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NEW-YORK TERM REPORTS

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THAT STATE.

BY GEORGE CAINES,

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

VOL. I.

NEW-YORK:

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

1804.

? p

5ftBW**J

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."

EDWARD DUNSCOMD,

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

PREFACE.

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

Iv PREFACE.

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
term.

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 neceffary.to condenfe; to
fhorten but not to deviate from the path, coun-
fel have been ple2fed to eledt So little has this

PREFACE. V

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.

GEORGE CAINES.

New-York, February, 1804.

k f 9 i»mm

TABLE OF CASES REPORTED

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
lers

V. Monteiro
•bury V. Teller
B.
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

152

107

498
248
495

258
185
217

549

1
444
517

489

290
73

113

Mar-

idtcB exDem' Fitch v.

Mil - - - -

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

394

343

525

104
114

Page

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^

TABLE OF CASES REPORTED.

Page
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

H.
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

I.
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

L*
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

TABLE OF CASES REPORTED;^

Page
M

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
tl.
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

T.
Ten Eyck and Elmendorf v.

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

Page
8

Trufdale v,

511
168

568

95t

111

80*

848

'588
518

22
167
500

11
175
512
252
112

297
7
9

22
115
518
2S4

43
118
498

182

427

190

Union Turn. Com. v. Jenkins 38 1

TABLE OF CASES REPORTED.

Page

Vander Mark v, Jackfon

251

Vandyck v.

Vanbeuren

and

Volbarg

- - -

Vandyck v.

Vanbeuren

and

Vofburg

- - - -

Van Nefs v.

Gardiner

Van Schaick

V. King
W.

426

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 -

Z.
Zobie(ki v. Bauder

CASES

ARGUED AND DETERMINED

Iir THE

SUPREME COURT OF JUDICATURE

or THE

. STATE OF NEW-YORK,

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

2 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW- YORK.

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

4 s CASES IN THE SUPREME COURT

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-
pany.

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

OF THE STATE OF NEW-TORK. 5

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
named.

'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.

6 CASES IN THE SUPREME COURT

NEW-YORK,

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-

OF THE STATE OF NEW-YORK.

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
Company.

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
asiftherulchad
bten righu

U.InfuranceCo.

8 CASES IN THE SXIPREME COURT

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-
miifion,

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

James Everitt, Surrogate of Orange County,

ads.

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
caufe.

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.

Of lIlE STATE OF NEW-tOMC 9

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

CASES IN THE SUPREME COURT

NEW- YORK,
May 1S03.

Seaman & a).

Drake.

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
day.

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

OF THE STATE OF NEW- YORK.

Drake.

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-
bw.

IS CASES IN THE SUPREME COURT

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^

OF THE STATE OP NEW-TOlUL

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-

cannotbereceiv'

€d.

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-

burg.

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

14 CASES IN THE SUPREME COURT

NEW-YORK,

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;
meafured.

OF THE STATE OF tlEW-TOlUL i

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
^larf.

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

16 CASES IN THE SUPREME qOURT

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*

ant.

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

OF THE STATE OP NEW-TORK. 17

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.

i« CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK.

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;

20 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-TORK. at

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.

22 CASES IN THE SUPREME CX)URT

NEW-YORK,

^^l^ Sheffield againft Watfon.

Sheffield

▼. 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
himfelf.

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
ftipulate.

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

OF THE STAIS OF NEW- YORK. 23

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
delay.

24 CASES IN THE SUPREME COURT

NEW-YORK,

M»y 1803. Anonymous.

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

OF THE STATE OF NEW-YORK. 25

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,

76 CASES IN THE SUPREME COURT

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
agreement.

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

OF THE STATE OP NEW-YOkK. a

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

2« CASES IN THE SUPREME COURT

>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

Hoiack.

OF THE STATE OF NEW-YORK, 29

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

jd CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK.

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 ?

NEW-YORK

May 1803.

Hoia'ck.

j2 CASES IN THE SUPREME COURT

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
verdift.

Hoikdc

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-

OF THE STATE OF NEW-YORK.

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

34 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. 3^

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 ?
iWJIieabowfprit?

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

3«

CASES IN THE SUPREME COURT

NEW.YOB.K,

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

OF THE STATE OF NEW-TORK.

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
« hony.in 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^^

38 CASES IN THE SUPREME COURT

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 :

OF THE STATE OF NEW-TORK:. ^^

" 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

GASES IN THE SUPREME COURT

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

t)F THE STATE OF NEW- YORK. 41

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

ofiered*

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

4% CASES IN THE SUPREME COURT

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
judgment.

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-
tute.

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

OF THE STATE OF NEW-YORK. 43

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

againft

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

44 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-TORI. 4,

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-
tice.

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^

4fi CASES IN THE SUPREME COURT

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

law.

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-
cord.

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

Cr THE STATE OF NEW-ITOftlL 47

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
«fcaL

*' ELIJAH BENTLEY. (L. S.)"

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

4«

CASES IN THE SUPREME COURT

▼.
Bentley.

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
cafe.

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,
Mjitioant.

OF' THE STATE OF NEW-TORR ^

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
thedleftndaDt.

William Muir and William Boyd

againft

The United Iniiirance Company of the City of"

New-York,

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-

S^ CASES IN THE SX7PREME COURT

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

at THE STATE OF NEW-TORK.

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.

52 CASES IN THE SUPREME COURT

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

/772:3'<^

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
account.

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
recited.

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.

OF THE STATE OF NEW-YORK. j^

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
defendants.

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-

54 CASES IN THE SX7PREME COURT

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.

OF THE STATE OF NEW-TORS:. | j

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.

jd CASES IN THE SUPREME COURT

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 :.

OP THE STATE OF NEW-YORK.

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.
I

S8 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK.

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
charity.

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

CASES IN THE SUPREME COURT

£x parte
Manning.

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

againft

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*

OF THE STATE OF NEW-TORK. 6t

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'^'

GOQIt

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

6z CASES IN THE SUPREME COURT

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

or THE STATE OF NEW-YORK. 6

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.

64 CASES IN THE SWSLEME COtTllT

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

OF THE STATE OF NEW- YORK*

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
neutrality.

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.

6^ CASES IN THE SUPREME COURT

KEW.YOltK,

^^[^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

OF THE STATE OF NEW-TORK. 6j

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'*

68 CASES IN THE SUPREME COURT

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-

OF THE STATE OF NEW-YORK. 69

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

70 CASES IN THE SUPREME COURT

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
commenced.

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

OP THE STATE OF NEW-TORK. 71

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

^7, CASES IN THE SUPREME COURT

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

DP THE STATE OF NEW-TORK. 73

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.

Anonymous.

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-
davits.

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

74 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. yj

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
nfiirance*

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

16 CASES IN THE SUPREME COURT

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
rendered.

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

OP THE STATE OF NEVT-TORK. 77

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

78 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-TORK. 79

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
bee.

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*'

8o CASES IN THE SUPREME COURT

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.

OF THE STATE OF NEW-YORK.

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
cftimatcdL

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

2101:13

To this muft be added the following items

of die account A :

The hire of fundry hands for rigging

and ballafting, &c.

7020

Old cordage ....

36a

Do. 6jo. an anchor 540.

1170

* Plank 81. carpenters 540.

1421

BeeE and pork 864. cable 2070

2934

Cordage bought at vendue

1440

Caalking the long-boat

180

Bin for plank - - - -

BlackTmith's bfll 474. Caulker's 756.

1230

Two biUs for crockery for cabin 540

and 198. - . - -

738

Paid for a boat ....

576

t A top-gallant-fail and fome others

2142

Two ipars 387. cooper 270.

657

Ship chandler ....

2994

Ctfpenter's bill, water, &c.

594

Wages to captain, &c. advanced - -

3672

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

27,202
1361

28,563

3173:00

8a CASES IN THE SUPREME COURT

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.

6852:25
A miftake in adding the items maxiced f 44^0^

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

6758:31
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
6758:32.

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

OF THE STATE OF NEW-TORT.

}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

CASES IN THE SUPREME COURT

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-
quent.

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-
cd.

L. and H. Vandyck againfl Van Beuren &
Voiburg,

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.

«6 CASES IN THE SHPRJ^AE COURT

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

OF THE STATE OF NEW-TORIL sy

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

88 CASES IN THE SUPREME COURT*

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
plaintiffs.

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
land.

OP THE STATE OF NEW-YORK. »

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-

90 CASES IN THE SUPREME COURT

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-

OF THE STATE OF NEW-TORK.

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-

92 CASES IN THE SUPREME COURT

NEW-YORK,

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^

ment.

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 THE STATE OF NEW-TORK. 93

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-
peaL

94 CASES IN THE SUPREME COURT

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
coUeftor.

* 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

OF THE STATE OF NEW-TORjg^ $ ^

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,

96 CASES IN THK SUPREME COURT

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

OF THE STATE OF NEW-YORK. 97

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
plaintiff

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*

9« CASES IN THE SUPREME COURT

^•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 &>

OF THE STATE OF NEW-YORK. . j

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

loo

GASES IN THE SUPREME COURT

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.

OF THE STATE OF NEW-YORK. ,oi

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'

102 CASES IN THE SUPREME COURT

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

OF THE STATE Of NEW-TORK. 103

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
jflrifdifliOD*

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

I04 CASES IN THE SUPREME COURT

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 THE STATE OF NEW-TORK. ,c

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.

166 CASES IN THE SUPREME COURT

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

pleadings.

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: ».

UEW-YORK TERM REPORTS

CASES

ARGUED AND DETERMINED

IN THB

SUPREME COURT OF THAT STATE.

BY ONE OF THE BAR.

Vol. I.— Part IT.

to^^)**^*

NEW-YORK:
PRINTED Br WARD AND GOULD,

OPPOSITE THE CITY-HALL.

1804f.
[COPY-RIGHT SECURED.]

RULES.

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.

SUPREME COURT,!
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.

SUPREME COURT,!
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

SUPREME COURT,!
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.

RULES.

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.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW-YORK,

h August Term, in the Twentt-Seveijth Year of
our Independence.

r Jodiam Post against William Wright and Robert
j Buchan.

ALBANY
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*

112

CASES IN THE SUPREME COURT

ALBANY,

Anguit 1803.

Poft

Wright & Bu-
cban.

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
inlll>cgood.

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.

d«y,(ayingit

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.

114

CASES IN THE SUPREME COURT

ALBANY,

Auguft 1S05.

Bnndt
Buclihontf.

The rule for
contolidatiiig
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
TevcraL

Woods hoped the court would order the pbuntiff to
pulate.

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
Company.

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
application.

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
traOs.*

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

OF THE STATE OF NEW:.TORK.

115

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*

ALBAMT,
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-
ftandingtbe

■ Bethuel Way and Hannah his wife,

against
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.
against
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
hat^ebccn
heard.

tfcc

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 Grov.er, on ^ y3;i.t Qut of J^
court.
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^
^i^c^^ged.

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

ALifANT.

Auguft 1803.

lackey Bi
Btigga

M'DonaM.

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
into.

us CASES IN THE SUPREME COURT

^^*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

Onici.fa.no- 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

OF THE- SlITTE OF NEW-YOHE. iig'

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

ISO

CASES IN THE SUPREME COURT.

ALBANY,

AogiiftiSoj.

^ ^ r

Spencer

Webb.'

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
plead.

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*

OF THE STATE OF NEW-YORK.

ISi

^ 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
against
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
tooider.

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

ALBANY,

Augull 1993*

Spencer
Wd>b.

In partition. If
the defendints
do not appear
the court wiU
on motion
make an order
for partitioo aa
prayed.

Rule in par>
tition.

\?9

CASm m THE 8WWBMP CCWJRT

Aufiift 1803.

Miilfon
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^
« DERICK TEN BROECK.* •..

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

OF THE «TATE OF NEW-TORK.

123

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.

ALBANY,

Auguft 1S03.

^ y »

Woodf

VanRanken.

If a plaintaiOr
notice his caufe
for trial, and
afterwards
countermand
it. he mull pay
the defendant
the intermedi-
ate culls of fub-
poenaingtiis
witneflfcs.

t Ante. 113.

iMC4a.aDd the opinion of Rri'lcIilT, J. in which the principles
lUi pndke are coucifcly axU accurately Hated.

124 CASES IN THE SUPREME COURT

A*u^«. Walter Martin

against
Daniel Bradley, Bildad Beach and Nabby Beaiel

Mirdu
\.

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, \^

OF THE ST*ATE OF NEW-YORK. ifS

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

ALBANY,

Aaguft 1803.

M ^ '

Tkepcofle
Shaw.

(^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.

OF TtOL STATI OB tUBW-^OKK^ f^

^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.
S

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
indictment.

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

CfF THE STATE OF NEW-YORK.

12f

ni%S. Cro. Jau 214. Sir Nicholas Poynt's case. Do. 639
Uncase.

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-
entcase.

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

others.
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.

ALBANY.
Aaguft 1803*

If fevcral ac-
tions, curcing
on the fame
point, he no-
ti.cd 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

ffnlu

UO CASIS m THE fiUmSME COURT

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

<SF THE STATE OF NEW-TORE.

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^-
9-

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

ALBAMTi

An iDdiAment
agiinft an at-
torney, for ex-
torting more
than hU legal
ttci^ mnft Itate
the fum due, Sc
the fpeciflc ex-
ceff.

IM GASES IN THE SUPREME COUR^

/^^^* 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

or HIE STATE OF NEW-TORK. I9S

^ 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

1st CAMB DT TRE SUniHE CSOITST

•"^^^ ^' 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

OF THE STATE OF NEW-YORK. 135

;;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
ioint4

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.
T

136 CASES IN THE SUPREME COURT

^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

OP THE STATE OF NEW-YORK. 137

^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.*'

198 CASES IN THE SUPREME COURT.

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

OF THE STATE OF NEW-YORK. ISt

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«

140' CAStS IN THE SUPREBSE GOURT

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

Ru'ft.

OF IHE STATE OP NEW-TORK. UI

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

148 CASES IN THE SUPREME COURT

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.

OF- THE STATE OF NEW-TORE. 148

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 .

l44 CASES IN THE SUPREME COURT

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.

146 CASES IN THE SUPREME COURT

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 <>

OF THE STATE OF NEW-YORK.

147

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

ALBANY,
AusnftiSo)-

Ki puty to a
fuii referred,
cannot produce
hhwitaeCTcsby
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
report.

148 CAUSES IN THE SUPREBIE COUST

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. \

or THE STATE OF NEW-YORK.

149

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
ior.li^ ^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
cxctptKWKinaf
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-
ings-

Notice to refer
mull com am
the namci of
referee*. Mif-
^pprcbcniioa

150

CASES IN THE SUPREME COURT

ALBAVT,

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
counfel.*'

• 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
theobjedion.

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
names.

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^

OF IHE STATE OF NEW-YORK.

151

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

ALBANY.

lA order to bo
admhted it a
defendant in
eje^menti a
privitx muftBo
ihewnbcnfcen
the applicant
and tenant. It
b not enougli
for the panf
applying to
fwearhechimfl
title and hu m
real and fal>*
ftantialde*

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
[Mdidie'ti^libl^.

1^2

CASES IN THE SUPREME COURT

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
notice.

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
own.

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

OF THE STATE OF NEW-YORK.

153

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

ALBANY,
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

154 CASES IN THE SUPREME COURT.

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

€tf THE STATE OF NEW-YORK^

15S

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

ALBAVT,

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
amdaTitofme-
riu is not fuf-
licient ground
to fet them a*
fide. In fuch a
cafe, if there
haa been a mif-
takeon which

156

CASES IN THE SUPREME COURT

Cogfwdl
ViDderfoergli.

Ibe judgment
had been U-
ken, the de-
fendant will be
relieved on'y
on eofts and
terms.

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
faith.

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^

OF THE STATE OF NEW-YORE.

157

!} 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
non-paynientt
as well when
the bill U ac«
cepteJ^ when
not. A profef-
fional man, not
employed by a
party, is a good
wicncfi againlt
him.

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-
dence,

158

CASES W THE SUPREME COUHT

ALBAMT,

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*
dollars.

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. ^

OP THE STATE OF NEW-TORK.

VSB

■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

ALBAMY,
Auguft ztos*
V— ^-^
HofAnan «Ad
Seton T.
Smith.

160

CASES IN THE SUPREME COURT

ALBANY,
Auguft 1803*

Hoffmaoind

. BOCOOT.

Walwyn,

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
grounds.

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

Motion.

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

OF THE STATE OF NEW-YORK.

161

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

A LBANY,

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.

CASES IN THE SUPREME COURT

ABUkHYt

Hawkins
Bradford.

« 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 «

OF THE STATE OF NEW-YORK.

}6t

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
'alkenbergh.

^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£,

ALBANY,

Aufsft i8o>

CASES m THE SUPREME COURT

albaUt,

*t.

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

OF THE STATE OF NEW-YORK.

16S

^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

ALBANY,
Aiiguft iloj.

166

CASES IN THE SUPREMJE COUHT

ALBANY,
AttgttftiSoj.

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

)F THE STATE OF NEW-TORK.

167

: 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 ?

AUAHY.

Jackfon
Sternbci^h.

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

VBB

CASES IN THE SUPREME COURT

ALBAIIT,

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.
Brown.

against

Jame*,'

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^)

or TBI STATE OF NEW-TOfUL m

■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.

ITO CASES IN THE SUPRl^lE COURT

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 may.in p)
aetion by an indorfcc ajaiiift the acceptor, prove the bifl, " void In lu U^
tion. Qu. whether ttiUdiUiDcaioD be not perfedlly found. *

or THE STATE OF NEW-YORK.

171

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-

ALBANT,
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
1.

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

CASES W THE SU7REME GOI7RT

th;: WaDt of it
ffir nut going to

Counter adida-
mils to thofc in
e(ipi>lttii'n to a
iB*ti'>D, not
Sriniiiliblc.
If a full be call-
cd and pafl'cd,
tke r<.»Ion>i
vhy fliuuld be
naueapi'car
by the counlcl
in the caufe.
If off. ri of
coAipiomire
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
fdob.

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

Off TfiS STATO OF liTEW-YORJL I7»

«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

174 CASES IN THE SUPREME CX)URT

•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 ^-.it$
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

or 1H]E STATE OF NEW:.YORK.

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
WaicddL''

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

17«

CASES IN THE SUPREME COURT

ALBiAMT,

AnguftiSoj.

. 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'
nonsuit.

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^

>.VXf

• See Cockfhot ▼. Bcnnet, a D. ft £. 763,
PuU* ^. Jiaaitk ▼, Sromley Dong. 670.

' t)r THE STATE OP NEW-YORK.

177

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.
■fidcd*

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

*llttch.l799.ch.59.r.7.avoKReT. Laws 398. 28th March iSoo,
.L]i 1^ Ect. Laws 40^

ALBANY,
Auguft 1803:

The People

Dentlow.

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

CASES D7 THE SUPREME CX3URT

AXAAilt.

Avgaftife;).

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
yours.

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

ALBAMr,

CASES IN THE SUPREME COURT

ALBANY,

A«g«fti9oj«

• ▼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
kind.

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

OP THE STATE OF NEW-TORK.

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
ttoUlMrtki.

181

Aofuftiimk

10 Mirchy
i)(ui. fee. ssd.

m cAim m the supreme oourt

jEugvftil

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. , ^ .

OB^tia STATE OF NEW-YORS^ l^

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

ABsaft^itoi,

184

CASES IN THE SUPREME COUILT

ALBAKY,
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
taker.

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!
partner..

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.

OF THE «t ATE OF NEW-YORK.

ISS

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

White.
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.

ALBANY,

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^

isii CASES IN tH£ SXJPREME COURT

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 &
right.

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 '
wife.

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

OP ma. STATE OF NEW-vTORK. in

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

18S CASES IN THE SUPREME COURT

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*
impeached.

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
confirmed.
t ray •or, x. dem AtkyD«T. Horde.

OF TJB STATE OF NEW-YORK. ' iss)

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*

IM CASES nJ THE SITPREME COURT

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,

OF im STATE OF NEW- YORK.

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

ALBAKir.

AqfUftiai^

Thejttftke't
court lut no
Jurifdiaion la
afuitbyanad*
miniftrator.

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.

CASES IN THE SUPREME COURT

ALBAMY,

Company
LedTard&Co.

Anindofement
In the nunc of
a finn, by a
partnerjsgood,
and mav be
declared on a*
the indt>r«>c-
mei.t of the
Ann.

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
plaindfB.

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 (

Young.

OF THE STATE OF NEW-YORK.

199

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

AUIBMT.

Auguft iSps.

pou ndagc on
toefum indorrrd
thoHgh ic confe-
queni^c of an
amicable fettle-
inent,iiedonot

S Term Rep.
57©.

IM CASES IN THE SUPREME C0T7RT

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

IBE STATE OF MEW-TORK.

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

ALBANY.
Aag«JliS«s«

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

CASES IN THE SX7PREME COURT

ALBAMT,

AogvftiSoj.

Andimige
linxncdiitcly
mrifiDg from a
Jettifon ii to be
contributed
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
tlicDarc«

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 ca.se. 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

OP THE STATE OF NEW-TORK. 19T

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"

198 CASES IN THE SUPREME OOURT^

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

or IHE STATE OF NIW-TORK. I9f

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

CASES IN THE SUPREME OOUKT

ALBANT,

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.

OF THE STATE OF NEW-YORK.

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,

AI.BAN Y,

Augult iKoj.

Ma-;.nth aud

JohiiDChnreh

CASIS IN THE SUPREME COURT

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
loss.

Pendleton contra. Before it can be known whet]
case which was argued on a former occa$M)D U 1

Of THE STATE OF NZW-TORIL 2M

»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^^^

J«luiBClnx«h

» 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.

804

CASES IN THE SUPREME COUHT

albAnt.

AngaftMoj.

Mafgiith and

iBggliu

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.

OF IHE STATE OF NEW-YORK.

SOS

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

ALBANY.

Angiift iSoj.

Manrrath and
Higgint

T-

JohnBChorcli

JohnBChurcb

«M CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-TORK. 207

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
£e

Jobn B Cbarch

208 CASES IN THE SUPREME COURT

'^^^^^»''^« 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

OF THE STATE OF NEW-TORK. 209

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

210 CASES IN THE SUPREME COITRT

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^

OP THE STATE OP NEW-YORK.

211

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

ALBANY,
Aii|{uft 1803.

Miggnuh ind

Hfgginf

▼.

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™'

liia CASES IN THE SUPREME COURT

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

1PAni»1V«

>1o«r

dl4 CASES IN THE SUPREME COURT

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

JobaBUiifc^

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

SM CASES IN THE SUPREME COURT

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'^

OF THE STATE OF NEW-YORK.

817

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-
ied.

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
Higgins

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
iPuUrwriter.
Wtight of tvi-
dcnce.

tit CASZS IN THE SUPREME COURT

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

OF THE STATZ OF NEW-TORK. fit

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

9»

CASES IN THE SUPREME COURT

ALBAKT.

Aiigiiftilo3.

} 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
•rark,iii(jM.)

0t^|^ STATE OF MEW-TOmC

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

CASfiS IN THE SUPREME COJJl^T

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.

0> THE STATE OF NEW-YORK.

fiS9

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-

ALBANY,

Augult.iSo

Barnewall

Church.

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.
Gg

224

CASES IN THE SUPREME COURT

ALBANY,

AuguAiSoj.

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
Jamaica.

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.

Of THE STATE OF NEW-YORK.

225

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
ode*

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 mo.fit 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-

ALBANT,
Angaft 1803.

226

CASES IN THE SUPREME COURT

ALBANY,

AHguft 1803.

Barncwan

Church.

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'

0f THE STATE OF NEW-YORK.

987

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,

ALBANY,

AiiguftzSo3.

CASES IN THE SUPREME COlJRT

ALBANY,

Aiigiifti8p3.

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

OP THE STATE OF NEW- YORK.

tt»

^ 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

ALBAMT,
Auguft aloji

• Rich V. Pir-
ker.

98d

CASES IN THE SUPREME COURT

ALBANTp
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
question.

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

OF.TBE STATE OF NEW-YORK.

2Sl

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

ALBANY.

Auguft iSoSi

9S9

CASES IN THE SUF&El^IE COURT

ALBAVT,

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

OFTHESTATE OFNEW-TORK. M»

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^

SS4

CASES IN THE SUPREME COURT

ALBANY.

AuguitiSoj.

2d. W hether the plaintiiF ought not to have disclosed to
the defendant, that the ve^^sel would have a clearance ibr
Falmouth.

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^

OF THE STATE OF NEW-YORK. «SS

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

CASES IN THE SUPREME COURT

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

DF TEIE STATE OF NIW-TORK.

AST

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-
MH.ftr a new trial, and two other grounds were also ta»

ALBANY,
A«xiilliioj.

JuljccmsSw

^if^thit^ ship sailed from Honduras for Fahnouth,
IJiintfatfae voyage insured.

CASES IN THE SUPREME COURT

ALBAMY,

Avfnft i8o>

I shall begin mth conBidering the two pointi last n
tioned.

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 .

OF THE STATE OF NEW-YORK.

2d9

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

6d^

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.
li

ALBANY.
Auguft iloj.

94f

CASES IN THE SUPREME COURT

ALBAWT,

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
world.

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

or WE STATE OF NEW-YORK.

««i

*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
mL

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

ALBANY,
Aogull i8o>

24S

CASES IN THE SX7PREME COURT

ALBANY,

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*

OP THE STATE OF NEW-YOtfK. US

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

Aoguftitoj.

• 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
4llirtiuted?

**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.

CASES IN THE SUPREBEE COURT

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

OF THE STATE OF NEW-YORK.

f4ft

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.

ALBAmft
Auguft iloiS.

846

CASES IN THE SUPREME COURT*

ALBANY.

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'
nauon.

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

OJ^'Tiffi STATE OF NEW-TORK.

847

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
kCfov-ban

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
Kk

>\LBANY,
Augult i8#3.

Barnewall

Church .

S48

CASES IN THE SUPRE^ffi COURT

ALBANY,

Auguft x8o3.

Barnewall

Church.

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.

OF THE STATT OF NEW-YORK.

S49

Jackson, on the demise of Hogeboom, against
John Stiles, Austin Griffin, tenant in pos-
session.

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.

ALBANY,

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
Onondago,
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
ifc.

2B9

CASES IN THE SUPREME COURT

ALBANY,
Auguft 1803.

A motion can-
not be made to
Cctafidca
writ ofinqai-
ly, in tke pos-
icfiionof the
pliintiff, not
returncdt ind
on which no
loqiiifitlon has
been taken.

bntlfajury
liaibeenem-
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
aovo.

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.

Hi; STATE OF NEW-YORK* J51

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-
l.

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«
tfdcd*

i5!t CASES IN THE SUPREME COtfRr

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
appointed.

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
mf§t§.

OF THE STATE OF NEW-YORK.

25S

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-

254

CASES IN THE SUPREME COURT

t&i.

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

OF THE STATE OF MEW-YORK. i59

: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 ;
i.hu 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

256 CASES IN THE SUPREME COURT

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-

25% CASES IN THE SUPREME COURT*

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

OF THE STATE OF NEW-YORK. 25S

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,

«*Sif,
^ 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*

260 CASES IN THE SUPREME COlTRr

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^^«^

OF THE STATE OF NEW-YORK. 261

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-

26S CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW- YORK. ^ 26S

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

264 CASES IN THE SUPREME COURT

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^

OF THE STATE OF NEW-YORK. 265

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)^

266 . C.\SES IN THE SUPREME COCllT

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^

OF THE STATE OF NEW-YQRK. f»7

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

CASES IN THE SUPREME COtTHT

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

^ T1I£ STATE OF N£W-TORK. MB

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

!fe)ro

CASES IN THE SUPREME COURT

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

r THE fJTATE OF SEW-YORK. t7l

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^

m CASES IN THEt SUPREME COUKV

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

Df TBE STATE OF NEW-TOSK. Ttt

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
rtrid.

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^

S74 CASES IN THE SUPR£M£ COUIKT

.£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 mexdy.pr^

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 discovery.bf;

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[||^

Baker

Arnold.

^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.
Oo

976 CASES IN THE SUPREME COURT

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.

'OP.iTHE STATE OF NEW-YORK- ^TT

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.

sn CASES IN THE SUPREME COUXT

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^

-or THE STATE OF NEW-YORK. Jf^

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«

«80 CASES IN THE SUPREME COURT* '

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 **

Of THE STATE OF NEW-YORK. «8l

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«

283 C.VSES IN THE SUPREME COURT

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'

efr'tHE STATE OF NEW-YORK.

S83

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

iolio.ai 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

884 CASES IN THE SUPKEME COaRT

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

OF THE STATE OF NEW-YORK. ms

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^^'

286 CASES IN THE SUPREME COURT

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&'

or THE STATE OF NEW-YORK. 287

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

288 CASES IN THE SUPREME COURT

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^^

OF THE STATE OF NEW-YORK, 389

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
surance.

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

IS.

»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

2190 CASES IN THE SUPREME COU^T

/^^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.

>A}lo

OF THE STATE OF NEW-YORK. 9«

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

«9« CASES IN THE SUPREME OOU*'

^^^^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 ^

Boini6

^ representing the plaintiff to have been naturalize
not after 1794# We di»not, consequently, considc
presentation a» matenatly false, and the vetdict
stand.

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«]

«F THE' STATB OP NEW^YORK. fl9S

(> dollars. Upon advice of her ntuation, the plain* A^S^fSol
ibandoxied to the underwrilcvs, who refused to accept *
ihandonmest.

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«

294

CASKS IN THE SUPREME COUR*

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

Or-T^E STATE OF NEW-YORK. S9S

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

S96 CASES IN THE SUPREME COURT

"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

OPTHE'STATB OF JfEWiyORK. Mf

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 ? - / ** ~

ljg» CASES IN THE SUPREMJE COtTHT

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, tbephdntifi.cl
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

jDf THE STATE OF NEW-YORK. «99

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

1300

CASES IN THE SUPREME tdUttf

ALBAWr,

^ Augnit 1803.

* Tliry ilo not
•cTin very M'pa-
rabU'.aiccordiiig
to the decision
in the United
In^umiiCL-Com-
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

THE STATE OF NEW-YOllK. »W

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

309 CASES IN THE SUPREME COURT

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

(MR; THE STATE OF NEW- YORK. 80S

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
ondonmcnt.

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»-

804

CASES IN THE SUPREME pQU^

An award
in trespau that
** the said suit
■hall no further
bcprosi'cutLd,**
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

York.

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

.l'*;7^'

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^

306 CASES IN THE SUPREME COUBT

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^

t» THE STATE OF NEW-YORK. tw

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

308 CASES IN THE SUPREME COURT

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

OP THE STATE OF NEW-YORKp $Qi

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

510 CASES IN THE SUPREME COURT

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

' OK TITE STATE OF NEW-YORK. wi

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«

3»

CASES IN THE SUPREME COURT*

ALBANY,
August 1803.

Purdy

Ddavin.

•The ri'search-
« of the re-
porter have not
ted him to any
precrdcnt
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

OP THE STATE OF NEW-YORK, Sia

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
cc.

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

314 CASES IN THE SUPREME COURT*

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^

>F THE STATE OF MEW-YORK. 315

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*

316 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. ilT

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,
ejected.

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
s.one 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.

S18 CASES IN THE SUPREME COURT

^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'

OF THE STATE OE NEW-YORK. tl9

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

ifvent*

ffvjm C, J* This is, substantially, an action by the

Otiflflilgunsttbe defendants for consuming by fire, bis

S20 CASES IN THE SUPREME COURT

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^
thereof.

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.
plaintiff.

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

»i

•01* THE STATE OF NEW-YORK. 321

iind the contents thereof, and the damages the said Eben- ALBANY,
czer had sustained, to the judgment anft award of three y^^^J^^J^
airtjitralors.

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,
*'Wdhi*ontinucd.

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«

322 CASES IN THE SUPREME COURT

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^ ^'

P IHE STATE OF NEW-YORK. |S«

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.

«24 CASES IN THE SUPREME COiniT

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
specie*

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

OF THE STATE OF NEW-YORK. 325

{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

Ifiii

" 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<

*< COXTRACT FOR THE QUANTITY OF ASHES S)>BCltl]
** THAT WAS MY PARTICULAR ORDERS FROM Mr. Cl

" 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

OP THE STATE OF NEW-YORK. Z27

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

> SETTLE WITH YOU FOR ONE-THIR3> OF WHAT YOU
IE ENTITLED TO, AND Mr. C. TO SETTLE WITH YOU

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.

3S8

CASES IN THE SUPREME COURT

Account of my Cargo.

ALBANT.

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

IgOOO
2.133 * 8

New-York Currency, 26^70 t 5

ls,Steriing,

31^00 7 'o
1^00 3 10

9i039 « 4
XI 8

»3i»4o

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.**
(Signed)

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^
referred.

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

OF THE STATE OF NEW-YOBK. 329

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,

« ROBT- LYLE'»
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*
nt8«

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

330 CASES IN THE SUPREME COURT

/^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

OF THE STATE OF NEW-TORK. Wl

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

S5« CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. gsg

ent^ or kept in his hands, but had, from tick time ALBANY,

lEIR FIRST RECEPTION, BEEN PAID OVER BY HIM TO \.^^^-^^
:ORRESPONDENTS OF ClASON, LuBBERT, FrERES 6i I-ylc v.^Clason,

OF Bordeaux, by whom they were converted ciasonv. r.*

SPECIE, FOR THE USE OF ClASON, AND ACCOUNTED ^

^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.

Ot THE STATE OP NEW-YORK. 335

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

336 CASES IN THE SUPREME COURT

.^^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*

OF THE STATE OF NEW-YORK. 357

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

538 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. 339

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
Zz

•40 GASES IN THE SUPREME COURT

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

OP THE STATE OF NEW-YORK. 341

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

W« CASES IN THE SUPREME COURT

^^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

OP THE STATE OF NEW-YORK. S49

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

Hood.

, 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.

344 CASES IN THE SUPftEME COURT

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 .
versed.

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

judgment.

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

OF THE STATE OF NEW-YORK. s^s

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-

i*&

CASES IN THE SUPREME COURT

Nkholand
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. |

r.ND OF AUGUST TERM.

■h

..f

CASES

JlRCUED AND DEtERMINED

IN THE

SUPREME COURT OF JUDICATURE

bF THE

STATE OF NEW-YORK,

H KOVEMBER TERM, IN THE TWENtY-ElGHTH YEAR Ot
OUR INDEPENDENCE.

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

S48 CASES IN THE SUPREME COURT

^ 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

OF THE STATE OF NEW-YORK. $49

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-

SJO CASES IN THE SUPREME COURT

^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' '

OF THE STATE OP NEW-YORK. 3^1

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
idant.

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

352 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. 35.^

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-

354 CASES IN THE SUPREME COUI

^^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

OF THE STATE OF NEW-YORK. 355

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

359 CASES IN THE SUPREME COURT

^^"^,^* 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

OP THE STATE OF NEW-YORK. 3i7

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

658

CAS£S IN THE SUPREME COlTIlT

^^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

OF THE STATE OF NEW-YORK. 359

^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

360 CASKS IN THE SUPREME COURT

^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
inclosed.

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

OF THE STATE OF NEW-YORK, t S6J

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;

S6t CASES IN THE SUPREME COURt

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

OF THE STATE OF NEW-YORK. 363

«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

864

CASES IN THE SUPREME COURr

^'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

mconp

^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 »

OP THE STATE OF NEW^OHK. M5

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
ction.

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.

S66

CASES IN THE SUPREME COURT

NBW.TORK,
Nor. 1803.

Ddofidd.

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

OF THE STATE OF NEW-YOHK.

367

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

S6S CASES IN THE SUPREME COURT

^£^~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
incapacitate.

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

370 CASES IN THE StfPREME COURT

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 ]

DF THE STATE OF NEW-YORK;

»n

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
imediate.

3d. That White's interest was not immediate, but con*
Btoential.

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^

or THE STATE OF NEW-YORK.

8tS

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«
idcnce.

^ Those who, since that period, have become so, by
nrdizatioii.

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

NEW-YORK,

Nov. 1803.

Peyton

HaUet.
llietame

DeUfield.

* 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.

Sr4 CASES IN THE SUPREME COURT

^^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

DeluScld.

OP THE STATE OF NEW-YORK. 37S

' 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-
ate.to 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,

376

CASES IN THE SUPREME COURT

Hallett,
llie same

BdtficI4.

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

Of THE STATE OF NEW.YORK. S7Y

? 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

31% CASES IN THE SUPREME COURT

^*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-^.

OF THE STATE OP NEW-YORK.

379

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

380

€ASES IN THE SUPREME COURT

^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 ^

OF THE STATE OF NEW-YORK. 381

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

382 CASES IN THE SUPREME COURT

^ 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

OF THE STATE OF NEW-YORK. 383

!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

**♦ CASES IN THE SUl'REME COURT

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

OF THE STATE OF NEW-A''OBK. 385

»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;'^

596 CASES IX THE SUPREME COURT

^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. &
350.

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 arre.it 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^ | ^

OF THE STTATE OF NEW-YORK. 38T

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

Xyg^TllE STATE OF NEW.YORK. M9

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

390 CASES IN THE SUPREME COURT

•'^-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&

tion.

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
sidcTiition.

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.

OP THE STATE OP NEW-YORK. 391

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«

394 CASES IN THE SUPREME COUHt

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

^1
m

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.

O? THE STATE OF NEW-YORK. 395

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

OT6 CASES IN THE SUPREME COUR']

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

OF THE STATE OF NEW-YOHK. 397

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.

598 CASES IN THE SUPREME COURT

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^

OP THE STATE OF NEW-YORK. 395

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

400

CASES IN THE SUPREME COURT

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

OP THE STATE OF NEW- YORK. 401

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

402 CASES IN THE SUPREME COURT

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^^

OF THE STATE OF NEW-YORK. 40»

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

404 CASES IN THE SUPREME COURT

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*

OF THE STATE OF NEW-YOWt. 405

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-
cd.

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

406 CASES IN THE SUPREME COURT

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

OP THE STATE OF NEW-YORK. 4or

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

40» CASES IN THE SUPREME COURT

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

OF THE STATE OF- NEW-YQRK. 40*

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

410 CASES IN THE SUPREME COURT

|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, but.final. 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

OF THE STATE OF NEW- YORK. 411

: 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 ifit.be 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

412 CASES IN THE SUPREME COURT

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'
action.

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

^^^^^^^^B^^^^^

OF THE STATE OF NEW-YORK. 413

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

414 CASES IN THE SUPREME COURT

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 .|

OF THE STATE OF NEW-YORKl 415

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

416 CASES IN THE SUPREME COURlT

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

lands

OF THE STATE OF NEW-YORK. 417

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 gf.mt, 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.

418 CASES IN THE SUPREME COURT

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

OF THE STATE OF NEW-YORK. 419

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. ** *"^"

420 CASES IN THE SUPREME COURT

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

• OF THE STATE OF NEW-YORK. 421

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^.

429 CASES IN THE SUPREME COUR:

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^

OF THE STATE OF NEW-YORK. 42S

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&

424 CASES IN THE SUPREME COUI

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

OF THE STATE OF NEW-YORK. 42.i

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
V^vonunent.

The defendant claims title under the said patent, and
thftciacstion for the court is, GuiUy or not Guilty.

42g CASES IN THE SUPREBIE COimT

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

U799.

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

48i CASES IN THE SUPREME COURT

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

OP THE STATE OF NEW-TORK. 4d»

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

484 CASES IN THE SUPREME COURT

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.

OF THE STATE OF NEW-TORK. WS

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

4S6 CASES IN THE SUPREME COURT

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^'

OP THE STATE OF NEW-YORK. 437

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* .

438 CASES IN THE SUPREME COURT

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 bondy is to be coaftnisl»
in the fame fenfe throughout this covenant, as the pendlf
would become legally forfeited on the failure of tiw (A
payment, the defendants, according to the letter of their ci^
gagement, might be confidered liable to pay the wW*
bond. There is an additional rcafon too, in favour of db

OF THE STATE OF NEW-TORK. 499

mftmdion : for, the moment the infolvency of the obli- ^fj^v^SJ^
or happened, there could remain little hope or expectation V^»-v'^i^
f recovering the fubfequent inftalments from him j and it Sincn^irf *
ought rationally be intended, that the defendants fliould ^ .^- .^j.
A once take back their fecurity againft him, and pay the biu.
ilaintiffs the confideration of the afEgnment which they
lad already received. But I think either of thefe conftruc-i
tioDS too rigorous, and oppofed to the intent of the cove-
nant. The bond was due to the defendants by inftalments.
Fhe funs in the condition were, in reality the debt. By
Jbe afEgnment, they meant to fubftitute the plaintiffs in their
lead, and they guaranteed the folvcncy of the obligor, and
lie payment by him, according to the terms of the condi-
ion. This was the fubftance of the contrad, and the
mndadon of the covenant ; which, I tlircfore think, ought
o be taken diftributively, and deemed a continuing cove^
lant, on which the defendants would be liable on the failure
»f the payment of each inftalmcnt.

With refped to tlie other objeftions which have been
lated, I acquiefce in the opinion already delivered, and ge*
ncrally for the reafons which have been afligned.

I am, therefore, of opinion, that tlie plaintiffs are entitled
ED judgment on the demurrers.

Kent J. This cafe comes before the court on demurrer
bo the firft and third replications. Upon the argument of
thefe demurrers, the counfel for the defendants, relied upon
rtiat they contended to be fubftantial defefts in tlie decla-
ration. It was there that the firft fault was to be found,
md to which they chofe to refort.

The adion was commenced in July term 1800, and the
laft inllalment on the bond, was payable on tlie firft of
May 1801 ; and it was contended, that the defendants
^ere not liable upon their covenant until all the monies on
ikd bond became due. An important queftion accordingly
irifes on the conftru£lion of the covenant. It was to pay
'ie amount of the bond with interest ^ or such part as should jv-.
Item dW, and unpaid. But there were two condltio.is pre-*
Cedent to recovery upon this covenant :

440

CASES IN THE SUPREME COURT

KEW-YORK, ift. That the obligor fliould become infolvent, or not v j

\,^y^mL^ ble to pay and fatiafy the bond.

T«£y^^«nd 2d. That the plaintiffs (hould have ufed all due difigoice^l

▼• and have taken all legal meafures, by profecution at law, to f

bitt.* * recover the same^ and that too, immediately after the feient j

r fums of money fliould refpeftively have become due^ ani |

fliould not have been able, by fuch means, to have compel- !
led the payment thereof. The bond was payable by infial* j
ments ; and, there can be no doubt, but that the obUgocvtt
liable to fuit on default of payment of any of theinftd-
ments. 1 Wils. 80. Sayer 29. Buller 168. 2 BlacL B4
706. As to the cafes in Co. Litt. 292. b. and 1 H. lUad^ '
547. they relate only to debt on fimple contra£i, or fing^ ;
bill. But the covenant, was not, by the terms of it, to i
demnify by inftalments : It was, to pay the amomii ifAe
hond : and that too, only upon the condition that the obligor
was not able to pay the bond, and that the plaintx&haduM
all legal means to recover the fame, immediately after tht
fums had refpe£tively become due, and had not been aMe to
compel payment. The language of the covenant through-
out, has reference to the bond, as one entire d^ and the
payment to be made by the defendants in purfuance of tht
covenant, was of one aggregate or entire fum ; or, fo modi
thereof, as fliould remain unpaid. I am of opinion, then-ic I
fore, that the defendants were not liable, on their covenu)^-
until all the payments on the bond had become due. lb'
burthen of fuing and colle Amg the inftalments was, bf Ae,
aflignment, caft upon the plaintiffs ; and if they coiddlOf^J
fort to the defendants on the firft, or any default
the ultimate one, they muft be entitled to recover ^ i
ofnount of the bofid from the defendants before all tbei
ments were due, and before the legal means had 1
to afcertain whether the obligor was, or was not, ccHUf
to pay. '^This would be contravening the exprefs '
the covenant, which were, that the defendants ^
pay until all fuch means had been ufed, as the i
refpe£tively became due. It would be cafting l»d( 1
the defendants the burthen of ufmg thefc meansy irittdkl
plaintiffs had^ by the contraft, affumed. Thefe (

piivIM

OF THE STATE OF NEW-YORK. 441

appear to me to refult from the doftrine maintained by NEW-YO^K,

plaintiffs^ and they are too inconfiftent, with the cove- v^^p->^^-^^

It, to be admitted. If, however, the plaintiffs were not ^^jj^^ndorf **

itled to recover the whole amount of the bond, but only ,\:

' G. and a Tib-
amount of the inftalment in arrear, then it would follow, bits.

X the defendants would be fubjeft to different fuits, upon -
i covenant, as the defaults on the part of the obligor
raid refpeftively arife. But this confequence would be
linft the rule of law : that, for one entire contraft, there
dl be but one aftion, and would fubjeft the defendants
the manifeft inconvenience of not having it in their pow-
by the return, and re-owner(hip of the bond, to try the
periment of legal means, on their part, againft the obligor.
r, I take it for granted, that while the plaintiffs were law-
owners of the bond (and they would continue owners,
til default in the lad indalment) the defendants could
t inftitute a fuit upon it ; for this might lead to the abfurd-
of concurrent fuits, at the fame time, on one inftrument,
' the fame penalty, and for the ufe of different peribns.
In every view which I can take of this covenant, it ad-
ts of but one conftruftion. It was one fimple and
dre engagement. The infolvency of the obligor, and the
brts of the plaintiffs, were to be firft (hewn with refpeft
aO the inftalments. It might be, that the obligor would
ram, and be able to pay the bond when the laft inftalment
1 dae. The prefent fuit being brought before this period,
18 prematurely brought, and before the caufe of a£lion
lie. I am, therefore, of opinion that, on this ground,
Igment ought to be given for the defendants.
There was another ground taken by the defendants, that
gfat merit fome confideration. I mean, the want of an
nrment in the declaration, that the firft inftalment was
idy or that due means had been ufed to recover it. But
il not neceffary for me, at prefent, to examine any other
int thanthe one I have confidered.
Lewis C. J. The queftion now before the court is. Has
•re been, on the part of the plaintiffs, a failure in the per-
rmance of the condition, on which the defendants, cove-

443 . CASES IN THE SUPREME COURT

NEW-TQRK nanted to pay, in the event of the inability or uifohrencyfif

V.^«C^^-^y the obligor ?

Ten Efck md It is contended on the part of the defendantfl, (bat tb»
r, plaintifis Tvcre not entitled to recover until the hft infial'
'""^i^* ment fhould have fallen duej and then only, on fliewiq

■ — that they had duly profecuted for each as they refpeAife^

became due. That the abfconding of Rennington, and At
proceedings againft him under the abfconding debtoci' 2B9
werenot conclufive evidence of his infolvency. That thongl^
perhaps, infolvent on the firft of May 1799, when die fe-
cond inftalment was payable, he might have been fobot
at the time of the third or laft inftalment becomiif ^
That the terms, " all due diligence j^ could only be latisfiedky
a profecution to outlawry \ and that the plaintiffs ovgbtti
have applied for, and received, their dividend under die at
iignment.

There are two events, in either of which, tfaedeficDdaoti
engage to be refponfible. The one is, the infihmcj rfRti^
mfigton. The other, its not being able to paj stid satitfj th
bond. Thefe might be confidered one and the faine dung,
were it not tliat the parties intended to diitinguifhbetweei
them. They are in the disjunftive : the one coupled will
a condition, the other unconditional. The diilinftioiii*
the underftaiiding of the parties, could be no other, donlM
between an incapacity in Rennington to difchargeUtddii
generally, and a mere inability to difcharge the biOBd^ ^
cording to its condition. In the firft inftance, the condi-
tion compelling the plaintiffs to profecute, would havetal
ufelefs ; in the fecond, it might eventually fecuie the d^
The firft queftion then, is, was Rennington ifllobv^
within the meaning of the contrafl ? It is ftated^ and
denied, that he had abfconded before the inftalmcnt
ble in *99 ; had abfented himfelf from the ftate^ and.
tinued without it, at the time of bringing the foitk
alfo, previous to tliat period, his property had been
under the abfconding debtors' a£b ; and that it nealedi^
vidend of but 1C)/I in the pound. On fuch affigmnail^
debtor's property is diverted, his mercantile opentkoti
fufpendcd. No payments can be made to him, norOA

OP THE STATE OF NEW-YORK. 448

Lipofe of hb property. This, in my conception, is a com- NEW-YORK,
lete ftate of infolvency. Proceedings under the infolvent ^^^.^'^^
Gt are not neceffary to conftitute it* That aft is intended '^^^l^^^^
A a benefit to the unfortunate, who muft be aEfually infold ^
xni before they can have relief under it. biu*

But, admitting that in contemplation of the parties, no ", " ""

£ftin£Hon was intended between the cafes of the infoU
Tcncy of Rennington, and his inability to pay, according
to the condition of the bond. But that, in every event, he
"was bound to profecute on default of the obligor. — ^Haa
lie not complied with fuch condition ? On the very day on
irhich the firft default took place he iflued a capias, and on
& return, an alias. Rennington could not be taken, being
Aut of the jurifdiciion. To profecute to outlawry, a man
vhofe property had been already afligned for the benefit of
lu8 cre<Utors, would have been an ufelefs expenfe, and could
2U)t have added to the fecurity of the debt. The law, there-
fore, would not impofe it upon them. And as the fuit was
in the name of the defendants, and in efie£t, for their bene-
•fit, they might have continued the profecution had they
chofen fo to do.

As to the plaintiffs inftituting a new fuit on the fecond
default, viz. on the nonpayment of the inftalment due in
1800, diis alfo would have been ufelefs. For, could a re-
covery have been had in the firft fuit, it would have an-
fwered every beneficial purpofe. The judgment would have
been 'for the penalty, and would have remained a fecurity
br the future inftalments.

With refpeft to the plaintiffs' not applying for a dividend^
there appear two anfwers to the objection : Firft, It does
bot appear, on the pleadings, that the dividend has not been
received. Second, The defendants were the proper per-
^loDM to apply for it. They were the obligees originally,
irnly when the affignment under the a^ took place; the pof-
Ibiltty of recovery was defeated \ tliey, by the terms of the
x>ntrad, then became the fubltitutcs of Rennington to the
plaintiffs, and were to look to him, or his property, for an
ndemnity. On every ground, I am of opinion, judgment
nuft be for the plaintiffs.

;M% cases in the SUPREME COURT

jiBw-YORK, Tames Jackson, ex dem. Nicholas Low and otherSi

I4ov. 1803. */ ^^ ' .

v^^-^_> agaifist

' J«cWon James Reynolds.

Reynolds r^j^jg ^^^ ^^^ ^£^j^j^ ^f ejcQment to recover partrf krt

If a defendant No. 37, in Romulus, in the county of Cayuga. Onthetri-

T(!^J?th7titlc alj thei)laintiffs deduced a regular title from the original p»-

of the Plaintiff, tentee. He alfo cave in evidence, acknowledgments of the

he cannot af- . o ' , • 1 • 1

terwardi dif- defendant's, confefiing that he had entered without titl^
and that he had agreed to purchafe of the leflbr of the phift-
tiff, the premifes in queflion, fo foon as the Onondaga cooh
miflioners (hould award the lot in which they were cno-
tained, to Low. He further proved, by the teftimoDjoF i
one of the commifTioners, that lot No. 37 had been ajraded
to Low, and the award direfted to be made out by iMr
clerk, who, however, died in February 1801 •, before it was
compleatcd, in confequence of which, as their comnuffioQ
expired in March of the fame year, nothing further was
«ver done.

The defendant relied on his having entered by wtue of a
conveyance -from another, though for another lot, and ofier-
ed parol teftimony of a diffent having been entered to the
award of the commifTioners ; infiding, that as parol teftiox^
jiy had been received of the award, fo it was admifliUe tD
fliew the diffent. This being overruled, the jury, in piri^
ance of the judge's charge, found for tlic plaintiiR

Application was now made to fct afide the verdifly 01
account of mifdireftion.

Per curiam. Reynolds has, by his admiffions, recogaini
Low as his landlord -, he cannot, therefore, be admjtteltt
difpute his title. Whether, therefore, the evidence m
properly or improperly received, cannot 1)e enquired inlOinflr
can the defendant take any thing by his motion.

Mark Bordes, Ju«. against Richard S. Hall^.,

ar!|I,utarn*o"ra '^^^® ^^^ ^^ ^^^"^ ^" ^ P^^^^y ^^ infuraiice, daftrf At I
rciii;u:ion of 21ft May 1800, to recover the amount of a tronk of ai^
(iice an aban- chandize valued at 800 dollars, and the expences iflGOil'
duiy"mdc^°in ^" Claiming the property in a foreign court of vice-adminhf.

OP THE STATE OF NEW-TORK. US

The caufc was tried before his Honour Mr. Juftice Rad- ^^;^^*»

liffy at the Cttings in November 1802. ^^^-v**^^

The cafe, as it appeared in evidence, was as follows : Bordet

The plaintiff (hipped the articles in queftion, on board Haltet.

he fchooner Trimmer, bound from New-York to St. Jago ""7 ! ^TT
,_,,_, ,^^, ^ cafe of a reftl-

deCuba. On the 18th of May 1800, he embarked with tudon of goods

hk property in the veflel j which, during the courfe of th^ thc^portuSo''
fpfage was captured, and carried into the port of Kingfton, h^a^^Jri^^Jhcis
m the ifland of Jamaica, where (lie and her general cargo no<- bound to
were condemned ; but the trunk of the plaintiff, for which to thrirport of
he had interpofcd a claim, was acquitted. Notwithftand- iiiough kn'ad-
log, however, this acquittal, and the decree for reftoration, {jfSea^Stof
ihe agents of the captors refufed to deliver it up, unlefs the undcnJriicrf
fbintiff' would give fecurity* for its value; which, as a FMr.rcrrcr*)
jt 1.11 1 n 1, . °o*' "**' <^on-

ftranger, not bemg able to procure, they aaually opened elude the infu-

and took out the contents of the trunk, and the fame were, Sg errors fnTt',
for want of the fecurity demanded, left in their hands. On j}. J^J^^ ^^^"^^
the return of the plaintiff to New-York, in Nov. 1800, he afcboilnd,
abandoned to the defendant, and duly notified him of all , j ^^^^^
Ae antecedent circumflances. He alfo, after proving his from thi!i,thit
intereft by a bill of lading, figned and acknowledged by the entered an ap-
captain, fubmitted an account of his expenfes m tlie profc- p^rt of^tTe fcn-
CHtion of his claim for the goods infured i which, in an ave- {f"g thMrunk ;
lace account, apportionincr the whole, was fettled on the *" '^^'ch cafe,
nek of the policy, at 9 dollars 48 ct s per cent, by Mr. Fer- bound to deii-
lOBy who a£is for the defendant and other underwriters in 7y!^withou?fc-
idjuftmg claims againft them. Mr. Ferrers, however, tcf- ^ng^thc^vahTcr
tified, that though he was thus employed, and though the |^"i?[' ®^ * '^"
underwriters did ufually afTcnt to, and pay according to his
vports } ftill, he had no binding authority on them, for
iat Uiey often difputed his iiatemcnts ^ notwithflanding,
hey had not to his knowledge, on the prefent occafion, ei-
her afiented to or difTented from the calculation he had made.
To this teftimony, the counfel for the defendant objeft-
df and infilled that the plaintiff was not entitled to recover,
iverdifl was, however, taken by confcnt, in favour of the
daintiflfs for 978 dollars 74< cents, fubjed to the opinion of
he oourt) on the following points :

446 CASES IN THE SUPREME COURT

KEW.YOAK, Whether the plaintiff was entitled to recorer for a tOf
' tal lofs and the expenfes ? If fo, the verdicl to (land. Bu^
if, in the opinion of the court, the plaintiff was not entitled
to recover for the expenfes, but for a total lo& of die goods,
then the verdifb to be reduced to 902 dollars 90Gnts }
and if the plaintiff was not entitled to recover for a totdUsi
but for expenfes only, then the verdid to be entered for Tf
dollars 84 cents ; otherwife, a verdicl to be entered for die
defendant.

Hoffman for the plaintiff. From the fads prefentrito
the court, it is manifefl:, there was a capture of thevefiL
This operates as a technical total lofs, and, tfaefcfrR^
whether an acquittal fubfequently took place or BOtf
is immaterial \ for the capture alone is fufficient to wanat'
the abandonment. After this, the affured, who horn At
moment of capture becomes the agent of the affurer, le*
turns, and making a full avowal of what had taken place, iayv
I have done all I could ; but the event does not alter the
law, I am now, for the lirft time, able to communicate with
you and abandon. It is not, however, from the capture a-
lone that the plaintiff is entitled to abandon. A lob ef the
vopgc affords an equal right. Here the goods wefebomri
to St. Jago de Cuba, and the veffel was carried into Jamaica^
where fhe was condemned. The only queftion that can iiifc
is, wheilicr on Mr. Ferrers' fettlement of the aven^ afr**
count, the defendant is bound to pay what he has indorfU
on the policy to be due ? But fucli is the ruin brougkon'
this poor plaintiff, whofe little all has been locked u^^T
the refufal of the defendant to pay, ever fince ISOOytlfltl
rather than not have a decifion on the principal qocfisB*
this term, he is ready to give up his expenfes. As to Afli%f
without going minutely into the teftimony, the qiiefttal>
ought to refolve itfelf into this : What is the relative fiH*"-
tion of Mr. Ferrers with the defendant ? Alt claims, lAcrt'
nvade on the out-docr underviTiters, of whom the deicndflCi
is one, are referred to Mr. Ferrers. He gives his opjriok
whether liable to a total or a partial lofs. We do not bft*
that when he gives his fentiments if he totally miftakos ibft'
law, that they are, on the facls fubmittcd^ obliged to pay <

OP THE STATE OF NEW-TORK* r4*7

botalf whni only 2 partial lofs is due. But when an ave- KBW-TOU(,
cage lofii is acknowledged^ and the fettling it referred to ^J!^^-mi^
Uai» and he adjufts the fum^ then, as the agent of the uiv- Bovto
tewritersy they are bound by his report. This is not by HaUctt
ifading an authority to fettle a point of law, but as yielding •

a power over items of an account, the principles of which
ftey acknowledge. Nay, even allowing the underwriters
HSoonduded as to the principles, (till, if in law at all liaUe,
Aft quantum, except in cafes of erroneous calculation, can
nevar be queftioned. It is like the cafe of a peribn deput-
ed to avdit the amount of claims; when the balance is
tnstA^ it is, errors excepted, final. The doftrine ahready
Biied on as to the right of abandonment is not impaired by
IkUeqaeiit reftitution. For this the court will find authori-
:yin 8 Marlh. 484.

- Pendleton contra. A principal queftion in this caufe is
la to the ezpenfes in the vice-admiralty. The claim for
itHe rafts only on the report of Mr. Ferrers ; for this is the
mtf evidence in the cafe that any were incurred. Such
fecAiniony, however, cannot bind the underwriters; for
IL Ferrers himfelf dates his employment to be merely that
if nporting ; after doing which, his ftatement is frequent-
ydi&egarded, and his adjuftment difputed. This would
lem be, had Mr. Ferrers an obligatory authority. The
^ it, he is a mere examiner of accounts, and cannot bind
lispaacipals beyond the fcope of his authority. He ftates,
irprincipak had a right to diflent from his ftatements, of
llttdi the prefent ^Gtion is in itfelf the ftrongeft proof.
hu% queftion is certainly made, whether the abandonment
miin due fealbn. The veflel failed in May, was captured
^tha voyage, and the abandonment not made till Novern^
i« following. This, confidering the diftance of Jamaica,
raa a grols delay. We find, however, from the teftimony
f die captain of the veflel, that this property was acquitted.
Ae plaintiff, therefore, might have had it again had he fo
it^fed. It is a pofition not to be controverted, that every
omrt is invefted with power to enforce its own authority :
kvefbre, if after reftitution awarded, it was not obtained, it
luft have axifen from the negle£t of the plaintiff^ or Umc

448 CASES IN THE SUPREME COURT

NEW-YORK, other worfe caufe ; for, he might have applied to the anj^
and have obtained an order for it. In cafe of refblaly di^
procefs was eafy^ attachment for a contempt.* It is £ufl|^:
however^ that as the voyage was loft, that drnnfiaiioe
• See ante ^^"^^ j^ftify an abandonment. This will prefent a cjnetr
note 445* tiontothe court that has not, we believe, ever been deai»

ed. Whether an owner of goods, where the veflel in
he fhips is incapable of proceeding on her voyage, bym&i
t Aftipown- of any accident, is not obligedf to proceed with his gooii
SrJJT^P^^ fome other veflel ? Nothing of this fort appears to have hw
per does not ; determined. Suppofing him, however, bound, ouriit not dv
therefore, he . , , . « ^ . *j.

who does not anured to entitle him to a recovery, to ihew that nonMl

verbe* obUged could be obtained to forward the property ; or oiig^ 4|
to perform. infu^g^ to ihew, by way of defence, that there was? Tl|
principle is, that the captain ought to get a veflel^ ifiiicb v\
one be to be found ; and it is only in cafes of neceflky Aat
he is authorized to abandon the voyage ; if inhis.povf
to proceed, he ought to do fo \ had it been ocberwift^ it
ought to have appeared in the cafe. 2 Marflk S70. So ii
Manning v. Newnham, Park 168. Lord MansfiddhytdK
ftrefs of the cafe on the captain's not being aUe to get ancv
ther veflel to go on. It is fettled, that when the bottom i|
neceflfarily changed by fhifting the goods from one veflel 19
another, the underwriter continues liable* Sendiif (Xt^
goods, therefore, in another (hip, would not have enocBt-
ed the defendant ; and as it was the plaintiflF's didyiik
ought to make out his cafe by (hewing another veflel tflli
not be obtained. This, certainly, is more proper thpiiilV
the defendant to be put to prove a veflTel might hvre M
procured ; becaufe, the aflured is to be prefumed tolMfC
correfpondeiit where his property may be carriedi bi<«rif '^
underwriter is not. Befides, the plaiiitiflP wa$ on tliik
and a> he might have procured reftitution from the
admiralty, he may, admitting all the evidence an
be true, be now in another country with ail the | i nip(iy | l
his poflTeflion. ^ ^^

• Hoflfman in reply. That it is the duty of an i|9p(lhPi
goods, in cafe of capture and reftitution, to fend oa.^KjlA!
cles to the port of tlicir deftiuationJ>eforehe ca|i*W.dNi|iil>

OF THE STATE OF NEW-YORK. ♦«

•ooferi is a pofitiony till now, unheard of in infurance NBW-YORK,
He may, perhaps, do it under the general claufe, em- \^^^^^^
ering him, or his agents, to aft for the infurers j and, Bordcs
ina fide done, they may, perhaps, be liable. But no au- Hillett,
ity, we prefume, can he have to change a neutral into a '

gererit rifk, as it is probable muft be done, in fending
1 the port of a nation at war. But, allowing it to be as
ended, it ought to come from the defendant, becaufe It
rg^ as an excufe for not paying a total, but a partial
Tbe plain cafe is, there was a capture, and the voy-
totaDy defeated. Either event will juftifyan abandon-
t The reftitution is for the benefit of the affurer, who
profecute his claims upon it, by forcing the captors to

with their appeal 5 but, on no principle can it be con-
led, that the aiTured muft follow it up, to entitle him to
»ven This would deftroy the very intent of infurance,
€h is, in cafe of lofs, to put the underwriter in the place
he underwritten.

'er curiam delivered by Lewis C J. The objeftions to
plaintiff's recovery, on this ftatement of fafts, are,
ft. That he had no right to abandon after the acquittal
he property infured.

)L That the abandonment was out of time.
d. That he was bound to have procured another vefleL
€h. That the defendant was not bound by the adjuftment.
t is ftated in the cafe, that the veffel failed about the 17th
Hay 1800 ; but when (he was captured, or when con-
ttied, does not appear. It appears^ however, that though
trunk of goods^ on which the infurance was made, was,
die fentence of the court of vice admiralty decree to be
Bved, the plaintiff could not regain the poffeflion of it,
that he abandoned it to the underwriters, on the 22d of
bober following.

Vitlun what precife period an abandoimient ought to be
le^ has neter been determined. The time permitted to e^
fe between the condemnation, order of reftitution, and
Ddbnment in the prcfent inftance, connot be inferred
n any thing in the cafe. It is certain, however, that the

1 was total on the Md of Oftober, and has fo contmucd

4S0t CASES IN THE SUPREME COtTRT

^ov^Ett*^ to the prefent moment. The voyage to St Jago de C
' Was compleady broken up, and the plaintiflr has nefcr h
bi his power to convey the goods thither^ even had k h
__ incumbent on him fo to do, for he has not been abktore
ver the pofieffion of them. There is no ground then,
which either the firft, fecond, or third objeOions can be I
ported. Had the plainti£Feven recovered the pofleffiood
goods, ic would not, in my opinion, alter the cafe. Ife
re& intercourfe can be preftmied to fubfift between dies
nial ports of two belligerents ; and were the contitty^
fa£t, this is not a cafe, impofing an obligation on tkepli
dff to procure another veflfeL

The fourth is rather an objeflion to the quantnm of <
mages, than to the right of recovery. By the genenl p
miflion in the policy, to labour &c. without prejodke t
iSie infurer became liable to an average of the expefioe !
currcd in the attempt to recover the captured prapa
It is true, he was not bound by the adjuftment of Mv F<
rers, and was at liberty to have fliewn that it was enoneoc
But this was not even attempted. A circumftance wbk
when taken in connex