ligor and this, &c. Wherefore, &c. ' 

3d, That they did not profecute in like maniierfti'di 
inftalment due in May 1800. • ' ■ 

4th. As to tlie inftalment due in May 1799, dli»l# 
nington at the time of executing the bond in ifaM^.^ 
transferred alfo as a further fecurity, a mortgage dll 'mm 
in Renfdaer county, which they had affigned tugelhai pl ! 
the bond to the plaintifis, who, on the firft of MiWdriNF 
1799 fold the preiAifes for 1510 dol]ars> and thwpndAi^ 
felves the inftalment oi May 1799- - '^^ 

icnr m^ffTATE of NEW-ttNUL Mi 

«di». As to die inftalmeiits due in May 1799^ and ISxf HBW.YMl^ 

«H diatEeunington, after the firft of May 1799, and be- w^;^!^ 

pe die firft of li£iyl800» to wit, on the firft of November T^iydMfc 

My paid andciatisfied to the plaimifis the £eireral funa ef t, 

no dollars due by the condition aforefaid. ^' %£i'^^ 

Xa die ieveral pleas thus put in, the plaimifis repBed r- n , ^ 

►dMp 1ft, payment of the 1000 doUar inftahnent due 

iltfi^ on the firft of May according to die condition | 

li^as to the fumof 1000 dollars due on die firft of 

hqp 1800, Rennington's abfconding on the S5th df 

N t i Wb s r 179S, and due diligence as to the inftahnent 


T<ethe Sdy Payment by Renningtonof the 1000 doUars 

bdie M, That before the fum dierein m^ndoned be^ 
» to witi on the 35th December 1799, RenningtM 

lb ^4di, That they had not been paid, (be 1000 dol- 

It-dneinMay 1799, by the fate of the moitgagedpkemifies^ 

•die defendants in their fourth pka had alBeged* 

9»die 5th, That Rennington had not pJd the inftat- 

^iils<i( 1799 and of 1800. 

To'tlie firft replication, die defendants demurred gene» 

1ft> die fecond, rejoinder,' that Rennington did not pay as 
Bf-pi aii^fls had replied, and ifliiie diereoh* 
^Tb.tlie diird, a general demurrer. 
^Poiliie fourth, rejoinder, diat the plaintift Mtere paid» 
KiKie' diereon. 

iWphbitifis having join^ in die demurrers, the caufe 
HbKiQiw argued by Harrifon and Emmott for the defeildi- 
iktiaiid Tan Vecfaten and Woodworth for die plaindfis. 
^iJDlttiott. This is an a£Hon of corenant, and is brought 
ttMs^-die court on two demurrers by die defendants, te 
I MMI md tMtd replications of the plaintiffii^ Theplead- 
l^iM^ no means intricate, and though it might be fuf- 
ftdfc tj^oidiifine ourfolYes to the demurrers only, yet it h 
MbAnt'At declaration itfelf is'defefHre, and therefore 
m^ftuBtift' can nerer recover. ' The dedaration ftates n 


wr-YORK, fuit been jm>fecnted» jadgmont woidd hare been leooivv 

V^J!!y,«0 ed for the whole penalty, which would have ftood ts a £> 

^Sm^orf^ curity, and would have bound the lands of die obl%Dr. Am 

▼• therefore nothuiGr of this fort is ftated, the dedanttaon is is 

Obind B. Tib- ^ 

bite. itfelf wholly defe£live. 

' Woodworth and Van Vechten contra." -^ 'The jbistit 

come bef(»re the court as £sur purchafers ; therefore, flxnU 

they recover any thing, it is only getting back their o«% 

and the defendants are not injured. The queftion is, vllit 

does the law require that they (hould do before they can hM 

a right to recover. This we are told cannot ariie til il 

the inftahnents are due. The words of the bond and €09^ 

tiant are an anfwer to this } for they are, that the moocf il 

to be p^ by inftahnents, and iiat^ as they become dUb 

meafures are to be taken for their recovery; on fiuhin^f 

which, the defendants are to pay fuch fums as nay bi 

^^tben** due. It is incongruous to fuppofe a bond top^ | 

by inftalments (hould not be put in fuit, till the Jaft inftai- 

tnent is due ; and it is equally ib, that a covviuuit to psy^ 

if fuch bond (hould not be faithfully difchargcd, muft left 

unavailcd of, when the bond is not complied with. The ar« 

gument againft the deckration, for not fetting forth Aft 

payment in 1798, cannot be maintained. Nothing rami 

^ is necefiary ^than to ftate a right to refort to the defendatfi| 

tbat did not accrue till 1799. They are called uposfBl 

nothing previous, and if we are fatisfied as to the paynvt 

in 1798, tt is all the better for them,- who are liable finrcva? 

ry feparate portion of the whole. Neither can ike Jiv 

ment be objefted to ; we ftate Rcnnington became wi 

was infolvent* The covenant requires no more} kM 

not exad a continuance of his infolvency to be flicWAi V 

he was at any time unable to pay, it is fufficient ; Jar A 

covenant does not require that we fhould wait tUktto : 

comes folvent again. If this reafoning is good m oiM^ii^ 

ftance, it is in athoufand, and may be infifted on 

over again. We fhew the infolvency by the 

and proceedings under the abfcondmg debtors' w£k | 

payment on the firft of May 1799, and the legal 

taken by ifluing t&e writs mentioned. The atart yhjtfliii 


ihe want of due diligence. We are required to inftitute ^^^"^ S^*^ 

As only as the fums become due : that is all the diligence v^^p-^^w^ 

quired. The inftalment of '98 muft be prefumed to ** SoS^rt* 

ive been paid : unneceOary, therefore, to fue for that; dB-Tan 

id a writ did iiTue for the one in '99. To continue pro- biu. 

sedings on to outlawry, without any chance of recovery, ■ 

^aa not only ufelefs, but would have been unjuft, as all the 

ills would have fallen on the defendants, the record itfelf 

lewing every part of Rennington^s property afligned under 

le law againft abfconding debtors. It could, therefore^ 

Brer have been the intention of the parties to thus un- 

cceflarily faddle themfelves with expences, and it is a ge* 

leral rule that covenants and conditions ihould be (a ex- 

ounded, as to ferve the intention of the parties. This 

Mcies of diligence could, therefore, never have been con* 

imiriated. The covenant of the defendants was in cafift 

I Renmngton's infolvency or inability, to place themfelves 

1 his Situation, and pay as he would have done, by inftaU 

Dents. The inadequacy of the eftate of Rennington to pay 

■ore than- Icy. in the pound, is a proof of his incapability, 

and it does not appear that even that has been paid, or could 

hnre been received. Allowing Rennington to have proper** 

tf abroad, and fo in faB not infolvent, we are not to look 

to any thing beyond this flate, and the jurifdiA ion within 

wlach the covenant was made. On our part nothing ap^ 

fins to bind us to pvove our debt. It was not our duty \ 

Ae defendants are the legal creditors, and we could be 

€Bly at the mod truftees. They, therefore, having the le^ 

|d right, are the parties who ought to have come forward 

tofsbftantiate the demand. As to the payment of '98, we 

aneat ifiiie on that, though we fuppofe, whether paid or not, 

ilinmaterial ; for, as we may now remit thw wtrhole, and 

tioiierate from all, we furely have the fame right over a 

. fibrrifim in reply. That the intent of the parties is to 
glvem^ we are on both fides agreed. What that is, muft, 
r, be ihewn from the inflrument ; nor can the court 

laok beyond it. The cafes in which the defendants are td 
be liable^ depend on conditions precedent. If ib> tbeanot 


NEW-YORKt only an infolvency, and inablity in Renningtcm to pay OMi 
^^'^-^_^ be ihewni but inftantly afterwards, due diligence and lepi 
T^Eydkwid meafuTcs. Even the infolvency and inability is not ihewn 
▼• pofitively \ it is only << et (ic ;^ now a feisure and file of 

Ucs.* all a man^s eftateand e(Ie£ls in one county, and tbeirbny 
" — infufficient, is not enough j there may be more than enoogl \ 
to pay all his debts in another. In trover, a demand and re* 
fiifal is evidence of a converfion ; yet> if ftated in the plead*' 
iiigs, that the articles by finding came into the hands of die 
defendant, who on demand refufed to deliver them, aad» 
he converted them, it would not be good, becaufe die de^ 
mand and refufal might not amount to a converfion. Tk 
necefiity of further proceedings than the mere ifluing t Oh 
pias and an alias cs^ias will fully appear, if it be coofideP- 
ed, that had a judgment been obtained, it would have boond 
fubfequently acquked lands, and even in the hands of ex-' 
ecutors. Befides, the diligence covenanted ibr nqmro 
more. The plaintiffs held the only evidence of the dett 
due from Rennington ; this they ought to have proved Hin- 
der the affignment made by virtue of the aUbon^ng do- 
ors' a£^, that thofe for whom it was held might come in fiic 
the benefit of a dividend on the amount. Allowing, there- 
fore, the infolvency and our liability, the court will ncc efr 
lily fay we are, on this ground, difcharged. The pfldbf 
over the firft inftalment is ndt quite clear. It is co n ttBde l 
the plaintiffs might remit that payment. No fuch daf » 
for if unable, and in tottering circumftances, legal 1^ 
ought to have been inftantly taken, and a judgment 
ed for the amount of the whole bond to give that 
and lien which now is loft. It was giving time, aodtklt 
will make the debt the plaintiffs* own. The obtaimiqffi)^ 
ment of the firft inftalment, was a condition precedtttW 
our liability, and ought therefore to have been (hewn. '41^' 
it has not, the defendants cannot be called on in this aAMi 
Thompfon J. The exceptions taken to the declanddfti^ 
1ft. That no a£kion could be maintained on the ctmtM 
againft the defendants until the laft inftalment in tlieMi 
fell due, which was in May 1 80K The prefent aAidO «• 
commenced in 1800. 


Sd. The infolvency, or inability of Rennington to pay, Is NEW-YORK, 
»t fufficiently averred. ^^^--^J-^mtl/ 

3d. It does not appear tliat due diligence has been ufed ^^ji^JndorV*^ 
;ainft Rennington, to recover the money. ▼• 

4th. No notice is tukcn of the payment that fell due bits. 
rft of May '98. 

I think all the objediions untenable. The reafon urged 
1 fapport of the firil is, that altliough Rennington might 
a?e been infolvent in the year '99, the time alleged in 
he declaration, he might not have been fo in the year 1801, 
rhen the lafl inftalment fell due ; and that the covenant 
oly goes to the eventual refponfibility of Rennington. 
liis conftrudtion appears to me not warranted, either by 
he terms of the covenant, or what may reafonably be pre- 
iimed to be the intention of the parties. The bond is made 
ayable by inftalments ; the general ohjeGt of the covenant 
ns, to make the defendants refponfible for thofe payments, 
nd a fair interpretation would be, unlefs a contrary inten- 
bn was clearly inferable from the terms of the covenant, 
hat they became fecurity to pay, according to the condition 
if die bond, in cafe of Rennington's infolvency, or inability 
to pay. This conftruftion is conformable to the general 
Btent and underftanding of parties with rcfpeft to fecuri- 
^ and there fecms notliing peculiar in the phrafeology of 
dus covenant, to warrant a different conclufion. The cove- 
not exprefsly refers to the bond, and purports to guarantee 
inf payment, I think, according to the condition ; and if fo, 
^hcre is a breach of the covenant, whenever there is a failure 
f( payment agreeable to the terms of the bond. The 
MEgnecs have purfued the obligor accorduig to the provi- 
fms contained in the covenant. If this covenant would 
vanant a different conftrudion, it would be, I think, that 
Ae whole fum was payable by the defendants, immediately 
on the infolvency of Rennington ; for the covenant con- 
dudes, that then, and in fuch cafe (alluding to the infolven- 
Zf) they were to pay « the amount ofthefaid bond^ or fuch 
^part as remained duc^^ The refult, however^ as it refpe&s 
be prefent queftion, would be the fame, on either conftruc- 
aon. The infolvency or inability of Rennington to pay, ap« 
3 M 


NEW- YORK, pears to me to be f ully» and fufficieiitly averred. Tie ^ 
\^^»^y^-^^ verment is in tlie very terms of the covenant^ to wit. Tint 
^Sn^nd'orf"** on the faid firft day of May 1799, and long hefontbe/aid 
▼ Jonathan was infolventj and not able to pay and fsAsff thi 

bits. /aid bond. It is faid, however, this is a dependent averment 
—"■""""""^ and is alleged as a conclufion drawn from a detail of fsi£b| 
and which do not warrant the inference. The fa£h ftataly 
appear to me, fully to warrant the conclufion drawn. Tkcy 
are, that Rcnnington had fome time previoufly abfcQQdedl» 
and departed from tliis ftatc to parts unknown, and ililldodi 
continue abfent from the (late at fome place unkoovai 
that he had been duly proceeded againft as an abfcondng 
debtor ; and that the refult was, that his eftate was not fn^* 
ficient to pay his creditors ten (hillings in the pound. It 
was admitted, on the argimient, by the defendants' connflk 
that if the averment had been general, that Rennii^tonwM 
infolvcnt, and unable to pay, without detailing the fads firaa 
which the conclufion was drawn, the declaratkui would 
have been good. Admit the declaration to have beeo tbuf 
drawn, and ifliie had been taken upon the folvency of 
Rcnnington, and the h&s detailed in the decbratioiibul 
been proved on the trial, would they not have warranted the 
jury in pronouncing him infolvent, or unable to pay tta 
bond ? I think, clearly, they would. Thefe fafts bdi^ ad- 
mitted by the demurrer, I think the court is bound to nab 
the fame conclufion. It is alfo faid, the plaintifis oufbtl^ 
have fhewn, how much they had received on a diftribftiDi 
of Rennington's eftate among his creditors. This apfMl^ 
to mc to be rather matter of defence, and incumbent onto 
defendants to prove. If tlie plaintiffs had recOTed «f . 
thing, it would have been proper evidence, under their ^{ 
of payment by Rcnnington. Befides, the declaratioil d>* 
contain an averment that they have not received jujlBtft:: 
for the iuftalments, for which the adion is brought. **; 

The third exception is, that the plaintifis have not fliiA^^ 
due diligence in prolecuting Rcnnington; that theyoi|^ 
to have proceeded to outlawry. I think it xnaiufrft» dwK: 
fuch extraonlinary proceedings were not in contemphlioirf: 
the parties \ and^ therefore, that the covenant ovgbt nol 1^' 


c«ve fuch a conftru£tion as to make them requifite, un- NEW-YORK, 
b clearly warranted by the terms. The plaintiffs were to ^ _^- ^ -^ ' 
fe aH due diligence, and take all legal meafures, by profe- ^^iJfJnJor"* 
ition at law, to recover the money from Rennington. By ^' 

4uch I would underftand, all ordinary legal meafures profe- bits. 
Bted with good faitli. In the prefent cafe, the plaintiffs — — — - 
liege, that foon after Rennington abfconded, proceed- 
agswere commenced againil him as an abfconding debtor, 
nd profecuted with due diligence, in order to fecure his 
^Topeity \ and, for the purpofe of arrefting his perfon, or- 
inary procefs iifued on the very day the payment fell due ; 
U which, I think, (hew due diligence, fufficient to fatisfy 
be terms of the covenant, and the intention of the parties. 

The laft exception is, that no notice is taken of the pay- 
ment that fell due on the firft of May '98. It is, I think, a 
ifficient anfwer, to fay, that no demand is made of the de« 
sndants for that inilalment ; and the prefumption is, that it 
as been paid, fmce the plaintiffs were bound to proceed 
gainft Rennington as foon as the payment fell due, which 
tiey appear to have done with refpeft to the fecond inftal- 
oent, the very day it became payable. Any delay or la- 
lies of the plaintiffs in this refpeft, however, it appears to 
ae, can only be alleged, when a demand is made upon 
hem for that inftalment. It is faid, that if a fuit had been 
iommenced on the bond for the fir ft payment, the judg- 
Qeiit would have been for the penalty, and would have been 
I iecurity on his property for the future payments. Tliis 
li}e£lion fails, without affuming feveral fa£ls of which no- 
iung appears. No evidence, that there was any default with 
rfpeA to this payment ; or, but that a fuit was commenc- 
id| and fatisfadion made before judgment ; or that he had 
iiy real eftate wnich the judgment would have bound. 
i diere were any circumflances of this kind, whereby any 
dls might probably be fuflained for want of due diligence 
tt procuring payment of the firfl inflalment, it might have 
een proper evidence for the defendants to have availed 
bemfelves of on the ifTue with refpedl to due diligence, but 
an neTer be ground for tlie demurrer to the declaration. 

am, therefore, of opinion, that neither of the cxcep* . 


NEW- YORK, tions are well taken* and that the plaintiffs ought to ham 

Nov. 1803. ' r o 

\^^^>,ym^^ judgment. 

'^nmZZrT'^ RadcliffJ. The firft and principal objeaion is fimnd- 

^ A ^,^ ed on a ftri£k and literal conftruftion of the terms of tl)e 

G.andB. Tib- rr^, , , . ,. • , r t r 

bitt. covenant. The bond is conditioned for the pajment of 

"■"■""""■"•"^ four annual inftalments, of 1000 dollars each. Thed^ 
fendants afligned this bond to the plaintiffs, and covenanl- 
ed, that in cafe the obligor fhould become infolvent, orooC 
be able to pay the /aid bondy and if the plaintiffs fhouUnfe 
due diligence, &c. to recover the Jamey " immediately afaf 
the faid feveral fums of money exprejfed in the cmiiim^ 
should refpeBively become duey and fhould not be able tooflow 
pel the payment thereof y then the defendants would pif 
to the plaintiffs, the amount of the faid bond 'with utterly te 
fuch part thereof as should then remain dwJ* It was cooteod- 
ed by the defendants' counfel, that by the terms of tUs co- 
venant, the defendants cannot be held to pay, until all As 
inftalments (hall become due ; becaufe the covenant is en* 
tire, and contemplates a (ingle payment of the amonai ef thi 
faid bondy or fuch part thereof as shall remain due. Confin- 
ed to, thefe terms, it would be fufceptible of tlua bterprcta- 
tion. But, I think, it would equally admit of the oppoGte 
conftruftion : that on the failure of the obligor to pay dii 
iirft inftalment, the defendants fhould be liable to pay the 
whole. The event in which the defendants were to becosM 
anfwerable, was the insolvency of the obligor, or as it is ei- 
preffed in the covenant, if he fhould not be able to pay die 
said bondy &c. and if the plaintiffs could not recover dr 
same (the bond) then the defendants would pay the amool 
of the said bond. If the obligor was not able to pay the W; 
and the plaintiffs not able to recover the bondy immcdiatdji^' 
ter the respeHive inftalments became due, then the cafosMii 
curred, and the defendants were to pay the bendy not any pi^ 
ticular inftalment. Now, if the term bon